                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT KNOXVILLE
                             February 15, 2005 Session

GEORGE HUTSELL AND TERESA HUTSELL, v. JEFFERSON COUNTY
              BOARD OF ZONING APPEALS

                Direct Appeal from the Chancery Court for Jefferson County
                       No. 18,446    Hon. Richard Vance, Chancellor



                   No. E2004-00968-COA-R3-CV - FILED APRIL 26, 2005



Plaintiffs obtained a permit and built a “garage and storage building” on their property. The zoning
officer received complaints after the building was built, and the Board of Zoning Appeals determined
that plaintiffs’ use of the building was not allowed in the zoning classification. On certiorari, the
Trial Judge affirmed the Board of Zoning Appeals’ decision and enjoined plaintiffs from using the
building in violation of the zoning ordinance. On appeal, we affirm.


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


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which CHARLES D. SUSANO ,
JR., J., and SHARON G. LEE, J., joined.

Clinton R. Anderson, Morristown, Tennessee, for appellant.

S. Douglas Drinnon, Jeffrey L. Jones, and Larry Ray Churchwell, Dandridge Tennessee, for
Appellee.



                                             OPINION


                In April 2001, Plaintiff Hutsell applied for and received a permit to construct an
accessory storage building on his property. The subject property is zoned A-1 (Agricultural-
Forestry); and the designated uses are for “single family houses, duplexes, agricultural uses and sales
including barns, storage sheds, . . . neighborhood commercial convenience uses including barber and
beauty shops, gasoline stations. . . repair shops. . .” George Hutsell represented that he intended to
place hay, antique cars, and storage in the building. The resulting metal building was 48 x 150, with
large warehouse-type doors and a concrete loading dock. He subsequently used the building for
warehousing tractor-trailer loads of doors and other materials for his retail building supply store in
Morristown. He admits that when he applied for the building permit he never told the zoning
compliance officer that he would be warehousing doors for his commercial business.

                Hutsell was cited to the Board of Zoning Appeals for being in violation of the
Jefferson County Zoning Ordinance, § 9.3. The Board of Zoning Appeals (BZA) determined that
the building’s use was in violation of § 9.3. Plaintiffs petitioned the Circuit Court for a writ of
certiorari, which was granted, but relief was denied. The plaintiffs were also enjoined from using
the property as commercial storage or warehouse for their business operation in Morristown. This
appeal followed.

               Plaintiffs raise these issues on appeal:

               1.      Did the Board of Zoning Appeals meet the requirements of Tenn. Code Ann.
                       § 8-44-104, which requires that minutes of a governmental body be “fully
                       recorded”?

               2.      Is the Jefferson County Zoning Ordinance unconstitutionally vague insofar
                       as its definition citing uses allowed in A-1 zones?

               3.      Was the decision of the Board of Zoning Appeals arbitrary?

               4.      Do the standards of review of the actions of zoning boards violate Article 1,
                       Section 17 of the Tennessee Constitution?

               5.      Was the use of the property prior to the adoption of the zoning ordinance such
                       that it could be expanded, or was otherwise “grandfathered” pursuant to Tenn.
                       Code Ann. § 13-7-208(c)?

               Whether the particular use meets the requirement of a zoning ordinance is an
administrative or quasi-judicial function. McCallen v. City of Memphis, 786 S.W.2d 633, 640
(Tenn.1990); citing Mullins v. City of Knoxville, 665 S.W.2d 393, 396 (Tenn. Ct. App. 1983);
Hutcherson v. Lauderdale County Bd. of Zoning Appeals, 121 S.W.3d 372, 376 (Tenn. Ct. App.
2003).

                It is well-settled that the judicial review of decisions of the local Board of Zoning
Appeals is via the common law writ of certiorari. City of Brentwood v. Metropolitan Bd. of Zoning
Appeals, 149 S.W.3d 49, 57 (Tenn. Ct. App. 2004). The scope of judicial review under the common
law writ of certiorari is narrow, and limited to whether the inferior tribunal has exceeded its
jurisdiction, or has acted illegally, arbitrarily, or fraudulently. McCallen v. City of Memphis, 785
S.W.2d 633, 638 (Tenn. 1990); Hoover Motor Exp. Co. v. Railroad and Public Util. Comm’n, 261
S.W.2d 233, 238 (Tenn. 1953). The issues are questions of law, and we review de novo with no


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presumption of correctness afforded to the trial court’s ruling. Case v. Shelby County Civil Service
Merit Bd., 98 S.W.3d 167, 172 (Tenn. Ct. App. 2002). If “any possible reason” exists to justify the
board’s decision, this court must affirm. McCallen, 786 S.W.2d at 641; McRae v. Knox County,
2004 WL 1056669 at *3 (Tenn. Ct. App. May 7, 2004).

