                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                 January 23, 2012 Session

        WASTE CONNECTIONS OF TENNESSEE, INC. v. THE
    METROPOLITAN GOVERNMENT OF NASHVILLE & DAVIDSON
                   COUNTY, TENNESSEE

                 Appeal from the Chancery Court for Davidson County
                    No. 121040-II   Carol L. McCoy, Chancellor


                    No. M2012-02290-COA-R3-CV - March 27, 2013


The dispositive issue in this land use appeal highlights important legal distinctions between
when a local governmental body is functioning in a legislative capacity or an administrative
capacity, and what can go wrong when the governmental body fails to conduct its meetings
pursuant to the proper legal standards. When the local governmental body is enacting laws,
such as zoning ordinances, it is functioning in a legislative capacity; however, when the
governmental body is implementing existing zoning ordinances it is functioning as an
administrative body or board. In this case the Council of the Metropolitan Government of
Nashville and Davidson County, Tennessee (“Metro Council”) was functioning as an
administrative board, not in a legislative capacity, when it disapproved an application for the
location of a waste transfer station located on property zoned “industrial restrictive.” When
the application was disapproved, the applicant filed a petition for common law writ of
certiorari seeking to set aside the disapproval on the ground that it was illegal, arbitrary,
fraudulent, and/or capricious because the Metro Council failed to comply with the
requirements of Metropolitan Code § 17.40.280 by making a decision for the sole reason that
local residents opposed the station, and not because the proposed use was “consistent or not
consistent” with the requirements of Metro Code § 17.16. The trial court dismissed the
petition and this appeal followed. Under the common law writ of certiorari standard, our
review of the Metro Council’s administrative decision is limited to determining whether the
decision is clearly illegal, arbitrary, or capricious. An administrative decision that is not
supported by substantial and material evidence is, by definition, arbitrary and capricious. This
record is devoid of any substantial or material evidence to support the decision to disapprove
the location for a waste transfer station; accordingly, the decision was arbitrary. We,
therefore, reverse the trial court’s dismissal of the common law petition for writ of certiorari
and remand with instructions to set aside the Metro Council’s disapproval of the location and
to order that the application for a special exception be submitted to the Board of Zoning
Appeals for its consideration pursuant to Metro Code § 17.40.280.
 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed

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

Nancy Vincent, Maia Tiffany Woodhouse, and V. Austin Shaver, Nashville, Tennessee, for
the appellant, Waste Connections of Tennessee, Inc.

Lora Barkenbus Fox and Emily Herring Lamb, Nashville, Tennessee, for the appellee,
Metropolitan Government of Nashville and Davidson County, Tennessee.

                                         OPINION

        This action arises from the disapproval by the Metropolitan Council of Nashville and
Davidson County of an application for a special exception permit by Waste Connections of
Tennessee, Inc., to locate a waste transfer station on property zoned “industrial restrictive.”
Waste Connections filed its application for a special exception permit on May 9, 2012, with
the Metro Board of Zoning Appeals seeking to locate a waste transfer station at 1000 Apex
Street, Nashville, Tennessee, located in Metropolitan Council District V. In its application,
Waste Connections admitted that it did not meet three requirements found in Metropolitan
Code of Nashville & Davidson County (“Metro Code”) § 17.16.210.C., which states the
requirements for waste transfer stations. Specifically, the location did not meet the street
standard requirement that driveway access not be on a street bounded by a residential zoning
district, the street standard requirement that traffic generated to and from the site use only
streets where the existing level of service was a “D” and forecasted to remain at a “D,” and
the setback requirement that the waste transfer station be located a minimum of 150 feet
away from any residential zoning district boundary. Waste Connections requested a variance
as to each of these three requirements.

