Consolidated Waste Systems v. Metro Government of Nashville and Davidson County, No. M2002-02582-COA-R3-CV (TN 6/30/2005), No. M2002-02582-COA-R3-CV.

CourtSupreme Court of Tennessee
Writing for the CourtPatricia J. Cottrell
Decision Date30 June 2005
Docket NumberNo. M2002-02582-COA-R3-CV.

Page 1

Unpublished Opinion

No. M2002-02582-COA-R3-CV.
Court of Appeals of Tennessee, at Nashville.
May 7, 2003 Session.
Filed June 30, 2005.

Appeal from the Circuit Court for Davidson County; No. 01C895; Walter C. Kurtz, Judge.

Judgment of the Circuit Court Affirmed.

C. Dawn Deaner, Daniel Champney, Thomas Cross, Nashville, Tennessee, for the appellant, The Metropolitan Government of Nashville and Davidson County.

James L. Murphy, III; Colin J. Carnahan, Nashville, Tennessee, for the appellee, Consolidated Waste Systems, LLC.

Patricia J. Cottrell, J., delivered the opinion of the court, in which Ben H. Cantrell, P.J., M.S., and William C. Koch, JR., J., joined.



A would-be developer of a construction and demolition landfill sued the Metropolitan Government after its legislative body adopted zoning amendments that would effectively preclude the proposed landfill on the property the company had leased with an option to purchase. The company attacked the ordinances on multiple grounds and was successful in having the trial court declare them unconstitutional as violative of substantive due process and equal protection. Because of the company's limited interest in the real property, however, the court refused to grant an injunction prohibiting the enforcement of the ordinances against the company or to award damages. The trial court also awarded attorney's fees to the company. The Metropolitan Government appeals the holding that the ordinances were unconstitutional on the merits as well as on a number of procedural grounds and also appeals the award of attorney's fees. The company appeals the trial court's decision that the ordinances did not constitute exclusionary zoning. We affirm the trial court on all issues.

This case arises from the passage by the Metropolitan Government of Nashville and Davidson County Council of two amendments to its zoning ordinance that regulated the location of construction and demolition ("C&D") landfills within the county. The ordinances had the effect of precluding the development of such a landfill on real property that Consolidated Waste Systems, L.L.C. ("Consolidated") had leased with an option to purchase for the purpose of developing a C&D landfill prior to the amendments.

Consolidated filed a lawsuit challenging the legislative amendments to the zoning ordinance based on a number of claims, including:

(1) That the ordinances constituted exclusionary zoning since they were intended to and had the effect of precluding C&D landfills anywhere in the county.

(2) That the ordinances deprived Consolidated of its interest in the real property in violation of constitutional provisions requiring substantive due process.

(3) That the ordinances deprived Consolidated of equal protection of the laws in violation of both the Tennessee and United States Constitutions.

(4) That the ordinances constituted an unconstitutional taking of Consolidated's interest in the property.

The trial court decided the issues on the parties' cross motions for summary judgment, disposing of the issues as matters of law. The trial court held that the ordinances did not constitute exclusionary zoning and that Consolidated did not have standing to bring a takings claim. However, the court found the ordinances facially unconstitutional as violative of due process and equal protection. The court found Consolidated was entitled to declaratory judgment on those issues, but was not entitled to an injunction or damages. Both parties have appealed parts the trial court's judgment as well as subsequent actions by the trial court that will be discussed later in this opinion.1


In late 1999, Consolidated obtained an option to purchase 138.6 acres in Davidson County and signed a lease on the property on February 3, 2000. Consolidated intended to build a C&D landfill on the property and had investigated potential sites of over 100 acres that were located in zoning districts where such use was permitted as a matter of right. Consolidated concluded that the property at issue was the only appropriate site in Davidson County. At the time of the option, the property was located in an Industrial Restricted ("IR") zoning district, meaning that C&D landfills were a permitted use without the requirement of a special exception or variance. The lease, which was for the period that Consolidated retained the right to purchase the land, authorized preparatory work for the construction of the C&D landfill.

