                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 January 25, 2012 Session

         TOMMY WRIGHT, ET AL. v. THE CITY OF SHELBYVILLE
               BOARD OF ZONING APPEALS, ET AL.

                 Appeal from the Chancery Court for Bedford County
                      No. 28387    Larry B. Stanley, Jr., Judge


                No. M2011-01446-COA-R3-CV - Filed October 31, 2012


This case involves a prolonged dispute over a proposed stone quarry that the plaintiff
landowners, the Wrights, wished to establish on their property. While their application was
pending, the city changed the zoning ordinance to rezone the Wrights’ property so that a
quarry was no longer permitted as a conditional use. The Wrights filed suit, and on appeal
this court held that the notice of the zoning amendment had been defective and that the
zoning change was therefore void. The Wrights subsequently asked the Board of Zoning
Appeals to consider their application under the property’s original zoning, but the BZA
refused to put the application on its meeting agenda. The Wrights filed a petition for writ of
certiorari. The trial court found that the BZA’s action was arbitrary and illegal, but ruled that
the Wrights were nonetheless precluded from obtaining any relief because of the operation
of res judicata. We reverse the trial court’s dismissal of the petition on the basis of res
judicata, because we find that doctrine inapplicable. We agree with the trial court that the
BZA’s actions were arbitrary and capricious.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed in
                      Part, Reversed in Part, and Remanded

P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the Court, in which F RANK G.
C LEMENT, J R. and R ICHARD H. D INKINS, JJ. joined.

Josh A. McCreary, Murfreesboro, Tennessee, for the appellants, Tommy Wright, Norma
Wright, Wright Paving Company, Inc., and Custom Stone, LLC.

Ginger Bobo Shofner, Shelbyville, Tennessee; Robert M. Burns, Nashville, Tennessee, for
the appellees, The City of Shelbyville Board of Zoning Appeals, The City of Shelbyville,
Tennessee, and Ed Dodson, Director of the Shelbyville Planning and Codes Department.
                                               OPINION

                  I. F IRST A PPLICATION FOR A C ONDITIONAL U SE P ERMIT

       This is the second time the parties have appeared before this court regarding a
proposed quarry. The ruling generated from the first case can be read at Wright v. City of
Shelbyville, M2009-00321-COA-R3-CV, 2009 WL 3631019 (Tenn. Ct. App. Nov. 3, 2009)
(Rule 11 perm. app. denied April 14, 2010). A detailed account of the facts behind the
parties’ dispute is set out in that opinion. A brief factual summary is stated here.

       On February 12, 2004, Tommy Wright and Norma Wright, and their businesses
Wright Paving Company, Inc. and Custom Stone, LLC (“the Wrights”), sent a letter to the
Shelbyville Board of Zoning Appeals (“the BZA”) requesting approval of a conditional use
permit to open a rock quarry on a 92 acre property that they owned within the Shelbyville city
limits. Their property was zoned I-2, for industrial use, when they filed their permit
application. The Shelbyville Zoning Ordinance included mining and quarrying as permitted
uses in an I-2 zone, subject to approval as a conditional use.1

        A hearing was scheduled, but before it was conducted, the Wrights requested by letter
that the application be removed from the agenda of the February meeting so that additional
engineering studies could be performed. In a subsequent letter from their engineers, the
Wrights stated their intention that their application remain “pending.” The letter also stated
that the engineer could not find in the zoning regulations a time limit specified for keeping
an application for special condition pending and concluded with “please notify me if, at any
time, the application will need to be resubmitted to be considered, and we will initiate the
appropriate actions.”

       The Wrights were never notified of a time limit for hearing of their application, but
the Shelbyville City Council subsequently amended the city’s zoning ordinance by passage
of Ordinance 742 on July 8, 2004. Ordinance 742 removed mining and quarrying as a
conditional use in an I-2 district and created a new industrial zoning district designated as I-3,
which included mining and quarrying as a conditional use. The new district did not apply
to any designated areas, but was characterized as a “floating” district that could be placed on
property anywhere in the city.