      On May 10, 2012, Metro Council was notified of the application by the Zoning
Administrator. A Resolution was introduced by Councilmember Scott Davis on June 15,
2012, to approve or disapprove the location of the proposed waste transfer station. The
Resolution was considered by both the Public Works Committee and the Planning and
Zoning Committee of the Council. A Metro Council meeting was held on July 3, 2012, at
which time the Metro Council voted to disapprove the location.

        Waste Connections then filed a petition for common law writ of certiorari seeking to
set aside the disapproval of the Resolution by Metro Council on the ground that it was illegal,
arbitrary, fraudulent, and/or capricious because the Metro Council failed to comply with the

                                              -2-
requirements of Metro Code § 17.40.280 by making a decision for the sole reason that local
residents opposed the station, and not because the proposed use was “consistent or not
consistent” with the requirements of Metro Code § 17.16. On October 9, 2012, the trial court
entered a Memorandum and Order dismissing the petition finding that Waste Connections’s
Application for a specific exemption constituted sufficient evidence in the record to support
Metro Council’s decision. The trial court also found that the Application was not for a special
exception, but instead was for a variance specified in the zoning regulations. This appeal
followed.

                                               A NALYSIS

        Waste Connections contends the trial court erred in finding that Metro Council’s
disapproval of the location of a waste transfer station located at 1000 Apex Street was
supported by substantial and material evidence. The basis of Waste Connections’s argument
is that Metro Council was functioning as an administrative board and its sole reason for
disapproval of the location was the opposition by local residents, which Waste Connections
contends is not an appropriate justification for disapproval under Metro Code § 17.40.280.
Waste Connections further asserts that portions of the administrative record provided by
Metro Council should not be considered as it was not presented to Metro Council at the
meeting and, therefore, cannot constitute material evidence to support Metro Council’s
decision. Metro Council argues that there is sufficient evidence in the record to support
Metro Council’s disapproval of Waste Connections’s Application.

                I. A DMINISTRATIVE D ETERMINATIONS BY THE M ETRO C OUNCIL

        When the chief legislative body of a county acts under its police powers either to
adopt or amend a zoning ordinance, it acts in a legislative capacity. Fallin v. Knox County
Bd. of Comm’rs, 656 S.W.2d 338, 342 (Tenn. 1983). However, as this court has noted in
numerous cases, when the chief legislative body of a county, such as Metro Council, reserves
for itself administrative determinations that could have been assigned to the board of zoning
appeals, the legislative body becomes an administrative board for purposes of the
administrative determinations it reserved.1 McCallen v. City of Memphis, 786 S.W.2d 633,

       1
           As the McCallen court noted:

       Municipal legislative bodies may reserve to themselves, where they do so by an ordinance
       containing a rule or standard to govern them, the power to grant or deny licenses or permits.
       This may be done in zoning matters, where it is not contrary to a state zoning or enabling
       act, and where the zoning ordinance likewise contains sufficient standards to govern the
       municipal council. Thus, a zoning ordinance vesting in the municipal council the power to
                                                                                               (continued...)

                                                    -3-
638-40 (Tenn. 1990); see also Fallin, 656 S.W.2d at 342; Cost Enter. v. City of Lebanon, No.
M2008-006180-COA-R3-CV, 2009 WL 856643, at *4-5 (Tenn. Ct. App. Mar. 31, 2009);
Wadlyn Corp. v. City of Knoxville, 296 S.W.3d 536, 542-43 (Tenn. Ct. App. 2008).

        The test for determining whether the governmental action is legislative or
administrative is whether it “makes new law or executes one already in existence.” State ex
rel Moore & Assoc. v. West, 246 S.W.3d 569, 575 (Tenn. Ct. App. 2005). As this court stated
in Mullins v. City of Knoxville, 665 S.W.2d 393 (Tenn. Ct. App. 1983): “[The city council]
exercised [a legislative] function in 1974 when it passed the [zoning] ordinance . . .”;
however, referring to the city council’s review of a planned unit development, the court
stated: “[i]t is now exercising the administrative function of determining whether or not the
plaintiff’s planned development meets the standards of the ordinance.” Id. at 395-96.

