                   IN THE COURT OF APPEALS OF TENNESSEE
                       WESTERN SECTION AT KNOXVILLE
                                                               FILED
GREENBACK CRUSHED STONE,               )                     February 26, 1998
INC.,                                  )
                                       )                     Cecil Crowson, Jr.
             Plaintiff/Appellant,      ) Loudon Circuit No. 5832
                                                             Appellate C ourt Clerk
                                       )
VS.                                    ) Appeal No. 03A01-9706-CV-00207
                                       )
LOUDON COUNTY COMMISSION,              )
                                       )
             Defendant/Appellee.       )


            APPEAL FROM THE CIRCUIT COURT OF LOUDON COUNTY
                         AT LOUDON, TENNESSEE
              THE HONORABLE RUSSELL E. SIMMONS, JR., JUDGE




DAVID T. BLACK
KIZER AND BLACK
Maryville, Tennessee
Attorney for Appellant



DEAN B. FARMER
HODGES, DOUGHTY & CARSON
Knoxville, Tennessee
Attorney for Appellee




AFFIRMED




                                                           ALAN E. HIGHERS, J.



CONCUR:

W. FRANK CRAWFORD, P.J., W.S.

WILLIAM H. WILLIAMS, Sr. J.
     Plaintiff Greenback Crushed Stone, Inc., appeals the judgment of the trial court
upholding the validity of an amendment to the Loudon County zoning laws enacted by

Defendant/Appellee Loudon County Commission. We affirm.



        Greenback owns and operates a rock quarry on Big Hill Road in Loudon County.

The area of Loudon County in which Greenback’s rock quarry is located is zoned A-2,

defined by Loudon County’s zoning laws as a Rural Residential District. In districts zoned

A-2, the subsurface extraction of natural mineral resources, such as Greenback’s rock

quarry, is permitted as a special exception. Loudon County’s zoning laws also permit

“accessory uses which are customarily incidental to the permitted principal uses” in A-2

districts.



        In June 1996, Greenback submitted a request for a special exception to Loudon

County’s zoning laws in which it sought permission to operate an asphalt plant as an

accessory use to its rock quarry. In April 1995, Loudon County’s Board of Zoning Appeals

had denied a similar request submitted by Greenback. This time, in response to

Greenback’s request, the Loudon County Regional Planning Commission recommended

to the County Commission that it enact legislation specifying that concrete and asphalt

plants are not permitted accessory uses in districts zoned A-1 or A-2. Consequently, the

County Commission published a notice of a public hearing to discuss an amendment which

provided that “[c]oncrete and asphalt plants/facilities are not considered an accessory use“

to the “[s]ubsurface extraction of natural mineral resources.”



        In August 1996, the County Commission held a public hearing in which area

residents participated, as well as representatives of Greenback and the Office of Planning

and Community Development. At the hearing’s conclusion, the County Commission voted

to pass a resolution adopting the amendment by a 6-3 vote.



        Greenback subsequently brought this action for a declaratory judgment in which it

challenged the validity of the zoning amendment enacted by the County Commission.

After filing its answer, the County Commission moved for summary judgment contending,



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inter alia, that its passage of the zoning amendment was a legislative matter over which

the trial court had limited review and that, as a matter of law, the Commission’s action

withstood such scrutiny. The trial court agreed and entered a judgment upholding the

validity of the challenged zoning amendment. This appeal followed.



       This court recently summarized the standard of review applicable in cases where

courts are asked to rule on the validity of a zoning ordinance or amendment. In Family

Golf of Nashville, Inc. v. Metropolitan Government of Nashville and Davidson County, No.

