               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                                 May 3, 2016 Session

  WESTERN FARM PRODUCTS, LLC, INC. v. SUMNER COUNTY, TN,
                       ET AL.

                Appeal from the Chancery Court for Sumner County
                 No. 2011CV421     Joe H. Thompson, Chancellor
                          ___________________________

        No. M2015-02003-COA-R3-CV – Filed June 19, 2017
                    _________________________________

A property owner who wished to construct and operate a quarry sought a declaratory
judgment that a Sumner County Zoning Resolution, which was alleged to exclude
quarrying and mining activities, is unconstitutional and in violation of the Tennessee
zoning enabling statutes. A group of adjoining property owners were permitted to
intervene in the proceeding, and the court granted summary judgment to the county and
adjoining property owners. The property owner now appeals. We find that the evidence
relied upon by the property owner does not establish that the ordinance at issue prohibits
all quarrying activities and affirm the trial court’s judgment.

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

RICHARD H. DINKINS, J., delivered the opinion of the court, in which FRANK G.
CLEMENT, JR., P.J., M.S., and THOMAS R. FRIERSON, II, J., joined.

Thomas V. White and George A. Dean, Nashville, Tennessee, for the appellant, Western
Farm Products LLC, Inc.

Leah May Dennen, Gallatin, Tennessee; and A. Scott Derrick, Nashville, Tennessee, for
the appellee, Sumner County, Tennessee.

David M. Amonette, Gallatin, Tennessee, for the intervening appellees, Thomas Neal, Jr.,
Lester Lonzo Luce, Carol Dee Luce, John J. Simons, and Allyson Simons.

                                       OPINION

      This is the second appeal in this case. In the first appeal, styled Western Farm
Products, LLC v. Sumner County, No. M2013-01578-COA-R3-CV, 2014 WL 1852973
(Tenn. Ct. App. May 5, 2014), Western Farm Products, LLC (“Western”) appealed the
dismissal of its petition for certiorari review of the Sumner County Board of Zoning
Appeals’ denial of a conditional use permit to operate a quarry on its 350 acres of
property which is currently zoned RIA, general residential; we affirmed the trial court.
On September 2, 2011, the same day it filed the petition for certiorari, Western filed a
declaratory judgment action naming Sumner County (“the County”) as defendant; no
action was taken on that case while the certiorari case was on appeal. The instant appeal
is from the trial court’s grant of summary judgment against Western in the declaratory
judgment action.

       Western sought a declaration that the Sumner County Zoning Resolution, which
operates as the county’s zoning plan, did not specifically permit mining and quarrying in
the county, and that the exclusion of these activities violated the Tennessee Constitution
and zoning statutes at Tennessee Code Annotated section 13-7-101, et seq. Western
requested that the court, inter alia, issue an injunction preventing the County from
excluding mining and quarrying activity and order the County to issue Western a building
permit or certificate of occupancy for the proposed quarry. 1 Thomas Neal, Jr., Lester
Lonzo Luce and wife, Carol Dee Luce, and John J. Simons and wife, Allyson Simons,
owners of property adjacent to Western’s property (the “Intervenors”), were allowed to
intervene in the case; they opposed Western’s proposed use of its property, contending
that Western’s proposal “to operate a quarry with asphalt and concrete plants and rock
crushing facilities . . . would dramatically impact the nature and value of [their] adjoining
property, as well as [their] peace and enjoyment of same.”

       In due course, the Intervenors moved for summary judgment, contending that the
action taken by the Sumner County Board of Commissioners on May 19, 2014, to amend
the Zoning Resolution to create a floating district entitled the “Mining and Quarrying
Floating Zone,” which serves as a floating zone over areas which are zoned Industrial,
permits the activities in which Western is engaged and, therefore, rendered Western’s
action moot. The trial court held that the Zoning Resolution, as amended, permitted
mining and quarrying and, consequently, granted summary judgment to the Intervenors.2
Western appeals, raising the following issue: “Whether the Sumner County Zoning
Regulations effectively excludes quarries from locating within the county?”