        The Wrights asked the Shelbyville Planning Commission to consider their earlier-filed


        1
         The permit sought is variously referred to in the documents before us as one for a conditional use,
a special exception or for special conditions. For the sake of simplicity, we will simply refer to it as a
conditional use permit. See also footnote 6.

                                                    -2-
application for a conditional use permit at its November 18, 2004, meeting. The Planning
Commission advised them that it would not consider the plan unless it was submitted under
the new I-3 zoning provisions. Plaintiffs filed an application to have their property rezoned
to I-3, and the Commission denied the application.

        Plaintiffs then sued the City claiming that there were numerous irregularities in the
manner in which Ordinance 742 was adopted. The trial court granted partial summary
judgment to Shelbyville, holding that Ordinance 742 was validly enacted and that Plaintiffs
did not have a vested right to have their application considered under the zoning in effect
prior to the enactment of that ordinance. On appeal, this court held that the challenged notice
did not meet the standard of fair notice that can only be met if the content of the notice “gives
the average reader reasonable warning that land in which he has an interest may be affected
by the legislation proposed.” Wright v. City of Shelbyville, 2009 WL 3631019, at *4.
Accordingly, we held that Ordinance 742 was invalid. Id. The City of Shelbyville filed a
Rule 11 Tenn. R. App. P. application for permission to appeal our decision to the Tennessee
Supreme Court, which was denied on April 14, 2010.

                               II. S UBSEQUENT P ROCEEDINGS

       Shortly after this court filed its opinion in the first case on November 3, 2009, the
Wrights wrote the Codes Director to inform him that it was their intention to “have the
application that has been pending for a Special Condition in the I-2 District heard at this
time.” The letter recounted the history of the application and stated that “in view of the
recent Court of Appeals decision, the I-3 Zone no longer exists.”

        After the Tennessee Supreme Court denied the City permission to appeal our decision,
on May 4, 2010, the Wrights’ attorney wrote to City Codes Director, Ed Dodson, asking that
their long-pending 2004 application for a conditional use in an I-2 zone be placed on the
agenda for the next meeting of the Board of Zoning Appeals, since the decision of this court
had rendered the I-3 zone invalid. They also announced that their engineering firm would
be submitting an updated application. Shortly thereafter, the Wrights did file an updated
application.

        The city’s response came in the form of a letter signed by Mr. Dodson and the City
Attorney. It stated that the Wrights’ 2004 application would not be placed on the agenda and
set out two reasons for the decision. The City asserted that the Wrights had withdrawn that
2004 application and that a valid I-3 zoning district had since been added to the zoning




                                               -3-
ordinance, thereby precluding any consideration of the proposed quarry in an I-2 zone.2 It
also stated that because the new application included nine acres that were not part of the
original plan, it was not identical to the 2004 application, and thus “has no claim to any
benefit of previous law.”

       The Wrights appealed the City’s administrative decision to the BZA, in accordance
with that body’s authority under Tenn. Code Ann. § 13-7-207(1). The BZA conducted a
hearing on June 24, 2010. The members of the Board voted, without discussion, to uphold
the decision of the planning director.

       The Wrights filed a Petition for Writ of Certiorari in the Bedford County Chancery
Court on July 23, 2010. Judge Russell, who had rendered the decision in the first case,
recused himself, and Judge Stanley was appointed to sit by interchange. The court granted
the writ and ordered the record to be sent up for review.

        The court conducted a hearing on the merits of the Plaintiffs’ petition for certiorari
on May 2, 2011. The City Attorney argued that the petition was barred by the doctrine of res
judicata and entered this court’s 2009 opinion in Wright v. City of Shelbyville into the record.
The trial court announced its decision in an order entered on May 13, 2011. The court
dismissed the petition, agreeing with the city that it was barred by the doctrine of res
judicata. However, the court also held that if it were not for the operation of res judicata,
the actions of the BZA would be considered arbitrary and capricious and would have merited
reversal under the standards for writ of certiorari. This appeal followed.

