                  IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                                      May 13, 2003 Session

         SAM C. WEAVER v. KNOX COUNTY BOARD OF ZONING
                          APPEALS, ET AL.

                       Appeal from the Chancery Court for Knox County
                         No. 154667-1    John F. Weaver, Chancellor

                                       FILED JUNE 30, 2003

                                  No. E2002-02000-COA-R3-CV


Sam C. Weaver filed a petition for writ of certiorari, seeking an order of the trial court setting aside
the decision of the Knox County Board of Zoning Appeals (“the BZA”) granting Crown
Communications, Inc., and BellSouth Personal Communications, Inc., dba Cingular Wireless,
(collectively “the cellular companies”) permission to construct a 195-foot cellular tower on property
owned by one of Weaver’s neighbors. The trial court dismissed the petition. We affirm.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and HERSCHEL P. FRANKS , J., joined.

Matthew J. Evans and Andrew R. Tillman, Knoxville, Tennessee, for the appellant, Sam C. Weaver.

Mary D. Miller and Melody D. Musick, Knoxville, Tennessee, for the appellees, Crown
Communications, Inc. and BellSouth Personal Communications, Inc., dba Cingular Wireless.

Michael W. Moyers, Senior Deputy Law Director, for the appellee, Knox County Board of Zoning
Appeals.

                                              OPINION

                                                   I.

        In September, 2001, the cellular companies filed an application with the Metropolitan
Planning Commission of Knoxville and Knox County (“the MPC”) requesting a permit to construct
a 275-foot cellular tower on property located in the Hardin Valley area of Knox County. Weaver and
other residents of Hardin Valley opposed the application, arguing that the presence of the tower
would reduce the value of their properties and that the erection of the tower is not necessary to
accommodate the coverage area of the cellular companies.

                                                  II.

       The subject application was before the MPC on several occasions. That body failed to
address the merits of the application. The cellular companies twice appealed to the BZA, requesting
rulings pertaining to their application. The BZA ultimately heard testimony and received
documentary evidence, following which it granted a permit to build a 195-foot tower. The BZA did
not make express findings of fact in support of its decision. However, there is before us a verbatim
record of the BZA proceedings, as well as documents submitted at that hearing.

                                                 III.

         Weaver contends that the BZA’s approval of the cellular companies’ application is illegal,
arbitrary and capricious and is unsupported by material evidence. More specifically, Weaver alleges
(1) that the BZA decision is illegal because it was based upon evidence allegedly manipulated by the
cellular companies; (2) that the decision is arbitrary and capricious because the BZA made no
findings of fact to support its decision; and (3) that there is no material evidence to support the
approval of a 195-foot tower. In addition, Weaver contends that the trial court erred when it refused
to consider evidence proffered by him that he claims is relevant to the issue of whether a new cellular
tower is needed in the Hardin Valley area.

                                                 IV.

         An action by a board of zoning appeals is an administrative rather than a legislative act.
McCallen v. City of Memphis, 786 S.W.2d 633, 639 (Tenn. 1990). This is because such an action
“executes [a law] already in existence.” Id. The term “administrative is used interchangeably with
judicial or quasi-judicial.” Id. at 638. A review of an administrative action is by way of a common
law writ of certiorari. See Tenn. Code Ann. § 27-8-101 (2000); see also McCallen, 786 S.W.2d at
639. “Whether the action by the local governmental body is legislative or administrative in nature,
the court should refrain from substituting its judgment for the broad discretionary authority of the
local governmental body.” McCallen at 641-42. However, a court should invalidate a decision that
is clearly illegal, arbitrary, or capricious. The question of whether there is sufficient evidence to
sustain a zoning action is a question of law. MC Props., Inc. v. City of Chattanooga, 994 S.W.2d
132, 134 (Tenn. Ct. App. 1999). Hence, appellate review is de novo without a presumption of
correctness accorded the court below. Id. If there is no evidence to support the local board’s action,
it is arbitrary. Sexton v. Anderson County Bd. of Zoning Appeals, 587 S.W.2d 663, 667 (Tenn. Ct.
App. 1979). The McCallen opinion provides the following additional guidance regarding our
standard of review:

               [T]he court’s primary resolve is to refrain from substituting its
               judgment for that of the local governmental body. An action will be


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               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.