1
  On Intervenors’ motion for judgment on the pleadings, the court struck the prayer for relief requesting
that the court order the County to issue a building permit or certificate of occupancy. The ruling on that
motion is not at issue in this appeal.
2
  Sumner County had filed a response in support of the summary judgment motion; after the motion was
granted, an order was entered holding that “summary judgment applies equally to Sumner County . . .
[and that] [Western] and the County agree that plaintiff’s claims . . . should be dismissed in their entirety
and the Final Order Granting Judgment entered.”

                                                     2
I. STANDARD OF REVIEW

       This case, filed on September 2, 2011, was resolved on motion for summary
judgment. A party is entitled to summary judgment only if the “pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits…show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Tenn. R. Civ. P. 56.04.3 We review the trial court’s ruling
on a motion for summary judgment de novo with no presumption of correctness, as the
resolution of the motion is a matter of law. Rye v. Women’s Care Ctr. of Memphis,
MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing Bain v. Wells, 936 S.W.2d 618, 622
(Tenn. 1997); Abshure v. Methodist Healthcare–Memphis Hosp., 325 S.W.3d 98, 103
(Tenn. 2010)). We view the evidence in favor of the non-moving party by resolving all
reasonable inferences in its favor. Stovall v. Clarke, 113 S.W.3d 715, 721 (Tenn. 2003);
Godfrey v. Ruiz, 90 S.W.3d 692,695 (Tenn. 2002).

II. DISCUSSION

       As an initial matter we address the Intervenors’ argument that the trial court could
have granted them summary judgment on the issue of mootness. In presenting their
motion for summary judgment, the Intervenors took the position that the Board of
Commissioners’ passage of the amendment to the Zoning Resolution that created the
floating zone rendered the case moot, arguing that:

       [e]ven if this Court were to agree with Plaintiff that the Sumner County
       Zoning Ordinance is unconstitutional[, t]he only remedy this Court could
       grant would be to remand the case to the Sumner County legislative body in

3
   Prior to July 1, 2011, courts which were considering motions for summary judgment were to apply the
standard set forth in Hannan v. Alltel Publishing Co., 270 S.W.3d 1 (Tenn. 2008); for cases filed after
July 1, 2011, courts were to apply Tennessee Code Annotated section 20-16-101. In Rye v. Women’s
Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235 (Tenn. 2015), our Supreme Court overruled Hannan and
adopted the standard applicable to summary judgment practice under Federal Rule 56; the court opined:

       Our overruling of Hannan means that in Tennessee, as in the federal system, when the
       moving party does not bear the burden of proof at trial, the moving party may satisfy its
       burden of production either (1) by affirmatively negating an essential element of the
       nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s evidence at
       the summary judgment stage is insufficient to establish the nonmoving party's claim or
       defense. ... The nonmoving party must demonstrate the existence of specific facts in the
       record which could lead a rational trier of fact to find in favor of the nonmoving party.

Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264-65 (Tenn. 2015). In the
Memorandum Opinion, the court correctly noted that section 20-16-101 governed the consideration of the
motion.

                                                  3
       order to require it to amend its zoning resolution accordingly. Robertson
       County, Tennessee v. Browning-Ferris Industries of Tennessee, Inc., 799
       S.W.2d 662 at 667 (Tenn. Ct. App. 1990). Because this has already
       occurred, there is nothing further for this Honorable Court to do in this
       case. The Plaintiff’s case is moot.
       ***
       Likewise, a ruling by this Court upholding the constitutionality of the
       original Sumner County Zoning Ordinance would be meaningless and
       unnecessary since the Ordinance has already been amended.

The trial court rejected Intervenors’ argument, holding that it was called upon “to decide
whether Sumner County’s zoning scheme amounts to a de facto exclusionary zoning of
quarries/mines” rather than the de jure exclusionary zoning ordinance at issue in
Robertson County. Intervenors reiterate the argument on appeal.

