                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                    June 8, 2004 Session

 MELVIN L. BOOKOUT, ET AL. v. KNOX COUNTY BOARD OF ZONING
                       APPEALS, ET AL.

                     Appeal from the Chancery Court for Knox County
                        No. 157012-3 Sharon J. Bell, Chancellor

                                 ________________________

                     No. E2003-02490-COA-R3-CV Filed July 21, 2004
                               ________________________

This is a zoning case. The principal issue is whether a rezoning amendment must explicitly
designate the maximum density approved with reference to ancillary documentation.

   Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court is Affirmed

WILLIAM H. INMAN , SR. J., delivered the opinion of the court, in which HERSCHEL P. FRANKS, P.J.,
and CHARLES D. SUSANO , JR., J., joined.

Joshua J. Bond and Wayne A. Kline, Knoxville, Tennessee, for appellants, Melvin L. Bookout,
Anthony P. and Debra L. Sliger, George E. Campbell, Fred F. and Wendy N. Foster, Carson L. and
Evelyn Barger, Todd M. and Jennifer C. Olson, Donald F. and Donna A. Sharp and States View
Homeowners Association.

Robert C. McConkey III, Knoxville, Tennessee, attorney for appellees, Knox County Board of
Zoning Appeals and Commission of Knox County.

Arthur G. Seymour Jr. and Robert L. Kahn, attorneys for appellee, The Williams Company.

John K. King, Knoxville, Tennessee, attorney for appellee, John R. Fiser.

                                           OPINION

       In 1975, the owner (GWR Inc.) of a 23.15 acre tract of land filed a request for a zoning
change with the Planning Commission. This tract was zoned Residential-B [“RB”] and Residential-
A [“RA”]; the requested change was to Planned Residential [“PR”], which would allow the tract to
be used for multi-family apartments. The Metropolitan Planning Commission [“MPC”]
recommended approval of the zoning change and the Knox County Commission [“KCC”] routinely
approved it. The number of apartments (density) was not specified by the MPC, which reported to
the KCC that “a portion of this site (the tract) is zoned RB which permits high density multi-family
. . . the proposed zoning would permit a lower density residential development of a larger area and
be in keeping with the context of the plan.” In 1998 the Senior Deputy Law Director of Knox
County responded to a request, apparently for clarification, regarding the approved unit density on
the tract, since the rezoning request of GWR specified ten (10) units per acre. He advised the MPC
that ten (10) units per acre is considered medium density, because the West Knox General Plan
proposes single family medium density. He further advised that in his opinion it was the intent of
the MPC and the KCC to approve the rezoning at a unity density of ten (10) units per acre. In 2002,
The Williams Company [“TWC”] sought approval of an application to develop a 207-unit apartment
complex on the tract, which was denied by the MPC. TWC appealed to the Board of Zoning
Appeals [“BZA”], which approved the project for 198 units, but required that TWC resubmit its
application to the MPC to assure compliance with applicable guidelines. The MPC approved the
resubmitted application with twelve conditions attached to the plan of development.

       This action was filed by the Appellants seeking to overturn the decision of the BZA to
approve the project, alleging that its action was illegal, arbitrary and capricious. The Plaintiffs and
the Defendants filed motions for summary judgment; the motions of the Defendants were granted
upon a finding that the “maximum units per acre was set by adopting the recommendations of the
MPC which incorporated (sic) the implication the application of TWC which listed ten units per
acre.” The Plaintiffs appeal.

                                        Standard of Review

        A trial court should grant a motion for summary judgment when the movant demonstrates
that there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law. Tenn. R. Civ. P. 56.04; Souder v. Health Partner, Inc., 997 S.W.2d
140, 144 (Tenn. Ct. App. 1998). The movant bears the burden of demonstrating that no genuine
issue of material fact exists. Souder, 997 S.W.2d at 144 (citing Bain v. Wells,, 936 S.W.2d 618, 622
(Tenn. 1997)). When considering a motion for summary judgment, the trial court must take the
strongest legitimate view of the evidence in favor of the nonmoving party, allow all reasonable
inferences in favor of the nonmoving party, and discard all countervailing evidence. Id. (citing Bain,
936 S.W.2d at 622). Once the moving party establishes that no genuine issue of material fact exists,
the burden falls on the nonmoving party to demonstrate the contrary by affidavits or discovery
materials, setting forth specific facts demonstrating the genuine issue of material fact for trial. Id.
(quoting Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993)). When the facts and the legal conclusions
drawn from the facts reasonably permit only one conclusion, summary judgment is appropriate. Id.
(citing Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995)). A review of a trial court’s grant of
summary judgment is de novo on the record without a presumption of correctness. Id. (citing Bain,
936 S.W.2d at 622; Warren v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997)).