                            II. A PPLICATIONS FOR S PECIAL E XCEPTIONS

       Pursuant to the zoning laws of this state, the Metropolitan Government has the
authority to zone areas of Davidson County and to make special exceptions to that zoning
when it is appropriate to do so under the zoning ordinance.2 Binkley v. Metro. Gov’t of


        1
         (...continued)
        determine whether a building permit should be granted ... is regarded as administrative,
        rather than legislative in character.

McCallen, 786 S.W.2d at 640 (quoting 8 A E. McQuillin, The Law of Municipal Corporations, § 25.217, at
160-61 (3rd ed. 1986).
        2
        See Barlow Burke Jr., Ann M. Burkhart, Richard H. Helmholz, Fundamentals of Property Law
(Matthew Bender 3rd ed. 2010), for an excellent discussion of this and related zoning subjects. Chapter 7:
Takings and Land Use Controls, Part II, Section (A)(5) explains:

        The special exception is the third type of action available to change the permitted uses of
        land. The special exception differs in an important respect from the zoning amendment and
        the variance; the zoning ordinance specifies the permissible uses for which a special
        exception may be granted. For example, in a single-family residential zone, the zoning
        ordinance may specify that single-family homes and accessory uses, such as a detached
        garage, are permitted as a matter of right so long as they comply with other restrictions
        concerning required setbacks and similar matters. The ordinance then may specify uses that
        are permitted in that district if a special exception is granted. In a single-family residential
        zone, for example, special exception uses might include churches, community centers, and
        schools.

        The types of uses that require a special exception are generally compatible with the uses
                                                                                            (continued...)

                                                      -4-
Nashville, No. M2010-02477-COA-R3-CV, 2011 WL 2174913, at *3 (Tenn. Ct. App. June
1, 2011). Acting pursuant to Tennessee Code Annotated § 13-7-206(a), the Metro Council
created the Board of Zoning Appeals (“BZA”) to handle this function, with the condition that
for certain uses of land requiring a special exception, Metro Council retained the authority
to approve or disapprove the location as a prerequisite to board action. Id. (citing Metro Code
§ 17.40.280). One such exception is the location of a waste transfer facility. Pursuant to the
Metropolitan Code, as an additional level of administrative review, Metro Council must
either approve or fail to disapprove, within 60 days, the location of a proposed waste transfer
facility in order for the BZA to consider an application for a special exception.3 Id. If Metro
Council disapproves the location in a timely manner, the application for a special exception
never goes to the BZA. See Metro Code § 17.40.280.

       It is undisputed that Metro Council was not making “new law” when it voted on the
Resolution to disapprove Waste Connections’s location for a waste transfer station; instead,
the Council was executing a zoning ordinance already in existence. Therefore, the Metro
Council’s decision to disapprove the location of Waste Connections’s waste transfer station
constituted an administrative determination. See Moore, 246 S.W.3d at 575 (citing Weaver
v. Knox Cnty. Bd. of Zoning Appeals, 122 S.W.3d 781, 784 (784)).

                                      III. S TANDARD OF R EVIEW

        The standard of review of the Metro Council’s administrative determinations under
the common law writ of certiorari is limited to whether it exceeded its jurisdiction or acted
illegally, arbitrarily, or fraudulently. Binkley, 2011 WL 2174913, at *1 (citing McCallen, 786


       2
        (...continued)
       permitted as a matter of right, but they may not be appropriate at every location in a district.
       For example, they may serve large numbers of people, such as a church or school, and
       therefore create potential traffic and noise problems. Special exception uses also may be
       generally desirable uses that have noxious qualities, such as a gas station. Therefore, rather
       than permit any landowner in a zoning district to use his property for such a use, the special
       exception review process permits an evaluation of the proposed location and method of
       operation of the use before it legally can be introduced into the neighborhood.
       3
           Metro Code § 17.40.280 further states:

       If the metropolitan council does not approve or disapprove the specific location, upon
       finding that the proposed use is consistent or not consistent with the conditions specified in
       Chapter 17.16, Article III, within sixty days of the date of notification by the zoning
       administrator to the council and the district councilmember that such an application has been
       filed, council approval shall be waived and the board of zoning appeals may proceed to
       consider the application.

