                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE


BURSON & SIMPSON LODGE          )
DEVELOPMENTS, INC.,

          Plaintiff/Appellant,
                                )
                                )                         FILED
                                ) Davidson Chancery No. 97-803-III
                                )                      March 5, 1999
VS.                             ) Appeal No. 01A01-9805-CH-00249
                                )                    Cecil Crowson, Jr.
THE METROPOLITAN GOVERNMENT )                      Appellate Court Clerk
OF NASHVILLE AND DAVIDSON       )
COUNTY, and THE METROPOLITAN )
PLANNING COMMISSION,            )
                                )
          Defendants/Appellees. )


        APPEAL FROM THE CHANCERY COURT OF DAVIDSON COUNTY
                      AT NASHVILLE, TENNESSEE
        THE HONORABLE CLAUDIA BONNYMAN, SPECIAL CHANCELLOR




GEORGE A. DEAN
PARKER LAWRENCE CANTRELL & DEAN
Nashville, Tennessee
ROBERT RUTHERFORD
RUTHERFORD, DEMARCO & WHITE
Nashville, Tennessee
Attorneys for Appellant


THOMAS G. CROSS
Metropolitan Attorney
Nashville, Tennessee
Attorney for Appellees


REVERSED AND REMANDED




                                                       ALAN E. HIGHERS, J.



CONCUR:

DAVID R. FARMER, J.

HEWITT P. TOMLIN, JR., Sp. J.
     Burson & Simpson Lodge Developments, Inc. (“Burson & Simpson”) appeals from
the trial court’s affirmance of a decision rendered by the Nashville and Davidson County

Metropolitan Planning Commission (the “Planning Commission”), whereby the Planning

Commission characterized a proposed amendment to a planned unit development as a

“basic change in development concept,” and whereby the Planning Commission

disapproved the amendment. We find that, based upon the record before this Court, the

Planning Commission’s disapproval of the proposed amendment was illegal, arbitrary, or

capricious and, therefore, we reverse the holding of the trial court.



                                    Facts and Procedural History



        This case involves an approved and partially developed general commercial planned

unit development, as contemplated by the zoning ordinance for the Metropolitan

Government of Nashville and Davidson County. See Metro. Gov’t Zoning Ordinance §

17.100.020(A) (1997). Prior to the adoption of this planned unit development, the subject

land was zoned as an “RM8" high-density residential district.                         As required by the

Metropolitan Government’s zoning ordinance, the master development plan that received

preliminary approval by both the Planning Commission and the Metropolitan Council

described “the utilization of structures” and “the land area to be devoted to various uses

and activities.” See id. § 17.108.070(A)(3), (B). The approved preliminary plan designated

the use for each tract of land within the planned unit development as either: (1) retail; (2)

fast food; or (3) fast food/office.1 The particular tract that is the subject of this lawsuit (“tract

5") included 7.3 acres, and was designated for retail use. Moreover, as required by the

zoning ordinance, the approved preliminary plan also set forth the approximate height of

the retail structure that was to be built on tract 5, being under approximately 20 feet.



        In October 1996, Burson & Simpson filed an application with the Planning

Commission, seeking to amend the master development plan in order to construct a three-

story suburban lodge (motel) on tract 5 in lieu of the retail structure that was set forth in the

plan. The height of the proposed motel was to be 39 feet (nearly double the height of the


1. Sinc e the appr oval o f the p lanne d unit development, a Kroger store and a Krystal’s have been constructed
within the de velopm ent.

                                                       2
building that was set forth in the approved preliminary plan). The Planning Commission

heard the matter on December 12, 1996, at which time it adopted a resolution stating that

Burson & Simpson’s proposed amendment “is given DISAPPROVAL AND REMANDED

TO COUNCIL AS AN ‘AMENDMENT’ . . . .” The resolution further stated, “The Planning

Commission determined that the proposed changes in use and building height were not

appropriate in this location, and remanded such changes back to the Council as a basic

change in development concept for this planned unit development.”