        An action by a board of zoning appeals is an administrative or quasi-judicial act rather than
a legislative act. McCallen v. City of Memphis, 786 S.W.2d 633, 638-39 (Tenn. 1990). The proper
method for judicial review of an action of a board of zoning appeals is by a common law writ of
certiorari. Tenn. Code Ann. § 27-8-101; McCallen, supra. “Whether the action by the local
governmental body is legislative or administrative in nature, the [reviewing] court should refrain
from substituting its judgment for the broad discretionary authority of the local governmental body.”
McCallen, supra. The “reviewing court is limited to asking whether there was in the record before
the fact-finding body any evidence of a material or substantial nature from which the body could
have, by reasoning from that evidence, arrived at the conclusion of fact which is being reviewed.”
Massey v. Shelby County Retirement Bd., 813 S.W.2d 462, 465 (Tenn. Ct. App. 1991). The
Supreme Court in McCallen clearly described the burden faced by parties challenging the actions
of a board of zoning appeals.:

       [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.

McCallen, 786 S.W.2d at 641.

       With these instructions in mind, we turn to the issues which may be stated as follows:

               I.      Whether the trial court correctly concluded that the County
                       Commission approved a density of 10-units per acre for
                       development in 1975 when the County Commission approved
                       a request to rezone the property from Residential-A and
                       Residential-B to Planned Residential with a requested density
                       of 10 units per acres?

               II.     Whether the trial court correctly affirmed the BZA’s approval
                       of the application of TWC for development, where there was
                       substantial material evidence in the record to support BZA’s
                       decision?

               III.    Whether the trial court correctly determined that the property
                       at issue was a single parcel for purposes of zoning density
                       where the only evidence in the record was that the property
                       was identified as a single parcel for zoning purposes or
                       otherwise?

                                             Analysis

         The proposed zoning amendment in 1975 specified ten (10) apartments per acre. The MPC
staff recommended approval; the MCP and the KCC approved the rezoning. The Chancellor found
that the maximum density for the development of the property in 1975 was determined by the KCC
to be ten (10) apartments per acre. She thus agreed with the opinion of the Law Director.

       The Appellants argue that the BZA was unduly influenced by the opinion of the Law Director
respecting the intent of the MPC and KCC. As noted, he opined that the density of ten (10)
apartments per acre was established for the tract in 1975 by the KCC. We note that it is the
responsibility of the Law Director to advise the KCC respecting legal matters, and he did so,
explaining that the MPC and KCC, in 1975, rezoned the tract to PR with a density of ten (10)
apartments per acre. He further explained that ten (10) apartments per acre were specified on the
application which was approved without comment. But the Law Director clearly explained to the
BZA that the tract “was not required to be developed at ten (10) apartments per acre but only for up
to ten (10) apartments for acres.” In light of this disquisition we do not believe that the BZA was
unduly influenced by the Law Director. Taken as a whole, we think the record supports the legal
conclusion that the MPC and the KCC approved the rezoning request as found by the Chancellor.

       The Appellants argue that the BZA failed to comply with the requirements of the Knox
County Zoning Ordinance, specifically Section 5.13.01, which requires that each planned unit
development shall be compatible with the adjacent zones with respect to population density and,
Section 6.50.06, which provides that the Planning Commission shall be guided by the policies of the
General Plan and the Section Plan. The latter section further provides that the BZA “must exercise
its administrative judgment” about the location and appropriateness of the proposed plan.

         The Record of the December 18, 2002 BZA meeting reveals that there was considerable
debate about TWC’s development plan. The BZA heard testimony from the developer and the
property owner in support of TWC’s application, from MPC, and from representatives of area
residents speaking in opposition to TWC’s request. The BZA also considered several exhibits
submitted by the parties including zoning maps of the area, photographs of surrounding properties,
at least one traffic impact study, and plans for the development.

       There was testimony that TWC had taken specific action regarding landscaping and design
to minimize any adverse impact on surrounding landowners and to address concerns about any
increase in traffic that might result from the development. Testimony was heard concerning the
compatibility of the proposed development with adjacent properties, and the record reflects that this
testimony was duly considered by the BZA.

        Finally, the Appellants argue that BZA’s approval of TWC’s application was illegal, arbitrary
and capricious because the BZA treated the property as a single parcel of land for purposes of
determining zoning density, when the property should have been treated as three distinct parcels
because it is bisected by Confederate Drive and States View Drive. No authority is cited in support
of this argument. In any event the record establishes that the property was identified as a single
parcel for tax and zoning purposes.

        We note in Appellants’ brief that “there is a genuine issue of material fact as to the issues and
the matter should be remanded for trial.” The “material fact” is not identified. We infer that this
assertion has reference to the question of density, which required the BZA to consider the record of
proceedings dating back to 1975. The issue of density is one of law, not fact, and properly reachable
by summary judgment.

       The Appellees pose the issue of whether the Appellants exhausted their administrative
remedies. In light of our disposition of this case, we pretermit a discussion of this issue.
      We cannot find that the action of the BZA was illegal, arbitrary or capricious and the
judgment is affirmed at the costs of the Appellants.



                                                 ____________________________________
                                                 WILLIAM H. INMAN, SENIOR JUDGE
