                       IN THE COURT OF APPEALS
                             AT KNOXVILLE

                                                     FILED
                                                   December 14, 1999

                                                   Cecil Crowson, Jr.
                                                  Appellate Court Clerk

                                  )   LOUDON COUNTY
MARK MATLOCK d/b/a MSM,           )   03A01-9904-CV-00132
   DEVELOPMENT, INC.,             )
                                  )
     Plaintiff/Appellant,         )
                                  )
     v.                           )
                                  )   HON. RUSSELL E. SIMMONS, JR.
LENOIR CITY BOARD OF              )   JUDGE
   ZONING APPEALS,                )
                                  )
      Defendant/Appellee.         )
                                  )
                                  )   REVERSED AND REMANDED
                                  )




ARTHUR G. SEYMOUR, JR. and MARY ELIZABETH MADDOX, Frantz,
McConnell & Seymour, LLP, Knoxville, for Appellant


ROBERT G. HINTON and MELODY DANIEL MUSICK, Sproul & Hinton,
Lenoir City, for Appellee




                             O P I N I O N




                                                           Goddard, P.J.



          This appeal involves a zoning dispute between Mark

Matlock, doing business as MSM Development, Inc., the

Plaintiff/Appellant, and the Lenoir City Board of Zoning Appeals,

the Defendant/Appellee.     The Loudon County Circuit Court affirmed

the decision by the Board, and Mr. Matlock now appeals.
          Mr. Matlock presents three issues for our

consideration:

                 1. Whether the Board exceeded its jurisdiction
                 and abused its discretion in denying a permit
                 to the plaintiff for the use of below-ground
                 storage tanks for propane gas distribution in
                 a C-3 zone where the language of the zoning
                 ordinance clearly allows such a use.

                 2. Whether the Board acted illegally,
                 arbitrarily, and capriciously in denying a
                 permit to the plaintiff for the use of
                 below-ground storage tanks for propane gas
                 distribution in a C-3 zone where the language
                 of the zoning ordinance clearly allows such
                 a use.

                 3. Whether the Board acted illegally,
                 arbitrarily, and capriciously in denying a
                 permit to the plaintiff for the use of above-
                 ground storage tanks for propane gas
                 distribution in a C-3 zone where the
                 ordinance is not being actively enforced as
                 against other property owners in that zone.




          Mr. Matlock owns four acres of land on Simpson Road in

Lenoir City having purchased the property on April 20, 1998.      He

would like to build a propane gas distribution center on the

property, which is zoned C-3 “Highway Commercial District”

pursuant to the Lenoir City Zoning Ordinance.




          On May 4, 1998, Mr. Matlock submitted to the Loudon

County Office of Planning a site plan, which did not indicate

locations for the propane gas tanks.   Pat Phillips with the

Loudon County Office of Planning requested changes to the site

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plan to indicate tank locations.       Mr. Matlock made the requested

changes and resubmitted the plan.




           At its June 2, 1998 meeting, the Board decided that

above-ground tanks were not permitted in a C-3 zone and denied

Mr. Matlock’s request for them on his property.




           At its July 7, 1998, the Board considered Mr. Matlock’s

proposal for below-ground tanks, but decided that a bulk

distribution center for propane gas is not permitted in a C-3

zone.   On August 18, 1998, Mr. Matlock filed a Petition for a

Writ of Certiorari in the Loudon County Circuit Court.




           On March 22, 1999, the Loudon County Circuit Court

dismissed Mr. Matlock’s Petition for Writ of Certiorari, and Mr.

Matlock filed this appeal.




           Mr. Matlock argues that the Board acted illegally,

arbitrarily, and capriciously in denying his permit for the use

of below-ground storage tanks.   The Lenoir City Zoning Ordinance

provides for the following permitted uses and structures in a C-3

zone:



                                   3
               a.   Any use permitted in the C-2, Central
                    Business District.
               b.   Motels and tourist courts.
               c.   Service repair establishments, including
                    service stations, automobile sales, and
                    repair garages.
               d.   Tire recapping or retreading.
               e.   Veterinary establishments provided that
                    all animals shall be kept inside
                    soundproof, air-conditioned buildings.
               f.   Wholesale and distributing center not
                    involving over five thousand (5,000)
                    square feet for storage of wares.
               g.   Shopping centers, including the location
                    of more than one building on a lot
                    provided such buildings share a common
                    fire resistant wall.