Id., 786 S.W.2d at 641 (emphasis added).

        Weaver also raises an issue pertaining to an evidentiary ruling made by the trial court. He
contends that the trial court erred when it refused to allow the introduction of certain new evidence
pertaining to the cellular tower. This ruling by the trial court is reviewed by us under the abuse of
discretion standard. See, e.g., Martin v. Martin, 755 S.W.2d 793, 797 (Tenn. Ct. App. 1988).

                                                 V.

                                                 A.

         Weaver argues that the proof presented by the cellular companies to the BZA was based on
incomplete information. Therefore, so the argument goes, the decision reached by the BZA was
illegal and should have been corrected by the trial court. The essence of this argument is that maps
received into evidence and commented on by the witnesses did not properly show the levels of
coverage from existing towers in the area. Even assuming this assertion is true, this does not mean
that Weaver is entitled to a reversal of the BZA’s decision. Weaver had an opportunity to challenge
this evidence before the BZA. If he failed to do so, he is now precluded from doing so in this
judicial proceeding. The time for this type of challenge was at the hearing before the BZA.

        Weaver also argues that documentary evidence submitted to the BZA, in the form of a black
notebook, was not made available to him before the hearing. He contends that this denied him due
process. The record before us does not indicate that this evidence was concealed from Weaver.
Furthermore, the record does not reflect that Weaver made a formal request for production of this
evidence before the hearing. In fact, many of the documents contained in the notebook are in the
public domain and were available to Weaver and other members of the public. We hold that the
hearing comported with due process and that the BZA’s consideration of this evidence did not
constitute reversible error. We conclude that the ruling reached by the BZA is not rendered illegal
by the evidentiary and due process issues raised by Weaver. We resolve this issue in favor of the
cellular companies.

                                                 B.

        Weaver points out that the BZA did not make findings of fact to support its decision. He
then argues that because of this omission, reviewing courts are not in a position to determine whether
there is material evidence to support the decision made by the BZA. Weaver relies upon the case
of Hoover, Inc. v. Metro. Bd. of Zoning Appeals, 924 S.W.2d 900 (Tenn. Ct. App. M.S., 1996)


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(Hoover II), as support for his position. In Hoover II, the Middle Section of this Court made the
following comments in the course of its opinion:

                   It is the position of this court that a reviewing court can not determine
                   whether the decision of an administrative body is supported by
                   material evidence unless the administrative body makes findings of
                   facts setting forth the reasons for its decision. We do not express an
                   opinion as to whether the Western Section was correct in concluding
                   that it was not necessary for the Board to set out findings of facts
                   absent four concurring votes. Instead, it is our opinion that a
                   reviewing court can not determine if there was material evidence to
                   support a decision if the reviewing court is unaware of the basis for
                   the decision.

Id. at 905. The earlier opinion of the Western Section of this Court alluded to in Hoover II is found
at Hoover, Inc. v. Metro. Bd. of Zoning Appeals, No. 01A01-9307-CH-00312, 1994 WL 260693
(Tenn. Ct. App. W.S. at Nashville, filed June 15, 1994) (Hoover I). The decision in Hoover II was
not based on a material evidence review; hence it is clear to us that the above quote is dicta.
Furthermore, and more importantly, it is clear that the reference in Hoover I and II regarding
findings of fact is rooted in a Davidson County ordinance explicitly requiring such findings.1 We
are not aware of any general precedent placing an affirmative duty on a zoning board to pronounce
specific findings of facts. In our judgment, such findings, while helpful, are not essential to judicial
review under the material evidence standard. Accordingly, we conclude that the absence of express
findings of fact does not render the BZA’s decision illegal, arbitrary or capricious.

                                                            C.