On December 29, 1999, Consolidated applied to the Tennessee Department of Environment and Conservation for a solid waste disposal facility permit, and the permit for construction of a C&D landfill was issued on December 13, 2000.

The first of the two ordinances at issue herein, Bill No. BL 99-86, was introduced on November 16, 1999. It prohibited the location of a C&D landfill within three (3) miles of a school or park; however, it only applied in those zoning districts where a C&D landfill was permitted as a special exception or with certain conditions.

Because the bill was an amendment to the zoning ordinance, it was referred to the Metropolitan Planning Commission. The Commission staff recommended disapproval of the 3-mile buffering provision because its limited application to only certain zoning districts would result in anomalous situations, because the buffering requirement did not apply to other types of landfills, and because there was no basis for establishing the proposed three mile standard. The Commission voted to recommend disapproval of the bill because there was no supportable basis for choosing three miles as the buffer. The Commission stated more research was needed to determine what distance, if any, would be appropriate and also to determine whether such a buffer or restriction should apply to other types of landfills. The Council amended the first bill to make the buffering requirement two miles instead of three. The Planning Commission recommended disapproval again.

On its own, the first ordinance would not have affected the property at issue because even though it was less than two miles from a park, it was located in a zoning district where C&D landfills were permitted by right. The second ordinance, BL 2000-171, was introduced on February 1, 2000. It did two things: (1) made C&D landfills permissible in IR and IG zoning districts only as a PC use, or with certain conditions, and (2) extended the two-mile buffering requirement established in the first bill to all C&D landfills.

The Metropolitan Planning Commission recommended disapproval of both the amended first ordinance and the second ordinance because there was no planning basis to support any increased separation between landfills and other non-residential uses and no planning basis to support further restriction of C&D landfills in the IR and IG zoning districts.

Both ordinances passed in the Council on March 21, 2000 and were signed by the Mayor on March 27, 2000. In October of 2000, the Metro Department of Codes Administration notified Consolidated that it would be unable to obtain a permit for construction of the C&D landfill because the property was located within two miles of a park. That letter also said that the proposed landfill met every other requirement of applicable provisions of the zoning code and listed those requirements.


The different requirements for different types of challenges to a zoning ordinance are the subject of many of the arguments herein. Traditionally, ordinances regulating the private use of land have been subject to legal challenges by any or all of several types of claims alleging violations of Constitutional provisions. A number of courts have attempted, at various times, to categorize the types of available claims. See Pearson v. City of Grand Blanc, 961 F.2d 1211 (6th Cir. 1992) (discussing various types of "federal zoning claims"); Restigouche, Inc. v. Town of Jupiter, 59 F.3d 1208, 1211 n. 1 (11th Cir. 1995); Eide v. Sarasota County, 908 F.2d 716, 720-22 (11th Cir. 1990), cert. denied, 498 U.S. 1120, 111 S.Ct. 1073 (1991). These have generally included challenges based on the Takings Clause and challenges based on substantive due process and equal protection grounds, sometimes with subclassifications such as due process taking. Of course, a zoning ordinance is subject to challenge on its face or on the effect of the ordinance as applied. We think the Eleventh Circuit's more recent description of the types of constitutional claims available to contest a land use regulation, whether an ordinance or an administrative decision, is consistent with the development of the law. In Villas of Lake Jackson, Ltd. v. Leon County, 121 F.3d 610, (11th Cir. 1997), that court stated:

Any constitutional right based upon a zoning regulation governing a specific use of real property, to the extent the claim is based upon the deprivation of the right to use the property itself for that specific purpose, is protectable, if it is a right for which the Constitution gives protection at all, by only these causes of action:

1. A procedural due process claim challenging the procedures by which the regulation was adopted;

2. A substantive due process claim based upon the arbitrary and capricious action of the government in adopting the regulation;

3. A Takings Clause claim which may seek not only just compensation, if the regulation amounts to a taking, but may seek invalidation and injunctive relief if the regulation exceeds what the government body may do under the Takings Clause of the Constitution;

4. Claims under some other constitutional provision that give the landowner a protectable right, not specifically involved with the real property right itself, . . . [e.g.,] a claim alleging a violation of the Equal Protection Clause...

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