                                          III. R ES J UDICATA

       The trial court ruled that the Wrights were not entitled to relief because of the
operation of res judicata. A trial court’s decision that a subsequent lawsuit is barred by
principles of res judicata presents a question of law which this court reviews de novo. In re
Estate of Boote, 198 S.W.3d 699, 719 (Tenn. Ct. App. 2005).

        The doctrine of res judicata bars a second suit between the same parties or their
privies on the same cause of action with respect to all issues which were or could have been
litigated in the former suit. Creech v. Addington, 281 S.W.3d 363, 376 (Tenn. 2009);
Richardson v. Board of Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995). The doctrine is based
on the public policy favoring finality in litigation. It does not depend on the correctness or


        2
          The second rezoning was apparently accomplished after this court filed its opinion in the first case,
but before the Supreme Court declined to review that opinion. The validity of the second rezoning is not at
issue in this case, but only its applicability to Plaintiffs’ property.

                                                     -4-
fairness of the first judgment, so long as that judgment was a valid one. Lee v. Hall, 790
S.W.2d 293, 294 (Tenn. Ct. App. 1990).

       The BZA’s arguments in the trial court and on appeal, as well as the trial court’s
order, clearly identify the holding that is at issue. The trial court explained the background
and basis of the res judicata argument:

               On the 18th day of December 2008, Judge Lee Russell signed an order
       which stated that the City acted properly in giving notice to the public
       regarding the rezoning ordinance. Further, he stated that “the Plaintiffs failed
       to offer evidence of substantial construction and/or significant liabilities so as
       to entitle the Plaintiffs to a vested right to have their request for a zoning
       change considered under the 1-2 zoning classification of the zoning ordinance
       which was in effect prior to the July 2004 ordinance amendment. The City’s
       refusal to permit the Plaintiff’s request for a zoning amendment to be
       considered pursuant to the former 1-2 zoning ordinance was therefore, proper
       as a matter of law, and the City is entitled to a summary judgment in its favor
       on that issue.”

               The ruling was appealed and the only issue raised on appeal was the
       notice of the proposed zoning change. The Court of Appeals reversed the
       Chancery Court’s ruling and stated that notice was improper. Therefore, an
       I-3 zone did not exist at the time that ruling was published on November
       3, 2009.
                                                  ...
               This Court must now decide if the prior order from 2008 precludes
       consideration of the Writ of Certiorari before it. The Complaint alleged that
       the Planning Commission failed to grant a hearing on whether the Plaintiffs
       would be granted a special exception under its I-2 zone and be allowed to run
       a quarry. Evidently, the Chancery Court heard proof, not only on whether the
       denial of a hearing was proper, but also if a hearing was granted, whether the
       Plaintiffs would qualify for a special exemption. The Court at that time placed
       the burden on the Plaintiffs to prove “substantial construction and/or
       significant liabilities so as to entitle the Plaintiffs to a vested right to have their
       request for a zoning change considered by the Commission.” This Court has
       no idea whether proper procedure was followed by the Chancery Court of
       Shelbyville, nor whether it made a correct statement of law and finding of fact.
       However, an appeal was taken and the Plaintiffs failed to challenge the
       findings and procedure followed. It is this Court’s opinion that failure to raise
       that issue on appeal bars them from seeking this Writ. (emphasis added).

                                                 -5-
       Obviously, the trial court based its res judicata ruling on the holding in the first case
regarding the Wrights’ failure to establish that they had a vested right to have their 2004
application considered under the prior zoning ordinance i.e., before the rezoning
accomplished by Ordinance 742 in 2004.

        The City describes the trial court’s decision herein as a finding that the Wrights’
argument that they had “a right for their application to be considered under the prior zoning
law in existence in February 2004, had been litigated previously with a ruling that no such
right existed, thus the [Wrights] were barred by the doctrine of res judicata from attempting
to reargue that they were entitled to be heard under prior law.”

       The principle of vested rights has no relevance to this appeal because of this court’s
decision that Ordinance 742 was invalid. In other words, the Wrights are not seeking
approval under a prior zoning ordinance before it was amended because, in effect, the
rezoning attempted through Ordinance 742 was not accomplished.