        Weaver alleges that the BZA’s decision was not supported by material evidence.
Specifically, he contends that the evidence presented by the cellular companies before the BZA was
in support of a 260-foot tower and not the 195-foot tower ultimately approved by the BZA.
Therefore, so Weaver’s argues, no material evidence of the necessity of a 195-foot tower was
presented to the BZA and the decision must be set aside. Once again, we find this to be an issue on
which we must accord the BZA great deference. The record reflects that the Commissioners
discussed different tower heights for this application and decided on a 195-foot tower. The fact that
this height was not originally requested by the cellular companies is not controlling. During the
hearing, the BZA received a “Knoxville/Knox County Metropolitan Planning Commission Use on
Review Report.” In this report, the MPC’s staff clearly recommended the approval of a tower at a

         1
           As quoted in Ho over I, Sectio n 17.16.0 60H of the M etrop olitan C ode of Davidson C ounty provides as follows:
                   [a]ny decisio n mad e by the board on a conditional use permit shall indicate the
                   specific section of this title under which the permit is being considered and shall
                   state its findings beyond such generalities as ‘in the interest of public health, safety
                   and general welfare , . . .’
Id. at *2 (bracketing in original).

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height of 195 feet. Furthermore, the cellular companies also offered the opinion of radio engineer
David Webb, stating the following in a document entitled “Description and Certification of
Compliance of Crown Communication, Inc. as to Proposed Tower”:

               No suitable facilities exist in the proposed coverage area for Cingular,
               the carrier intending to locate upon the proposed tower, to locate its
               proposed antenna and related equipment upon in order to obtain
               suitable coverage.

While Weaver strenuously disputes this claim, the BZA clearly sided with the cellular companies
on the issue regarding the necessity of the tower. We are not empowered to reevaluate its
determination. See McCallen, 786 S.W.2d at 641.

        In addition, on the issue of property values, the BZA received a sworn affidavit from Ben
Broome, a land appraiser, who disputes Weaver’s claim of diminished property value. Weaver
himself never produced any evidence to support this claim beyond his own testimony. As previously
discussed, we must affirm the board’s factual determination if there is any material evidence in the
record to support it. See id.

       Clearly these documents provide a sufficient basis for the BZA’s decision with respect to
each of the matters raised by Weaver. We resolve this issue in favor of the cellular companies.

                                                  D.

        Weaver also argues that the trial court’s refusal to allow the admission of additional evidence
was reversible error. Applying the abuse of discretion standard outlined above, we must resolve this
issue in the cellular companies’ favor. In its memorandum opinion, the trial court correctly points
out that it may not consider evidence not presented to the BZA in determining whether material
evidence in the record supports the BZA’s determination. Hemontolor v. Wilson County Bd. of
Zoning Appeals, 883 S.W.2d 613, 618 (Tenn. Ct. App. 1994). In Hemontolor, we stated the
following:

               [Tenn. Code Ann.] § 27-9-111(b) provides: “The hearing shall be on
               the proof introduced before the board or commission contained in the
               transcript, and upon such other evidence as either party may desire to
               introduce.” Courts have limited the introduction of additional
               evidence to the question of whether the Board exceeded its
               jurisdiction or acted illegally, arbitrarily or capriciously. See Watts[v.
               Civil Serv. Bd. for Columbia], 606 S.W.2d [274,] 277 [(Tenn.
               1980)]; Massey [v. Shelby County Ret. Bd.], 813 S.W.2d [462,] 465
               [(Tenn. Ct. App. 1991)].




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Id. In our judgment, the evidence in question does not bear upon the issue “of whether [the BZA]
exceeded its jurisdiction, or acted illegally, arbitrarily or capriciously.” Id. This evidence is nothing
more than another documentary presentation of facts that were presented to the board in documents
received at the BZA hearing. The proffered documents do not conclusively demonstrate that the
documents received at the hearing were incorrect, incomplete, or otherwise of no evidentiary value.
They simply present another point of view with respect to facts that were before the BZA. They
certainly cannot be considered admissible as showing that the BZA acted improperly in this case.
The trial court’s refusal to consider the proffered evidence does not constitute an abuse of discretion.

                                                  VI.

      The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant, Sam
C. Weaver. This matter is remanded for collection of costs assessed below, pursuant to applicable
law.



                                                        _______________________________
                                                        CHARLES D. SUSANO, JR., JUDGE




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