                                                     -5-
S.W.2d at 638). Thus, it is the role of this court to examine whether Metro Council’s decision
to disapprove the resolution is clearly illegal, arbitrary, or capricious. A “decision that is not
supported by substantial and material evidence is, by definition, arbitrary and capricious.”
Outdoor Resorts at Gatlinburg, Inc. v. Utility Mgmt. Review Bd., No. E2011-01449-COA-
R3-CV, 2012 WL 1267858, at *5 (Tenn. Ct. App. Apr. 13, 2012) (citing Jackson Mobilphone
Co. v. Tenn. Pub. Serv. Comm’n, 876 S.W.2d 106, 110 (Tenn. Ct. App. 1993)).

              IV. C RITERIA TO BE CONSIDERED UNDER M ETRO C ODE § 17.16

       As we discussed in Binkley, Metro Council’s duty under Metro Code § 17.40.280 is
to approve or disapprove the “specific location of a . . . waste transfer facility” by
determining whether the facility “is consistent or not consistent with the conditions specified
in Chapter 17.16, Article III.” Binkley, 2011 WL 2174913 at *4. Thus Metro Council may
consider “any criteria within Chapter 17.16, Article III of the Metro Code that may apply to
the location of a waste transfer facility.” Id. In Binkley, we held that this language required
the Council to consider both the specific criteria for waste transfer facilities found in Metro
Code § 17.16.210(C) and the general criteria contained in § 17.16.150(A)-(J). Binkley, 2011
WL 2174913, at *4.

       The specific criteria applicable to waste transfer facilities under § 17.16.210(C) are:

       1. Lot Size. The minimum site area shall be ten acres.

       2. Street Standard. Driveway access can be from any local street, provided that
       street is not bounded by any residential zoning district from the driveway
       access point to the street’s intersection with a collector street or a street
       designated on the major street plan. A traffic impact study shall demonstrate
       that traffic generated to/from the site will only use streets where the existing
       level of service (LOS) is “D,” and it is forecasted to remain at a LOS D or
       better with the proposed waste transfer traffic.

       3. Setback. All buildings, structures, storage containers and areas, and vehicle
       loading/unloading areas shall be located a minimum of one hundred fifty feet
       away from any residential use, screening in the form of landscape buffer yard
       Standard D shall be applied. In addition, the entire facility shall be enclosed
       by a chain-link-type fence at least eight feet in height. The fence shall be
       patrolled each day to remove all windblown debris captured by the fence.

       4. All loading, unloading, compacting, sorting, processing or storage shall take
       place within a completely enclosed building.

                                               -6-
       General criteria that may also be considered is set forth at Metro Code §
17.16.150(A)-(J). Two of these general criteria are the effect on other property in the area
and compliance with other regulations. See Metro Code § 17.16.150(B) & (C).

       Subsection (B) of Metro Code § 17.16.150 states:

       Ordinance Compliance. The proposed use shall comply with all applicable
       regulations, including any specific standards for the proposed use set forth in
       this title, unless circumstances qualify the special exception for a variance in
       accordance with Chapter 17.40, Article VIII. Any accessory use to a special
       exception must receive express authorization from the board of zoning
       appeals.

       Subsection (C) of Metro Code § 17.16.150 states:

       Integrity of Adjacent Areas. A special exception use permit shall be granted
       provided that the board finds that the use is so designed, located and proposed
       to be operated that the public health, safety and welfare will be protected. The
       board shall determine from its review that adequate public facilities are
       available to accommodate the proposed use, and that the approval of the permit
       will not adversely affect other property in the area to the extent that it will
       impair the reasonable long-term use of those properties. The board may request
       a report from the metropolitan planning commission regarding long-range
       plans for land use development.