       No further action was taken on an administrative level. Subsequently, however,

Burson & Simpson filed a petition for writ of certiorari in the Davidson County Chancery

Court. After the writ was issued, the administrative record was transmitted, and the matter

was heard, the trial court entered an order that stated that Burson & Simpson was “not

entitled to relief under the writ of certiorari.” Accordingly, the trial court’s order affirmed the

decision of the Planning Commission.



       On appeal, Burson & Simpson contends that its proposed amendment amounted

to no more than a minor modification of the development plan, and that its proposed

amendment should have been approved by the Planning Commission. It presents this

Court with the following issue:

        I.  Whether there is any basis upon which the Metropolitan Planning
       Commission could validly deny the application submitted by Burson &
       Simpson for an amendment to an existing planned unit development?

The Metropolitan Government and the Planning Commission further present this Court the

following additional issue:

        II.    Should the trial court have dismissed [Burson & Simpson’s] claims for
       failure to exhaust administrative remedies?”




                                            Analysis

       As stated earlier, this case was brought before the trial court by writ of certiorari.

               The writ of certiorari may be granted whenever authorized by law, and
       also in all cases where an inferior tribunal, board, or officer exercising judicial
       functions has exceeded the jurisdiction conferred, or is acting illegally, when,
       in the judgment of the court, there is no other plain, speedy, or adequate


                                                3
       remedy.

Tenn. Code Ann. § 27-8-101 (Supp. 1998). Our supreme court has stated the following

regarding judicial review pursuant to such writs:

       The courts must determine whether the action of the [administrative body] in
       the exercise of its administrative, judicial or quasi-judicial function was illegal
       or in excess of jurisdiction. Tenn. Code Ann. Sec. 27-8-101. If the exercise
       of authority by the governmental body can be classified as arbitrary or
       capricious, courts have routinely provided relief.

McCallen v. City of Memphis, 786 S.W.2d 633, 640 (Tenn. 1990). Accordingly, if the

Planning Commission’s determinations in the instant case were either arbitrary or

capricious, Burson & Simpson would be entitled to relief. Our supreme court has also

provided the following guidance in reviewing cases such as the instant one:

       [T]he court’s primary resolve is to refrain from substituting its judgment for
       that of the local governmental body. An action will be invalidated only if it
       constitutes an abuse of discretion. If “any possible reason” exists justifying
       the action, it will be upheld. . . . [A]dministrative decisions are presumed to
       be valid and a heavy burden of proof rests upon the shoulders of the party
       who challenges the action.
                                               ....
       [T]he court should refrain from substituting its judgment for the broad
       discretionary authority of the local governmental body. An invalidation of the
       action should take place only when the decision is clearly illegal, arbitrary, or
       capricious.

Id. at 641-42. Therefore, we must affirm if there exists material evidence in the record to

support the Planning Commission’s determinations. See Davis Group, Inc. v. Metropolitan

Gov’t of Nashville and Davidson County, 912 S.W.2d 178, 180 (Tenn. App. 1995).



       This case involves two administrative determinations, which were judicial or quasi-

judicial in nature, that were made by the Planning Commission. First, the Planning

Commission determined that Burson & Simpson’s proposed amendment amounted to a

basic change in concept or general development policy. 2                   Second, the Planning

Commission disapproved the proposed amendment, instead of recommending adoption

of the amendment which required concurring approval from both the Planning Commission


2. One section of the Metropolitan Government’s zoning ordinance that governs amendments and changes
to adopted preliminary master development plans for planned unit developments provides the following:

               Any proposed amendment which involves a basic change in concept or general
       development policy in the judg men t of the p lanning commission shall be deemed as an
       amendment to the preliminary master development plan and the planning com mis sion shall
       make its recommendation to the metropolitan county council for concurrence.

Metro. Gov’t Zoning Ordinance § 17.108.230.

                                                  4
and the Metropolitan Council.