        We respectfully disagree that this matter was rendered moot by the county’s
passage of the amendment to the Zoning Resolution. A moot case is one that has lost its
justiciability because it no longer involves a present, ongoing controversy. McCanless v.
Klein, 188 S.W.2d 745, 747 (Tenn. 1945); County of Shelby v. McWherter, 936 S.W.2d
923, 931 (Tenn. Ct. App. 1996). “[A] case will be considered moot if it no longer serves
as a means to provide some sort of judicial relief to the prevailing party.” Clay, 984
S.W.2d at 616; see also Knott v. Stewart County, 207 S.W.2d 337, 338-39 (Tenn. 1948).
An appellate court will dismiss an appeal “as moot when ‘by a court decision, acts of
parties, or other causes occurring after the commencement of the action the case has lost
its controversial character.’” West v. Vought Aircraft Industries, Inc., 256 S.W.3d 618,
625 (Tenn. 2008) (citing McCanless, 188 S.W.2d at 747)). “Determining whether a case
is moot is a question of law.” Alliance for Native American Indian Rights in Tennessee,
Inc. v. Nicely, 182 S.W.3d 333, 339 (Tenn. Ct. App. 2005); Harriet Tubman Dev./CHA v.
Locklin, 386 S.W.3d 239, 242 (Tenn. Ct. App. 2012).

        In reliance on Robertson County v. Browning Ferris Industries, 799 S.W.2d 662
(Tenn. Ct. App. 1990), Intervenors argue, as they did before the trial court, that “[o]nce
Sumner County amended its zoning ordinance to add the new ‘Mining and Quarrying
Floating Zone,’ the constitutionality of the old zoning ordinance became irrelevant and
Western’s suit challenging the old zoning ordinance became moot.” We do not agree.
As correctly noted by the trial court, Robertson County involved a de jure challenge to a
zoning ordinance that explicitly prohibited private landfills; contrariwise, the resolution
of this case calls for a factual determination of whether the ordinance that created the
“floating zone” permitting quarrying activities amounts to a de facto exclusion of those
activities because, as a practical matter, there is no place in the county in which the
quarrying activities could take place. In light of such a de facto claim, the “logical place
to begin is with the question of whether, as a matter of fact, there is no location in
[Sumner] County where a new . . . [quarry] could be constructed and operated in
                                             4
compliance with all applicable state and local regulations.” Consol. Waste Sys., LLC v.
Metro Gov’t. of Nashville & Davidson County, No. M2002-02582-COA-R3-CV, 2005
WL 1541860 (Tenn. Ct. App. June 30, 2005) at *36. This question belies the argument
that the case became moot with the passage of the ordinance; consequently, we proceed
to address the merits of the appeal.

       We start by recognizing, as did the trial court, that “there is a presumption in favor
of the validity of ordinances and those questioning its validity have the burden of proof.”
Town of Surgoinsville v. Sandidge, 866 S.W.2d 553, 555 (Tenn. Ct. App. 1993).
Consistent with Sandidge, Western had the burden of proof at trial to show that the
Zoning Resolution operates to exclude quarrying activities. For purposes of summary
judgment, Intervenors had the initial burden of either affirmatively negating an essential
element of Western’s claim or demonstrating that Western’s evidence was insufficient to
establish the claim.

       In their motion for summary judgment, Intervenors filed a Tenn. R. Civ. P. 56.03
statement of undisputed facts, which were responded to by Western; the fact most
pertinent to the issue presented in this appeal states:

        8. Subsequent to this Court striking the Plaintiff’s third prayer for relief,
        the legislative body of Sumner County (i.e., the Sumner County Board of
        County Commissioners) passed Resolution 1405-011 May 19, 2014,
        amending the Sumner County Zoning Resolution to add Article XVIII,
        creating a new zoning district entitled “Mining and Quarrying Floating
        Zone,” which functions as a floating zoning district throughout Sumner
        County.

        Response: Admitted, except that the floating zone amendment requires that
        the floating zone for mining and quarrying be located in an area zoned
        Industrial. See §A(1).