       Within the context of zoning law, “vested rights” usually involves the question of
whether a party has taken action in good-faith reliance on a permit that the zoning body
attempts to revoke on the basis of a defect in the permit or some subsequent change in the
controlling law. Capps v. Metro. Gov’t of Nashville & Davidson County, M2007-01013-
COA-R3-CV, 2008 WL 5427972 (Tenn. Ct. App. Dec. 31, 2008) (no Tenn. R. App. P. 11
application filed); Chickering Ventures, Inc. v. Metro. Gov’t of Nashville & Davidson
County, No. 88-184-II, 1988 WL 133527, at *3 (Tenn. Ct. App. Dec. 16, 1988) (citing Moore
v. Memphis Stone & Gravel Co., 339 S.W.2d 29 (Tenn. Ct. App. 1959)).

         “The concept of a vested right in a zoning, which has long been recognized in
Tennessee, allows property owners, who have acquired the requisite ‘vested’ interest under
an existing zone, to use and develop the property pursuant to said zone even if a subsequent
zoning ordinance is enacted.” Westchester Co., LLC v. Metro. Gov’t of Nashville and
Davidson County, 2005 WL 3487804, at *3 (Tenn. Ct. App. December 20, 2005). Rights
under an existing ordinance do not vest until substantial construction or substantial liabilities
are incurred relating directly to construction. State of Tennessee, ex rel. SCA Chemical
Waste Services v. Konigsberg, 636 S.W.2d 430, 437 (Tenn. 1982). In summary, a landowner
who asserts a vested right to develop under a prior zoning ordinance must demonstrate good
faith reliance on final prior government approval coupled with substantial expenditures or
liabilities incurred that relate directly to construction.

       That is simply not the factual situation here. In our earlier opinion, we held that




                                               -6-
because of defective notice, Ordinance 742 was invalid.3 Wright v. City of Shelbyville, 2009
WL 3631019 at *4. Because it was invalid, it never took effect. Under the void ab initio
doctrine, “an invalid statute or ordinance is treated as though it never existed.” See Edwards
v. Allen, 216 S.W.3d 278, 289 (Tenn. 2007). Consequently, the zoning ordinance in effect
prior to the adoption of Ordinance 742 was once again the law as if Ordinance 742 had never
been adopted.

       The Wrights were entitled to have their application considered under the only zoning
in place at the time of their application. There was no “prior” zoning, no subsequent (2004)
amendment, and no need for the Wrights to assert the vested rights theory. The Wrights’
property remained zoned I-2, a category that allowed quarries as a conditional use.

       We therefore reverse the trial court’s holding that the Wrights’ petition is barred by
res judicata. The Wrights’ ability to have their application considered under the zoning law
that existed when they applied does not rest upon the vested rights theory. Therefore, any
holding in the earlier case on that theory is not relevant herein.

                                 IV. T HE M ERITS OF THE P ETITION

       The Wrights’ petition challenged the decision of the BZA, made June 24, 2010,
approving the Codes Director’s refusal to send the Wrights’ application for approval of a
conditional use to operate a rock quarry and crusher to the BZA for consideration.

        The trial court stated that, if its res judicata holding did not preclude examination of
the merits of the Wrights’ petition, i.e., if that holding were reversed on appeal, it would hold
that the BZA’s action was arbitrary and capricious because the decision to deny a hearing
was based either on incorrect assumptions regarding zoning laws or the facts relating to the
application and if it was valid at that time.

        A. Standard of Review



        3
         Although we did not specifically say so in our earlier opinion, it is clear that Ordinance 742 was not
merely voidable, but void ab initio. We acknowledge that an exception to the void ab initio doctrine exists
within the context of zoning where a zoning ordinance has remained unchallenged over a significant period
of time. As this court has stated, “[a]fter long public acquiescence in the substance of an ordinance, public
policy does not permit such an attack on the validity of the ordinance because of procedural irregularities.”
Hutcherson v. Criner, 11 S.W.3d 126, 134 (Tenn. Ct. App. 1999). See, also, Metropolitan Gov’t of Nashville
v. Hudson, 148 S.W.3d 907 ((Tenn. Ct. App. 2003). In this case, there is no suggestion of long public
acquiescence to Ordinance 742 or of property owners taking action in reliance on that ordinance. To the
contrary, the Wrights promptly challenged its validity and obtained a ruling striking it down.