                 Plaintiffs argue that the proceedings before the Board of Zoning Appeals should have
been fully recorded, and were concerned that a statement made by the State Planner, to the effect
that “it is difficult to know where to draw the line between repair shop and industry” was not
included in the meeting’s minutes. At the hearing before the Trial Court, the State Planner affirmed
making the comments.

                Tenn. Code Ann. § 8-44-104 1 provides that the minutes of any meeting subject to
the Open Meetings Act shall be “promptly and fully recorded.” Plaintiffs seek to have this Court
construe the language to mean “complete and exact.” Significantly, the statute does not state that
the proceedings must be recorded by audio, video, or otherwise. Appellants’ proposed construction
of Tenn. Code Ann. § 8-44-104 overlooks that it is the “minutes” that are to be “promptly and fully
recorded,” not the entire proceedings. “Minutes” is defined as “Memoranda or notes of a transaction
or proceedings. Thus, the record of the proceedings at a meeting of directors or shareholders of a
company is called the ‘minutes.’” Black’s Law Dictionary, 6 th ed. at 998.

               Assuming arguendo that the minutes are incomplete as plaintiffs contend, extrinsic
evidence may be admitted to supply omissions in records or minutes of a meeting, especially where
there is no dispute that a particular event occurred. See, e.g., Cagle v. Wheeler, 242 S.W.2d 338
(Tenn. Ct. App. 1951); Foust v. May, 660 S.W.2d 487 (Tenn. 1983).

              Plaintiffs had the opportunity to introduce any evidence they felt was omitted from
the minutes before the Trial Court, and they did cross examine the witness, who did not deny the
comments attributed to him. The Appellants’ argument, as framed in the context of the Open
Meetings Act, is without merit.

                Next, appellants argue the ordinance is unconstitutionally vague, and insist that the
terms “repair shop” and “storage shed” are vague and overbroad. They point to the phrases
“agricultural uses and sales including. . .” and “neighborhood convenience uses including. . . “. They
assert that such imprecision results in the BZA acquiring an impermissible degree of discretion.

               Zoning ordinances are construed using the same principles employed to construe
statutes. Tennessee Manufactured Hous. Ass’n v. Metropolitan Gov’t., 798 S.W.2d 254, 260 (Tenn.
Ct. App. 2000). If an ordinance is so vague that persons of common intelligence must necessarily
guess at its meaning, it will not pass constitutional scrutiny. Board of Commissioners of Roane


       1
        Tenn. Code Ann. § 8-44-104:
       (a) The minutes of a meeting of any such governmental body shall be promptly and fully recorded, shall be open
       to public inspection, and shall include, but not be limited to, a record of persons present, all motions, proposals
       and resolutions offered, the results of any votes taken, and a record of individual votes in the event of roll call.

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County v. Parker, 88 S.W.3d 916, 923 (Tenn. Ct. App. 2002). However, “a land use regulation that
can be upheld by giving it a reasonable construction will not be declared void for uncertainty.” Smith
County v. Enoch, 2003 Tenn. App. Lexis 156 at * 24 (Tenn. Ct. App. Feb. 26, 2003). Moreover,
when the “evil sought to be prevented is apparent a reasonable construction of the language
employed is justified, and uncertainty can frequently be removed by resort to the context, instead of
attempting to construe the words by themselves.” State v. Sanner Contracting Co., 514 P.2d 443,
445-46 (Ariz. 1973). Courts do not void enactments on vagueness grounds merely because they
could have been drafted with greater readability. State v. Wilkins, 655 S.W.2d 914, 915 (Tenn.
1983).

                The construction of a zoning ordinance and its application to a particular circumstance
are questions for the local officials to decide. Whittemore v. Brentwood Planning Comm’n., 835
S.W.2d at 16, citing Sokol v. City of Lake Oswego, 786 P.2d 1324, 1325 (Or. Ct. App. 1990). The
ordinance in question, while inartfully drafted, uses ordinary language capable of ordinary and
common understanding. The terms “storage shed” and “repair shop” are common every day terms
and when considered in the context of the ordinance, the intent is clear. It was appropriate for the
BZA to take into account any misrepresentations made by the plaintiffs in disclosing the nature of
the proposed building and its intended use when obtaining initial approval. Lafferty v. City of
Winchester, 46 S.W.3d at 760. Plaintiff Hutsell admitted that he attempted to have the property re-
zoned as C-2 in order accommodate his warehousing purposes. He also conceded that he claimed
to the BZA that the building was used as a repair shop in order to fit within the A-1 classification.
Plaintiff’s own testimony suggests that he understood the meaning and intent of the ordinances, and
we conclude this issue is without merit.