          Mr. Matlock insists that his proposed use for the

Simpson Road site is permitted under section “f” above.       He

argues that his propane gas business would consist of a wholesale

and distribution center less than 5,000 square feet for propane

gas, which is a “ware.”




          The Board, however, argues that a propane gas

distribution center is not a permitted use in a C-3 zone.

Because there was no definition of “wares” in the ordinance, the

Board had to interpret the definition to determine whether the

proposed use was permissible in a C-3 zone, and it concluded that

a propane gas distribution center was permissible in an

industrial zone, not a C-3 zone.       Mr. Phillips also noted that

tanks are usually measured in volume, not square footage.




                                   4
          Tennessee Code Annotated § 27-8-101 provides for a writ

of certiorari:

               The writ of certiorari may be granted whenever
          authorized by law, and also in all cases where an
          inferior tribunal, board, or officer exercising
          judicial functions has exceeded the jurisdiction
          conferred, or is acting illegally, when, in the
          judgment of the court, there is no other plain,
          speedy, or adequate remedy.



          Review of a writ of certiorari is limited to whether

“the inferior board or tribunal (1) has exceeded its

jurisdiction, or (2) has acted illegally, arbitrarily, or

fraudulently.”   McCallen v. City of Memphis, 786 S.W.2d 633, 638

(Tenn. 1990) (citations omitted).




          Rules applicable to the construction of statutes and

other ordinances also apply to zoning ordinances.   City of

Knoxville v. Brown, 195 Tenn. 501, 507, 260 S.W.2d 264, 267

(1953).   Zoning ordinances should be strictly construed. City of

Knoxville, 195 Tenn. at 507, 260 S.W.2d at 267.   Therefore, a

zoning ordinance is construed as a whole, with words given their

natural and ordinary meaning. Tennessee Manufactured Housing

Association v. Metropolitan Government of Nashville, 798 S.W.2d

254, 257 (Tenn. Ct. App. 1990).




          Courts “must also construe zoning ordinances with some

deference toward a property owner’s right to the free use of his

                                  5
or her property.”   Lions Head Homeowners’ Association v.

Metropolitan Board of Zoning Appeals, 968 S.W.2d 296, 301 (Tenn.

Ct. App. 1997)(citations omitted).     Courts should resolve

ambiguities in a zoning ordinance in favor of a property owner’s

unrestricted use of the property.     Lions Head Homeowners’

Association, 968 S.W.2d at 301.




          Webster’s Third New International Dictionary defines

“ware” as “goods, commodities, manufactures, or produce of a

specific class or kind . . . an intangible item (as a service or

a literary product) that is a marketable commodity.”




          If we strictly construe the pertinent zoning ordinance,

Mr. Matlock’s proposed use for the site would consist of a

distribution center less than 5,000 square feet for storage of

the propane gas, which is a commodity.      Consequently, we

conclude that Mr. Matlock’s proposed use for the Simpson Road

site is permitted under the C-3 zoning ordinance.




          Based on the foregoing, we conclude that the Board

acted arbitrarily and capriciously in denying a permit to Mr.

Matlock for the use of below-ground storage tanks for his propane

gas distribution center.



                                  6
          Having found that the Board acted arbitrarily and

capriciously, we need not address the remaining issues on appeal.

This case is remanded to the Trial Court for further proceedings

consistent with this opinion and collection of costs below.

Costs of appeal are adjudged against the Board.




                                    _________________________
                                    Houston M. Goddard, P.J.

CONCUR:



______________________
Herschel P. Franks, J.



______________________
D. Michael Swiney, J.




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