                                                     -7-
        Judicial review of a decision by a local board of zoning appeals is obtained by filing
a petition for common law writ of certiorari. Harding Academy v. Metro Gov’t of Nashville
and Davidson County, 222 S.W.3d 359, 363 (Tenn. 2007); McCallen v. City of Memphis,
786 S.W.2d 633, 639 (Tenn. 1990); Moore & Associates, Inc. v. West, 246 S.W.3d 569, 576
(Tenn. Ct. App. 2005). If the writ is issued, the board is ordered to send its record up for
review so that the court can determine whether the petitioner is entitled to relief. Lewis v.
Bedford County Bd. of Zoning Appeals, 174 S.W.3d 241, 245 (Tenn. Ct. App. 2004); Clark
v. Metropolitan Gov’t of Nashville and Davidson County, 827 S.W.2d 312, 316 (Tenn. Ct.
App. 1991).

       The scope of review under the writ is very narrow. It is limited to an inquiry into
whether the BZA exceeded its jurisdiction, followed unlawful procedure, acted illegally,
fraudulently, or arbitrarily, or acted without material evidence to support its decision. BMC
Enterprises, Inc. v. City of Mt. Juliet, 273 S.W.3d 619, 624 (Tenn. Ct. App. 2008); Lewis v.
Bedford County Board of Zoning Appeals, 174 S.W.3d at 245; Lafferty v. City of Winchester,
46 S.W.3d 752, 759 (Tenn. Ct. App. 2000).

        Our Supreme Court has stated that “illegal, arbitrary or fraudulent actions include: (1)
the failure to follow the minimum standards of due process; (2) the misrepresentation or
misapplication of legal standards; (3) basing a decision on ulterior motives; and (4) violating
applicable constitutional standards.” Harding Academy v. Metro Gov’t of Nashville and
Davidson County, 222 S.W.3d at 363 (citing Hoover, Inc. v. Metro Board of Zoning Appeals,
924 S.W.2d 900, 905 (Tenn. Ct. App. 1996)).

       B. The BZA Decision

       The BZA decision at issue resulted from its review of the Codes Director’s
determination that the Wrights’ application for conditional use in an I-2 zoning district could
not be considered by the BZA. See Tenn. Code Ann. § 13-7-207(1). A brief recitation of
events leading up to the BZA hearing is in order.

        Shortly after this court filed its opinion in the first case on November 3, 2009, the
Wrights wrote the Codes Director to inform him that it was their intention to “have the
application that has been pending for a Special Condition in the I-2 District heard at this
time.” The letter recounted the history of the application and stated that in view of the recent
Court of Appeals decision, “the I-3 Zone no longer exists.” The application was not put
before the BZA as a result of this letter, and the record does not reflect any other response
to the letter.

       Meanwhile, the City proceeded with a proposed zoning amendment that would

                                              -8-
essentially re-adopt Ordinance 742, and that amendment was passed in January of 2010. On
May 4, 2010, after the Tennessee Supreme Court denied the City permission to appeal this
court’s decision, the Wrights’ attorney wrote to the Codes Director and requested that their
long-pending 2004 application for a conditional use in an I-2 zone be placed on the agenda
for the next meeting of the Board of Zoning Appeals. The letter stated that in 2004 the
Wrights submitted an application to allow a rock quarry on their property as permitted by
special exception within an I-2 zone. The letter further stated, “As you are probably aware,
that particular application was never formally acted on,” and recounted the history of the
attempt to get the application heard, including the litigation history and this court’s holding.
The letter continued:

       I understand the City of Shelbyville has since attempted to enact an I-3 zone.
       Nonetheless, my client has had a pending application for a special exception
       in an I-2 zone since 2004. Now that the litigation has been resolved, I would
       kindly ask that you place my client’s application on the Board of Zoning
       Appeals’ agenda for its May meeting.