        We find that the Planning Commission’s first determination, that Burson &

Simpson’s proposed amendment amounted to a basic change in concept or general

development policy, was supported by material evidence and was not illegal, arbitrary, or

capricious. It is clear from the record that Burson & Simpson’s proposed amendment

sought to introduce into the planned unit development a use classification that was not

contemplated by the approved preliminary plan.                      As this Court previously implicitly

recognized in the unreported case Evans v. Metropolitan Planning Comm’n of Nashville

and Davidson County, No. 01A01-9303-CH-00115, 1993 WL 350132 (Tenn. App. Sept.

15, 1993), “substantive amendments impacting such items as the PUD’s . . . activity types”

require approval from both the Planning Commission and the Metropolitan Council under

section 17.108.230 because such amendments involve a basic change in concept or

general development policy.



        Furthermore, the Planning Commission’s first determination, that the proposed

amendment amounted to a basic change in concept or general development policy,

amounted to a determination under a “catch-all” provision that the proposed amendment

would require concurrence by the Metropolitan Council in order to be adopted.3 Section

17.108.215 of the zoning regulation also sets forth a list of specific instances where

proposed amendments require concurrence by the Metropolitan Council for adoption. As

explained in the following paragraph, one of these instances is applicable to the instant

case and, therefore, we find no error in the Planning Commission’s first determination.



        In this case, Burson & Simpson sought to introduce a suburban lodge, or motel, into

the previously approved general commercial planned unit development. While such a use

might, in most instances, be characterized as “transient habitation commercial activities,”4




3. See supra note 2.

4. “Transient habitation commercial activities include the provision of lodging se rvices to tra nsient gu ests.”
Metro. Gov’t Zoning Ordinance § 17.12.080(25).

                                                       5
Burson & Simpson expressly described its intended use as “semitransient.”5 In fact, it

specifically represented to the Planning Commission that its proposed lodge was not

intended for transient guests, and that its activities would satisfy the definition of

“semitransient” under the zoning ordinance. It represented to the Planning Commission,

among other things, the following:

                The typical Suburban Lodge does not cater or attract a transient
         person. The typical site is not located directly adjacent to an exit ramp from
         the adjacent interstate highway but away from the transient traveler passing
         through who would hop off the interstate highway just to spend the night and
         leave the next day.

Under the Metropolitan Government’s zoning ordinance, however, such “semitransient”

activities are classified as a residential use, and not as a commercial use. Metro. Gov’t

Zoning Ordinance § 17.12.060. As presently adopted, the planned unit development at

issue in this case is limited as being a commercial planned unit development. The uses

that are permitted within a commercial planned unit development, which are specifically

listed in the zoning ordinance, do not include “semitransient residential activities.”6 See id.

§ 17.100.060, table 17.100.060. However, “the metopolitan planning commission and the

metropolitan county council may consider separate types of planned unit developments,

such as residential and commercial planned unit development, general, within a

consolidated master development plan as a single administrative procedure.”                                       Id. §

17.92.080. Moreover, planned unit developments may be amended and changed from one

type to another, i.e., from commercial to residential. Id. § 17.108.215(A)(1). Accordingly,

Burson & Simpson’s proposed amendment essentially seeks the creation of two separate

types of planned unit developments within the master development plan that was

previously given approval in this case. Such a change, from commercial to residential,

requires concurrence by the Metropolitan Council under section 17.108.215 of the zoning

ordinance, and, therefore, the Planning Commission’s first determination did not amount



5. “Semitransient residential activities” is a class of residential activities whereunder “[t]he occupancy of living
accommodations [is] pa rtly on a mo nthly o r long er ba sis an d par tly for a sho rter time period, bu t with less than
thirty percent of the living units . . . being occupied on a less-than-monthly basis.” Id. § 17.12.060(C).