The admission that the new zoning district established in the resolution functioned as a
floating zone that permitted quarrying negated Western’s claim that quarrying was not
permitted in the county and shifted the burden to Western to introduce evidence of
specific facts to find in its favor.

       To satisfy its burden, Western relied upon the affidavit of John Gordon,4 pertinent
portions of which state:
4
   Sumner County argues that the affidavit should not have been admitted or considered by the trial court
and should not be considered by this court because Mr. Gordon’s affidavit does not comply with the
requirements of Tenn. R. Civ. P. 56.06 by failing to state that the affidavit was made on “personal
knowledge” and by not referring to “specific property.” The record shows that the County moved to
strike Mr. Gordon’s affidavit on the sole basis that he had not been identified as an expert; that motion
                                                   5
        ***
        2. As part of my professional duties as a licensed engineer, I have practiced
        extensively in the area of engineering related to quarries inquiry activities.
        ***
        4. Generally, when seeking a proposed location for a quarry, the minimum
        size of the property must be 100 acres or more.
        5. The 100-acre rule is based on many separate factors for site selection.
        There must obviously be feasible limestone under the parcel. Just because
        the local government sets aside an area zoned appropriately for a quarry
        does not mean that there is limestone under it that can be removed feasibly.
        6. The location for this type of facility is determined by the unique natural
        location of the limestone deposit to be mined, and is not amenable to
        placement at alternative site locations. Other factors for facility selection
        include relative proximity to transportation, topography, and availability of
        the property.
        7. If the local regulations have unusual setback requirements, the minimum
        size needs to be in excess of 100 acres.
        8. Given the expense of property acquisition, engineering, and accessory
        activities, to plan a quarry of a smaller size is not reasonable from an
        engineering perspective.

Western also relied on estimates contained in the county’s 2035 Comprehensive Plan to
establish that there are a total of 241,746 acres of land within the county’s planning
jurisdiction, with 71 of those acres zoned for industrial use. On the basis of that
evidence, Western argues:

        As a result, the adoption of the floating zone mining and quarrying
        amendment to the Sumner County Zoning Regulations certainly did not
        remedy the total exclusion of mining and quarrying activities from the
        County. In fact, it merely replaced one type of prohibition with another:
        first, the amount of land zoned for industrial use is an absurdly low amount
        and second, there is not enough industrial zoning in the entire county to
        establish a quarry; the effect of either of these facts renders the zoning
        regulations a total exclusion.

We are not convinced, on the record before us, that the floating zone operates as a de
facto exclusion of zoning in Sumner County.


was denied, with the court stating that it would “give the affidavit and testimony only such consideration
as it is due,” and allowing the County additional time to identify its expert witnesses. Having failed to
present the objection to the affidavit to the trial court, it cannot be raised in the first instance on appeal.
See Barnes v. Barnes, 193 S.W.3d 495, 501 (Tenn. 2006). In any event, the County’s objections to the
affidavit on appeal go only to the weight to be afforded the information and opinions expressed.
                                                      6
        The narrow question we resolve is not whether Western’s proposal to operate a
quarry is feasible and should be approved but, rather, whether any quarrying activities,
which are permitted under the amendment, are possible in Sumner County. The evidence
relied upon by Western shows only that there are 241,746 acres of land within the
County’s jurisdiction, with 71 of those acres currently zoned for industrial purposes. Mr.
Gordon’s opinion, while informative, primarily addresses the practicality of Western’s
proposal within the context of the 71 acres currently zoned industrial.5 The amendment
to the zoning resolution specifically permits quarrying and mining activity; the evidence
does not show that there is no land in the County where such activity can take place
feasibly and in compliance with applicable regulations. See Consol. Waste Sys., LLC.,
2005 WL 1541860 at *40. The evidence does not establish that quarrying and mining
activities are not possible.

III. CONCLUSION

          For the foregoing reasons, the judgment of the trial court is affirmed.




                                                            RICHARD H. DINKINS, JUDGE




5
    His opinion does not address the possibility that land not currently zoned industrial can be rezoned.
                                                       7