      The letter also stated that the Wrights’ engineering firm would be submitting an
updated application. Shortly thereafter, an updated application was provided.

        The city’s response came in the form of a letter signed by the Codes Director and the
City Attorney. It stated that the Wrights’ 2004 application would not be placed on the agenda
“as it is the City’s position that the request is subject to current zoning law, which requires
rock quarries to be in an I-3 zoning.” The letter set out two reasons for that position: (1) the
Wrights’ 2004 application was not still pending, and (2) the current application was not
identical to the 2004 application. The Wrights appealed the decision by the administrator,
and that appeal was brought before the BZA at its meeting.

        At the meeting, the Codes Director explained his decision not to place the application
on the BZA’s agenda, including his reliance on the city’s attorney’s advice that the issue of
whether the Wrights could proceed under the prior zoning law had been decided by the trial
court earlier and that ruling was still in effect.4 Since the property was not zoned for a
quarry, it was not eligible for BZA consideration for conditional use approval. He presented
the letter explaining the denial to the Wrights. Counsel for the Wrights presented a written
statement of their position and also responded to the reasons given by the City. The BZA
voted to affirm the Codes Director’s denial of consideration.

       The BZA’s position is not that the Wrights’ 2004 application must be considered

       4
           This is the same position as the City’s res judicata argument discussed earlier.

                                                      -9-
under the zoning change adopted in January of 2010. Instead, it is the position of the BZA
that the 2004 application was no longer pending and/or was replaced by a new application
in 2010 that differed in a significant way from the 2004 application.

        The BZA’s decision not to argue that the 2004 application, if still pending and
effective, must be considered under zoning effected by a 2010 amendment is consistent with
established legal principles. It is the general rule in Tennessee that a properly filed
application must be considered under the zoning ordinance in effect at the time an application
is filed, and it is not subject to later amendments to that ordinance.5 See, Harding Academy
v. Metro Gov’t of Nashville and Davidson County, 222 S.W.3d 359, 363 (Tenn 2007).

       As the Wrights point out, courts in several other jurisdictions faced with similar
questions have likewise concluded that retroactive application of a zoning ordinance is
improper and unfair to applicants. The Idaho Supreme Court explained that “to permit
retroactive application of an ordinance would allow a zoning authority to change or enact a
zoning law merely to defeat an application, which would result in giving immediate effect
to a future or proposed zoning ordinance before that ordinance was properly enacted.”
Payette River Property Owners Association v. Board of Commissioners, 976 P.2d 477,
48–82 (Idaho 1999). See, also, Gipson v. City of Oberlin, 167 N.E. 651, 654 (Ohio 1960);
Colonial Park for Mobile Homes, Inc., New Borough Zoning Hearing Board, 290 A.2d 719,
723 (Pa. 1972).

        C. The 2004 Application

        The BZA contends that the Wrights withdrew their 2004 application for a conditional
permit and, thus, that they are not entitled to the benefit of having the updated application
that they submitted in 2010 considered under the I-2 zoning in place at the time of the
submission of their original application. The proof shows, however, that in 2004 the
Plaintiffs simply asked that their 2004 application be removed from the agenda of a specific
meeting and requested that the application remain pending. The trial court specifically found
that the application was never withdrawn.


        5
         Tennessee recognizes an exception to the general rule in the “pending ordinance doctrine,” which
provides that “a building permit need not be issued if pending at the time of application is an amendment to
a zoning ordinance that would prohibit the use of land for which the permit is sought.” Harding Academy,
222 S.W.3d at 364 (citing 101A C.J.S. Zoning & Land Planning § 262 (2005)); State ex rel. SCA Chemical
Waste Services, Inc. v. Konigsberg, 636 S.W.2d at 437. But the City offered no proof that an amendment to
the zoning ordinance was even being considered when Plaintiffs filed their initial application. It was only
after Plaintiffs submitted their application that the City took the first steps towards the enactment of
Ordinance 742.