         V. T HE TRANSCRIPT OF THE J ULY 3, 2012 MEETING OF M ETRO C OUNCIL

        Our review of the action of Metro Council in disapproving the Resolution is “from
the transcription of the hearing before council.” McCallen, 786 S.W.2d at 640-41. The
transcript from the July 3, 2012 meeting of Metro Council demonstrates that there was no
discussion of any substantive issue or criteria, only very brief comments. The transcript
demonstrates that the Vice-Mayor announced the Resolution to approve the waste transfer
facility and then asked for committee reports. Councilmember Hunt responded: “Public
Works voted to disapprove, 10 for; zero against.” Councilmember Claiborne reported:
“Planning, Zoning and Historic Committee voted to disapprove; 12 for disapproval; 0
against.” There was no statement or explanation as to the reasons for the committees’
disapproval. Next, the sponsor of the Resolution, Councilmember Davis moved for
disapproval and gave the following brief explanation for his vote:




                                             -7-
       This process been a lot – a lot of sweat, a lot of tears, and for some of the
       constituents, a lot of blood. And I say that because at the end of the day, we’re
       all residents of Nashville, the greatest city in the United States, as far as I’m
       concerned. And right now I just wanted everyone to know that I’m moving for
       disapproval after several committee meet – community meetings and several
       other meetings in the district. It’s overwhelmingly clear that the district does
       not want this. And I’m going to support the people in my district by asking the
       whole body, please vote for disapproval of this facility. Thank you. And I
       move for disapproval with a machine vote.

        Following Councilmember Davis’s statements, Councilmember Maynard spoke
briefly about his reasons for supporting the approval of the waste transfer facility including
his hope that transferring the currently abandoned property into a business would decrease
the use of the property for illegal activities. Following Councilmember Maynard’s
statements, another councilmember moved for a vote and the Resolution was disapproved
by Metro Council by a vote of 37 to 1.

       As noted above, general criteria for consideration are set forth in Metro Code §
17.16.150(A)-(J) include, inter alia, the effect on other property in the adjacent area and
compliance with other ordinances and regulations. See Metro Code § 17.16.150(B) & (C).
The record before us reveals that none of these factors or criteria were presented to the Metro
Council nor discussed prior to disapproving Waste Connections’s proposed location.
Furthermore, specific criteria to be considered pursuant to § 17.16.210(C) includes, lot size,
street standards, setback from the street and adjoining property, and that all loading,
unloading, compacting, sorting, processing or storage shall take place within a completely
enclosed building. Again, like the general factors and criteria that were to be considered but
were not, the record reveals that none of the specific criteria were presented to nor discussed
by the Council prior to disapproving Waste Connections’s location.

       Not only were the factors and criteria not discussed, no materials or evidence were
introduced into the record prior to the vote on the Resolution. In fact, Waste Connections’s
application for a special exception was not even introduced.

       Waste Connections contends that the transcript as described above evidences that the
sole justification for the Metro Council’s vote was the opposition by district residents.
Conversely, the Metropolitan Government points to the statements by the chairs of the Public
Works committee and the Planning and Zoning committee acknowledging that both their
committees voted unanimously to disapprove the request for the waste transfer facility.
However, neither of the committee chairs articulated any factors, criteria, or reasons for



                                              -8-
disapproval.4 The Metropolitan Government further urges this court to look to the entirety
of the administrative record, which, it contends, provides material evidence that supports
disapproval of the Resolution. It also points to the Application, which requested variances
for three of the requirements. We, however, find this inadequate for Metro Code §
17.16.150(B) provides that: “[t]he proposed use shall comply with all applicable regulations,
including any specific standards for the proposed use set forth in this title, unless
circumstances qualify the special exception for a variance in accordance with Chapter 17.40,
Article VIII.” (emphasis added). There was no discussion by the Metro Council regarding the
requests for variances, moreover, the record does not support a finding that the Metro
Council even considered the application. Thus, the record does not contain substantial or
material evidence to support the administrative decision to disapprove the location.