              Plaintiffs next argue that the BZA acted arbitrarily by finding that the building in
question was not a storage shed or a repair shop within the meaning of the zoning resolutions.

                The “illegal, arbitrary and capricious”standard applicable to quasi-judicial acts of
inferior tribunals is essentially the same as the “fairly debatable, rational basis” standard applied to
legislative acts, and “requir[es] considerable deference to the decision of the governmental
authority.” McCallen, 786 S.W.2d at 640. “In either instance, the court’s primary resolve is to refrain
from substituting its judgment for that of the local governmental body.” Id. at 641. The local
bodies’ decisions are presumed valid and a heavy burden of proof rests on the party challenging the
actions. Id. at 642.

                The decision of a local zoning board is deemed arbitrary only when there is no
evidence in the record to support it. Lafferty, 46 S.W.3d at 759. Plaintiff Hutsell’s own testimony
in the record establishes a basis for the BZA’s decision that his use of the building was in violation
of the purpose and intent of the zoning regulations. There is material evidence in the record before
us which forms a rational basis for the Board’s decision. Laffery, 46 S.W.3d 760.

                Next plaintiffs argue the standard of review of a board or commission’s decision
under the writ of certiorari procedure violates the “open courts” clause of the Tennessee Constitution,



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Art. I, sec. 17. 2 They contend that by limiting review of the Board’s decisions to the arbitrary,
capricious, or illegal test, a citizen has no meaningful access to the courts. This argument
misapprehends the nature and scope of the common law writ of certiorari.

                 In order for a statute to be invalid, it must plainly be obnoxious to some constitutional
provision, Perry v. Lawrence County Election Comm’n, 411 S.W.2d 538 (Tenn. 1967). In this case,
appellants attack the constitutionality of a doctrine and long standing procedure which is sanctioned
in the Tennessee Constitution and recognized by the General Assembly. See Article VI, § 10 of the
Tennessee Constitution, and Tenn. Code Ann. § 27-8-101. The common law writ is “nothing more
and nothing less than the ancient common law writ of certiorari dating from remote antiquity.”
Windsor v. DeKalb County Bd. Of Educ., 2004 WL 875263 at *4 (Tenn. Ct. App. Apr. 22, 2004).
For this reason and the failure of plaintiffs to follow the proper procedure for challenging the validity
of a statute rule or regulation, See Tenn. R. Civ. P. 24.04 and Tenn. R. App. P. 32, Tenn. Code Ann.
§ 29-14-107(b), the issue is without merit.

                 Plaintiffs’ final issue is that the building’s use is grandfathered by virtue of the pre-
existing and non-conforming use of the barn on the property, pursuant to Tenn. Code Ann. § 13-7-
208(c). They contend that the present use is actually an expansion of the pre-existing use, even
though the evidence showed that Plaintiffs never obtained a business license for the activities and
use related to the barn, as he did for the building in question. At trial, counsel conceded that he had
not proved the grandfathering of a repair shop, and limited his theory to the “expansion” of a pre-
existing non-conforming use. This concession is binding upon the appellant. Town of Surgeoinsville
v. Sandidge, 866 S.W.2d 553, 555 (Tenn. Ct. App. 1993). On this issue, plaintiffs’ argument consists
of a bald assertion that the Trial Court erred. There is no citation pointing to the alleged error, and
no citation to authority as to why the Trial Court may have been in error. See, Utter v. Sherrod, 132
S.W.3d 344, 352 (Tenn. Ct. App. 2003). This issue is also without merit.

              The Judgment of the Trial Court is affirmed, and the cost of the appeal is assessed to
George Hutsell and Teresa Hutsell.




                                                                ______________________________
                                                                HERSCHEL PICKENS FRANKS, P.J.




        2
         § 17. Remedies in courts, suits against state
        That all courts shall be open; and every man, for an injury done him in his lands, goods, person or reputation,
        shall have remedy by due course of law, and right and justice administered without sale, denial, or delay. Suits
        may be brought against the State in such manner and in such courts as the Legislature may by law direct.

        Const. Art. 1, § 17



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