                                                   -10-
        The BZA also argues that there is no legal basis for allowing an applicant for a
conditional use permit to indefinitely postpone action on an application. It complains that
too many years had passed since Plaintiffs’ 2004 application for that application to remain
viable. The BZA does not, however, cite any provision in its Zoning Ordinance that places
a time limit on applications. It never notified the Wrights of any time limit for action on the
application. Further, the delay in this case was not caused by dilatory tactics on the part of
Plaintiffs, but rather by a course of judicial proceedings that resulted in the striking of the
attempted amendment change.

       The Wrights tried numerous times, unsuccessfully, to have their application for a
conditional use permit considered on its merits. Despite several attempts over a period of
eight years, all blocked by the City in one way or another, the Wrights have not had their
application considered under the appropriate zoning. In effect, they have not yet had their
bite of the apple. Under the circumstances of this case, the BZA cannot claim that the
Wrights have taken too long to get their application considered.

       Another argument presented by the BZA is that the updated application the Wrights
submitted in 2010 somehow voided the original application. But, the Zoning Ordinance does
not prohibit an applicant from updating an application. The Wrights assert that it is a matter
of routine to modify an application on the basis of additional information gathered between
the original filing date and the hearing date, so long as the basic character of the proposed
use does not change.

        The BZA points to the fact that nine acres that were added to the updated application
and suggests that their inclusion totally changes the character of the original application.
Plaintiffs assert, however that they acquired the new property after they submitted their
original application, that the additional acreage carries the same zoning classification as the
rest of the property, and that they did not propose using the additional acreage to expand the
footprint of the quarrying operation, but only to provide road frontage for additional potential
access to the site. We conclude that the addition of the property as described is an update to
the pending application and does not somehow invalidate the 2004 application.

                                 V. T HE P ROPER R EMEDY

        The parties have urged different remedies on us in the event that we reverse the trial
court. The Wrights would like us to simply order the Board of Zoning Appeals to issue the
permit they requested. They note that the minutes of the 2004 Planning Commission meeting
at which their application for a permit under I-3 zoning was rejected show that the City
Engineer stated that they “met all the conditions which were required of them.” They argue
that if their application met all the I-3 conditions, then it surely met the less stringent I-2

                                              -11-
conditions.

       For its part, the BZA contends that the most appropriate remedy is to remand the
Wrights’ application to the Board of Zoning Appeals for further proceedings. It reasons that
the determination of whether an application for a conditional use or special exception permit
meets the relevant conditions is within the purview of the BZA, not the Planning
Commission or the City Engineer. Further, this court has observed that,

        Because courts should avoid requiring local zoning authorities to take a
        particular action except in the most extraordinary circumstances, the most
        common judicial remedy in zoning cases is to remand the case to the zoning
        agency with instructions appropriate to the circumstances of the case . . . .
        Rather than shouldering the local agency’s responsibilities, the courts should
        insist that the agency carry out its task in an appropriate manner . . . . The goal
        of a remand should be to place the parties and the agency in the position they
        would have been in had the agency not acted improperly.

Hoover v. Metropolitan Board of Zoning, 955 S.W.2d 52, 55 (Tenn. Ct. App. 1997) (internal
citations omitted).

       The Board of Zoning Appeals has not yet determined for itself whether the Wrights’
original application or its updated application meet the requirements for a conditional use
permit. We accordingly remand this case to the BZA for consideration of the Wrights’ 2004
application, as updated, in light of this opinion and the nature for a request for conditional
use or special exception.

       A special exception,6 unlike a variance, is not an exception to a zoning ordinance.
Instead, it is a use that is expressly permitted.

        “Special exception” is clearly a misnomer. Since the use is specifically
        provided for in the ordinance as one to be permitted where the conditions
        legislatively prescribed are found, no exception to the ordinance is being made.
        The use permitted by approval of the board of adjustment, the legislative body,
        the planning board, or the “zoning administrator,” as the case may be,


        6
        “The term ‘special exception’ is a carryover from the early days of zoning; the term ‘special permit’
goes even farther back, being found in regulatory ordinances prior to zoning. Because the early zoning
ordinances adopted these terms, the courts ruling upon such provisions necessarily used the language of the
ordinances before them which perpetuated the use of these terms. 3 Rathkopf’s T HE L AW OF Z ONING AND
P LANNING § 61:9 (4th ed.).