        Metro also argues that this action is no different from the case of Binkley, which also
addressed an application for a waste transfer facility, and urges this court to reach the same
result. However, in Binkley, this court found that Metro Council made its decision based
upon two of the general criteria under Metro Code § 17.16.150(A)-(J) in disapproving the
waste transfer facility. Binkley, 2011 WL 2174913, at *4. We specifically noted the
statements of one councilmember concerning the proximity of the proposed waste transfer
facility to a greenway, which the city had invested great sums of money to develop and
maintain and concluded that this fell within the criteria set forth in Metro Code §
17.16.150(C), which addresses the integrity of adjacent areas to the waste transfer facilities
and provides that “the public health, safety and welfare will be protected.” Id. We also noted
statements by a councilmember that the creation of the waste transfer facility would be in
direct opposition to the Davidson County Region Solid Waste Plan, and that this
consideration fell within the provision set forth at Metro Code § 17.16.150(B), which
requires the proposed use to comply with all applicable regulations unless it qualifies for a
variance. Id. Further, we found that these two considerations constituted substantial and
material evidence that supported the Council’s administrative decision. Id. at *5. Thus, we
find this case distinguishable from Binkley because that record contained two well-articulated
reasons for disapproving the location for waste transfer facility under considerations set forth
in the general provisions at Metro Code § 17.16.150.




        4
           A review of the transcript of the Planning, Zoning, and Historical Committee meeting reveals that
the variance requests reflected in the application were a minimal consideration and the most persuasive
consideration was the community objections. Waste Connections objects to the consideration of this arguing
that the transcript is not part of the administrative record because it was not presented to the Metro Council.

                                                     -9-
        Cases we find more similar include Cost Enterprises v. City of Lebanon, No. M2008-
006180-COA-R3-CV, 2009 WL 856643 (Tenn. Ct. App. Mar. 31, 2009), in which Lebanon’s
City Council denied an application by a developer for a planned unit development based
upon flooding and drainage issues. Id. at *5. The developer filed a petition for common law
writ of certiorari contending that the city council’s action was illegal, arbitrary or capricious.
Id. at *4. The trial court reversed the council’s denial of the application finding that the
record was devoid of material evidence to support the council’s decision. Id. at *1. In
examining the record, this court looked to the council’s discussion prior to the vote denying
the PUD. Id. The city argued that material evidence supported the decision because an
independent engineering firm confirmed that water runoff problems existed. Id. at *6. This
court rejected that argument noting that while there was evidence of a current runoff
problem, there was no evidence that the proposed development would make the runoff worse.
Id. The city also pointed to the fact that the developer’s expert could not state the problems
would not become worse when the PUD was developed. Id. Upon examination of the
expert’s testimony during the council meeting, this court found that the testimony by the
expert was that “better” or “worse” were subjective terms and this court found that such
testimony did not constitute material evidence that supported a denial of the application
under the ordinance. Id. Lastly, this court noted that the city council appeared to have held
the developer to an “undefined, undisclosed and unanticipated standard.” Id. at *7. The court
noted that the city council “must apply the PUD standards that it has enacted in its
ordinances.” Id.