01A01-9612-CH-00557, 1997 WL 625281 (Tenn. App. Oct. 10,1997), a case involving the

validity of an amendment to the defendant’s zoning ordinance adopted by its Metropolitan

Council, we stated:

                             Local legislative bodies have broad discretion in
              enacting or amending zoning ordinances. When the validity of
              a zoning ordinance is fairly debatable, the courts may not
              substitute their judgment for that of the local legislative body.
              A zoning ordinance should be found valid unless it is “clearly
              arbitrary, capricious, or unreasonable, having no substantial
              relationship to the public health, safety, or welfare, or plainly
              contrary to the zoning laws.” McCallen v. City of Memphis, 786
              S.W.2d 633, 640 (Tenn. 1990). Because the “rational basis”
              test is the most deferential form of judicial scrutiny, a reviewing
              court should uphold a challenged zoning ordinance if there is
              any possible reason that can be conceived to justify it. Fallin v.
              Knox County Bd. of Comm’rs, 656 S.W.2d 338, 343-44 (Tenn.
              1983).

Family Golf, 1997 WL 625281, at *5.



       At the August 1996 public hearing on the zoning amendment, several residents who

lived near the rock quarry expressed their concern over permitting an industrial use like an

asphalt plant in a rural area characterized primarily by residential and agricultural uses.

Residents were concerned that the operation of an asphalt plant would result in an

increase in large truck traffic through residential streets, dust emissions from the plant

itself, and water runoff containing plant wastes. Jim Beeler, a salesman for a manufacturer

of furnaces used in asphalt plants, spoke on behalf of Greenback. Beeler stated that dust

emissions from asphalt plants were now kept to a minimum by modern technologies. As

for the waste water runoff, Beeler explained that asphalt trucks would be cleaned at the

asphalt plant by a system which separated the oils from the water. The waste water then


                                              3
would go into nearby concrete settling ponds. Although he indicated that the concrete

settling ponds would be designed for flood situations, Beeler acknowledged that accidents

were possible. Beeler also did not dispute the residents’ claims that the asphalt plant

would increase the truck traffic through the area. The Director of the Office of Planning

and Community Development indicated that, if the zoning amendment was passed, asphalt

plants still would be permitted uses in M-1 industrial districts.



        Given the arguments and evidence before the Loudon County Commission, we

conclude that the issue of whether the zoning amendment was in the community’s best

interest was “fairly debatable.” The County Commission well may have concluded that an

asphalt plant was an industrial use which was not compatible with the residential and

agricultural uses of the A-2 Rural Residential District. Inasmuch as a rational basis could

have existed for the approval of the amendment, we hold that the Commission’s action was

valid. See Carter v. Adams, 928 S.W.2d 39, 41 (Tenn. App. 1996); see also Family Golf,

1997 WL 625281, at *6.



        In opposing the Commission’s motion for summary judgment, Greenback submitted

the affidavits of industry consultants and one of Greenback’s owners, who attested to the

cleanliness and safety of modern asphalt plants, as well as the physical and financial

impracticality of locating an asphalt plant in the areas currently zoned M-1.1 On appeal,

Greenback contends that these affidavits demonstrated the existence of disputed issues

of fact which precluded the grant of summary judgment. In our view, however, these

affidavits further illustrate the “fairly debatable” nature of the issue before the County

Commission and, thus, we decline to substitute our judgment for that of the Commission.



        The judgment of the trial court is hereby affirmed. Costs on appeal are taxed to

Greenback, for which execution may issue if necessary.


        1
         Contrary to Gree nback ’s conten tion, the zonin g am endm ent at issu e in this cas e did not tota lly
exclude aspha lt plants from Loudo n Cou nty. Cf. Robertson County v. Browning-Ferris Indus., 799 S.W.2d
662, 666 (Tenn. App. 1990) (invalidating ordinance insofar as it totally excluded sanitary landfills from coun ty).
W e also reject Greenback’s contention that the Cou nty Co mm issio n’s enactment of the zoning amendment
impaired a vested right of Gr eenba ck. See State ex rel, SCA Chemical Waste Servs. v. Konigsberg, 636
S.W .2d 430, 4 37 (Te nn. 1982 ); Schneider v. Lazarov, 390 S.W .2d 197, 200-01 (Tenn . 1965).

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                           HIGHERS, J.



CONCUR:




CRAWFORD, P.J., W.S.




WILLIAMS, Sr. J.




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