                                                    -12-
       contingent on meeting the standards and conditions set forth in the
       ordinance, is more correctly termed a “conditional use.” This is, in fact, the
       term which is used in some statutes.

3 Rathkopf’s T HE L AW OF Z ONING AND P LANNING § 61:9 (4th ed.) (emphasis added).

        A conditional use or special exception allows a landowner to put his property to a use
which the ordinance expressly permits. It requires only a finding that the conditions stated
in the ordinance have been met. Id. at § 61:11. “The inclusion of the particular use in the
ordinance as one that is permitted under certain conditions, is equivalent to a legislative
finding that the prescribed use is one which is in harmony with the other uses permitted in
the district. Id.

        Where the legislative body has authorized a use by special exception or conditional
use, courts will presume that such use serves the public interest when located in the district
where it is authorized. 2 Am. Law, Zoning § 14.12 (5th ed.). Classification of a use as one
that is permitted as a special exception constitutes a legislative finding that the use accords
with the general zoning plan, is in harmony with, or will not adversely affect, the surrounding
neighborhood, and meets a public need. Robert Lee Realty Co. v. Village of Spring Valley,
61 N.Y.2d 892, 474 N.Y.S.2d 475, 462 N.E.2d 1193 (1984); Dan Gernatt Gravel Products,
Inc. v. Town of Collins, 105 A.D.2d 1057, 482 N.Y.S.2d 587 (4th Dep’t 1984); Kristensen
v. City of Eugene Planning Commission, 24 Or. App. 131, 544 P.2d 591 (1976); Brentwood
Borough v. Cooper, 60 Pa. Commw. 462, 431 A.2d 1177 (1981).

       Tennessee law follows these generally applicable principles. In fact, state statutes
recognize the difference between a variance and a use permitted under certain conditions.
Tennessee Code Annotated § 13-7-207 sets out the powers of boards of zoning appeals.
Subsection (3) authorizes such boards to grant a variance from strict application of zoning
regulations where exceptional difficulties to, or undue hardship upon, the property owner
would otherwise result. On the other hand, subsection (2) authorizes a board of zoning
appeals to “[h]ear and decide, in accordance with the provisions of any such ordinance,
requests for special exceptions.” Tenn. Code Ann. § 13-7-207(2).

                                   VI. A TTORNEY F EES

       The Wrights asked the trial court to award them their attorney fees under the “Equal
Access to Justice Act” of Tenn. Code Ann. § 29-37-101 et seq. That statute allows courts
to award actual attorney fees of up to $10,000 to a “small business” (as that term is defined
in the Act), if it is the prevailing party in an action against a state agency or a local
government and if the small business has demonstrated that the actions of the governmental

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entity “were arbitrary or capricious or were brought in bad faith for the purpose of
harassment.” Tenn. Code Ann. § 29-37-104(b)(2). See BMC Enterprises Inc. v. City of Mt.
Juliet, 273 S.W.3d at 628 (awarding such fees for the arbitrary and capricious actions of a
municipal Board of Zoning Appeals).




       The Wrights did not prevail at trial and the trial court did not award them the
requested fees. But since we have reversed the trial court, and we have found that the action
of the BZA was in fact arbitrary, as did the trial court, the Wrights may be eligible for
attorney fees. We therefore remand this case to the trial court to determine whether the
Wrights’ enterprises are entitled to an award of fees under the statute.

                                    VII. C ONCLUSION

        The order of the trial court is reversed. We remand this case to the Chancery Court
of Bedford County for further proceedings as to attorney fees, and we remand to the
Shelbyville Board of Zoning Appeals for consideration of the Wrights’ application at the
earliest possible date. Tax the costs on appeal to the appellees.




                                                         ____________________________
                                                         PATRICIA J. COTTRELL, JUDGE




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