6. We find it relevant to note that semitransient residential activities are permitted by right in only three types
of comm ercial districts: multiple residential and office (MRO); office and service park ing (OP); and core
commercial frame (CF ). Metro. Gov’t Zoning Ordinance § 17.60 .020(A)(2). See also id. §§ 17.56.020, .040,
.110. They are not perm itted b y right in other commercial districts, including, for example, limited commercial
service (CSL) districts, commercial service (CS) districts, and general commercial (CG) districts. Id. §
17.60.02 0(A)(2). See also id. §§ 17.56.070, .080, .090.

                                                           6
to reversible error. Because the Planning Commission’s first determination was proper,

we turn to its second determination, that Burson & Simpson’s Amendment should be

disapproved.



         Regarless of whether a planned unit development is commercial or residential, each

activity that is permissible within the development is permitted “only when such activities

are deemed appropriate” by the Planning Commission and the Metropolitan Council.

Metro. Gov’t Zoning Ordinance §§ 17.96.050, 17.100.060. Unlike zoned districts, where

specified use classifications and activities are deemed “permitted by right” under the zoning

ordinance, the Planning Commission and the Metropolitan Council are afforded discretion

in determining whether particular activities are appropriate for a particular planned unit

development. As explained earlier, however, the Planning Commission’s determination

must not be illegal, arbitrary, or capricious. Otherwise, the commission’s determination will

amount to an abuse of discretion.



         In Burson & Simpson’s brief, it argues that its amendment should have been

approved because its proposed motel for semitransient residential activities satisfies the

RM8 zoning that underlies the planned unit development.7                                    We find this argument

unpersuasive, however. As long as the planned unit development remains approved and

is not canceled by the Planning Commission, along with concurrence from the Metropolitan

Council, and as long as the subject land area (tract 5) remains within the development,8

the planned unit development overlays the RM8 zoning on the county’s official zoning map.

See id. § 17.108.180. Therefore, the underlying RM8 zoning is replaced by the planned

unit development, and the Planning Commission was not required to approve the proposed



7. Sem itrans ient re side ntial a ctivitie s are perm itted b y right in RM8 districts. Metro. Gov’t Zoning Ordinance
§ 17.24.020(A)(3).

8. Land area may be added to or removed from the planned unit development by approval from the Planning
Comm ission, along with concurrence from the Metropolitan Cou ncil . Metro. Gov’t Zoning Ordinance §
17.108.215(A)(2). In this case, however, Burson & Simpson has not sought the removal of tract 5 from the
planned unit development. Leaving tract 5 within a planned unit develop men t while reclas sifying it to
“sem itransient residential activities” provides at least one apparent advantage to Burson & Simpson over
outright removal from the planned unit development. While “semitransient residential activities” are ordin arily
limited as described in footnote 5 above (“partly on a m onth ly or lon ger b asis and p artly for a shorter period
. . . .”), “th e pro portio nal lim itation of les s-tha n-m onth ly occ upa ncy may be wa ived” in res ident ial plan ned unit
develop men ts as deemed appropriate by the Planning Commission and the Metropolitan Council, provided
that no un its are less than one -week occup ancy. Id. §§ 17.12.060(C), 17.96.110.

                                                              7
amendment based simply upon compliance with RM8 zoning requirements.



        During the course of the Planning Commission’s hearing, certain concerns were

raised relating to how the proposed change would affect neighboring residents. Among

those concerns was, “what happens if this business fails and this becomes a transient

motel or worse, a place for homeless to congregate.” No material evidence, however, was

introduced to demonstrate any likelihood that the proposed motel would fail, and “mere

beliefs, opinions and fears of neighborhood residents do not constitute material evidence.”

See Sexton v. Anderson County, 587 S.W.2d 663, 666 (Tenn. App. 1979). Therefore,

based upon the record in this case, any expressed fear of business failure did not amount

to material evidence sufficient to support the Planning Commission’s disapproval.



        Review of the transcript from the Planning Commission’s hearing reveals that the

Planning Commission’s disapproval was based primarily upon the proposed height of the

motel,9 which was nearly double the height of the previously approved retail building.