       We also find it notable in Cost Enteprises that the City of Lebanon conceded that
“fears of members of the community alone, in the absence of material evidence, will not
support the denial of the application for approval of a PUD.” Id. (citing Sexton v. Anderson
Cnty., 587 S.W.2d 663, 666 (Tenn. Ct. App. 1979)). In Sexton v. Anderson Cnty., this court
addressed the disapproval of a landfill by the Anderson County Board of Zoning Appeals.
587 S.W.2d at 664. In reviewing whether there was material evidence to support the denial,
the court noted and rejected concerns by community members stating:

       Various members of the community expressed beliefs and opinions that the
       presence of the landfill would create noxious odors and result in falling
       property values; they also thought that trucks delivering refuse to the site of the
       fill would cause additional damage to the local roads. These statements were
       offered on the issue of whether the intended use is “potentially dangerous,
       noxious or offensive.” None rises to the dignity of being material evidence on
       the issue. In each instance, the statements amount to an expression of opinion
       on the ultimate issue, unsubstantiated by factual premises. Speculations,
       expression of fears and considerations of an aesthetic or political nature do not
       form a basis to support a decision made by an administrative body charged

                                              -10-
        with adjudicatory responsibility. Harvey v. Rhea County Beer Board, 563
        S.W.2d 790 (Tenn. 1978); Ewin v. Richardson, 399 S.W.2d 318 (Tenn. 1966).

Id. at 665-66.

       In this case, the record reveals that Metro Council made its decision solely upon the
concerns of the residents. We respect the Council’s concerns for the residents who logically
opposed the location of the waste transfer station and empathize with the residents. However,
the Council is required by its own ordinances to make its decisions based upon the factors
and criteria set forth in the Metro Code, in this case the criteria set forth in § 17.16.210 and
§ 17.16.150, and to provide an administrative record5 that contains substantial and material
evidence that supports its decision. This record contains neither. Accordingly, the decision
by Metro Council to disapprove the location of the waste transfer station is not supported by
substantial and material evidence; therefore, by definition, the decision to disapprove the
location was arbitrary and capricious. See Outdoor Resorts at Gatlinburg, Inc., 2012 WL
1267858, at *5 (citing Jackson Mobilphone Co., 876 S.W.2d at 110).

       We, therefore, reverse the trial court’s dismissal of the common law petition for writ
of certiorari and remand with instructions to vacate the Metro Council’s administrative
decision disapproving the location proposed by Waste Connections. Having vacated the
disapproval of the location, we refer back to Metro Code § 17.40.280, which specifies what
happens when the Council approves the location or fails to disapprove the location within
sixty days. Metro Code § 17.40.280 states:

        If the metropolitan council does not approve or disapprove the specific
        location, upon finding that the proposed use is consistent or not consistent with
        the conditions specified in Chapter 17.16, Article III, within sixty days of the
        date of notification by the zoning administrator to the council and the district
        councilmember that such an application has been filed, council approval shall
        be waived and the board of zoning appeals may proceed to consider the
        application.



        5
         In addition to filing with the trial court a verbatim transcript of the Council’s consideration of the
Resolution on July 3, 2012, the Metropolitan Government filed with the trial court numerous documents and
emails that are identified as “the administrative record” of the Council’s consideration of the location for the
waste transfer station. The transcript of the Council’s administrative hearing, however, reveals that with the
exception of emails from residents opposing the location, the other documents contained in the so-called
administrative record were not presented to the Council for its consideration. Because the Metro Council did
not consider the so-called administrative record during the July 3, 2012, administrative proceeding, we may
not either.

                                                     -11-
        As a result of our ruling in this appeal, the Metro Council did not validly disapprove
the specific location within sixty days of the date of notification by the zoning administrator
to the council and the district councilmember that such an application had been filed. As a
result, approval by the Metro Council has been waived and the Board of Zoning Appeals may
proceed to consider the application. See Metro Code § 17.40.280.

       Therefore, the application by Waste Connections for a special exception shall be
submitted to the Board of Zoning Appeals for its consideration pursuant to Metro Code §
17.40.280.

                                      I N C ONCLUSION

      The judgment of the trial court is reversed, and this matter is remanded for further
proceedings consistent with this opinion. Costs of appeal are assessed against the
Metropolitan Government of Nashville & Davidson County.




                                                       ______________________________
                                                       FRANK G. CLEMENT, JR., JUDGE




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