Under the specific facts of this case, however, disapproval based upon height was

improper. Regardless of whether tract 5 remained a part of a general commercial planned

unit development, or whether it was changed, either back to its underlying RM8

classification or to a residential planned unit development tract, the proposed building

height was governed by express guidelines already set forth in the zoning ordinance.

Among other restrictions, buildings within a general commercial planned unit development

cannot exceed a height of 45 feet above the street line. Metro. Gov’t Zoning Ordinance

§§ 17.64.210, 17.100.080, table 17.64.210. Buildings within the underlying RM8 district

cannot exceed three stories in height. Id. § 17.28.370(A). Last, buildings that are part of

a residential planned unit development cannot exceed three stories in height. Id. §§

17.28.370(A), 17.96.180. Burson & Simpson’s proposed motel satisfies any of these

height requirements. Accordingly, because Burson & Simpson’s proposed motel complied

with the preestablished guidelines governing height that are set forth in the zoning

ordinance, and based upon the unique facts of this case, disapproval based upon height


9. Disc uss ion als o rela ted to the “u nique ” topo grap hy of th e are a, bu t this, a gain, perta ined to how the
prop ose d heig ht rela ted to this “u nique ” topo grap hy.

                                                         8
was illegal, arbitrary, or capricious.



       We also note that the Planning Commission’s disapproval was based, albeit to a

lesser degree than height, upon a misapprehension of the procedures governing the

“approval” process of Burson & Simpson’s proposed amendment. The transcript from the

Planning Commission’s hearing clearly demonstrates that the Commission believed that,

regardless of whether it approved or disapproved Burson & Simpson’s proposed

amendment, the Metropolitan Council would have the “final say” on whether the

amendment was approved and adopted. In fact, the record suggests that it wanted the

Metropolitan Council again to review the matter and to have the “final say” on the matter.

While the Planning Commission’s belief would have been true if the Planning Commission

had recommended approval of the amendment, the Planning Commission’s belief did not

apply in this case because the proposed amendment could only have been adopted

through concurring approval between both the Planning Commission and the Metropolitan

Council. Id. §§ 17.108.215, 17.108.220. Therefore, the Planning Commission’s reliance

upon further action by the Metropolitan Council was arbitrary, since its reliance was

premised upon an incorrect conclusion of law.



       Last, the Metropolitan Government and the Planning Commission asserted in the

trial court that this case should be dismissed for failure to exhaust administrative remedies.

Moreover, they have presented this issue to this Court for review. The trial court’s

memorandum opinion reviewed this issue by stating the following:

             The defendants assert that the plaintiff must secure a decision from
       the Council in order to exhaust its remedies. Consequently, this Court
       should dismiss the action for lack of subject matter jurisdiction.

               The Court finds that the plaintiff has exhausted its administrative
       remedies: the code provision regulating amendments to PUDs requires that
       the MPC send its recommendation regarding the amendment to the Council
       for “concurrence.” COMZO § 17.108.230. Since the MPC recommended
       against the change applied for by the plaintiff, concurrence here means the
       plaintiff loses and must file its lawsuit. If there is denial of concurrence, there
       is no remedy mentioned. The law does not require pursuit of an
       administrative remedy if it would by a useless effort, as here. Bigger v. Allen,
       192 Tenn. 426, 241 S.W .2d 516 (Tenn. 1951).

We concur with the trial court’s reasoning and result. Because the Planning Commission



                                               9
did not approve the proposed amendment, the amendment could not have been adopted,

regardless of whether they brought the matter before the Metropolitan Council.



                                     Conclusion



      Accordingly, we reverse the trial court’s judgment and remand for further

proceedings consistent with this opinion. Costs of this appeal are taxed against the

Metropolitan Government of Nashville and Davidson County and the Metropolitan Planning

Commission, for which execution may issue if necessary.




                                                     HIGHERS, J.

CONCUR:


FARMER, J.


TOMLIN, Sp. J.




                                          10
