Western Express, Inc. v. Metropolitan Government of Nashville and Davidson County, No. M2005-00353-COA-R3-CV (Tenn. App. 7/11/2007), M2005-00353-COA-R3-CV.
| Decision Date | 11 July 2007 |
| Docket Number | No. M2005-00353-COA-R3-CV.,M2005-00353-COA-R3-CV. |
| Parties | WESTERN EXPRESS, INC. v. METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY |
| Court | Tennessee Court of Appeals |
Appeal from the Chancery Court for Davidson County; No. 03-3522-II; Carol L. McCoy, Chancellor.
Judgment of the Chancery Court Affirmed in Part, Vacated in Part, and Remanded.
J. Brooks Fox and John Kennedy, Nashville, Tennessee, for the appellant, Metropolitan Government of Nashville and Davidson County, by the Board of Zoning Appeals.
John P. Williams and Thomas V. White, Nashville, Tennessee, for the appellee, Western Express, Inc.
OPINION
This appeal involves a dispute regarding the application of the tree density requirements in Nashville's zoning code to an interstate trucking company's new facility. After the city refused to issue a use and occupancy permit for the facility because it did not comply with the tree density requirements, the company requested the Metropolitan Board of Zoning Appeals to find that the city should not have included the paved areas of its facility in its tree density calculations and to grant a variance for the remainder of the property. The Board declined to issue the permit or to grant a variance based on its belief that the company could satisfy the tree density requirements by making a one-time payment to the city's "tree bank" instead of planting additional trees at the site. The company filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County. The trial court directed the Board to grant the variance after finding that the tree density requirements did not apply to the facility because the company had not removed existing trees from the site during construction and because the city had failed to properly establish a fee schedule for the tree bank. The city appealed. We have determined that the tree density requirements apply to all new developments regardless of whether trees were removed from the construction site. However, we have also determined that the city erred by including the paved area of the facility in its tree density calculations. In addition, we have determined that the Board's denial of the requested variance was arbitrary because it was based on its mistaken belief that the option of paying into the tree bank rather than planting new trees was available to the company. Finally, we have determined that the trial court erred by directing the Board to issue the variance rather than remanding the case to the Board for further proceedings.
In 2001, Western Express, Inc., a Tennessee corporation in the interstate trucking business, built a 28,000-square-foot headquarters building and two large maintenance and storage buildings at a 48-acre site in the Cockrill Bend Industrial Park in Davidson County. The company also paved thirty acres of land for tractor-trailer staging, loading, and parking areas. Prior to construction, the property essentially consisted of a large hill of limestone rock containing only scrub vegetation. Extensive blasting was necessary to prepare the site for development. The blasting lowered the elevation of the site by as much as sixty feet in some places, and the company used the voluminous shot rock created by the blasting as fill at the site.
Nashville's zoning code1 contains provisions to protect the trees growing in Davidson County. Among other things, it requires persons constructing new commercial developments to achieve a specific average tree density per acre on their property. Western Express's new facility did not meet these tree density requirements. However, Nashville's urban forester reviewed the project and determined that it would not be feasible to plant the additional trees on the property because Western Express needed the thirty acres of unobstructed paved property to maneuver its trucks and because newly planted trees would not grow well in the compacted limestone shot rock.
As an alternative to planting additional trees on the perimeter of the property, the urban forester informed Western Express that it could satisfy its tree preservation obligations by paying $191,450 into Nashville's tree bank.2 Western Express took issue with this decision on two grounds. First, it asserted that the urban forester could not require payments to the tree bank because the Metropolitan Council had not approved his fee schedule. Second, it took issue with the urban forester's calculation of the fee based on the entire 48-acre tract rather than only on the portions of the tract that were not exempt from the interior planting requirements. When Western Express declined to pay $191,450 into the tree bank, the zoning administrator declined to issue a use and occupancy permit for the headquarters building.
Western Express made three arguments when it appealed to the Board of Zoning Appeals. First, it asserted that the express exemption from the interior planting requirements in Metro. Code § 17.24.050(E) should also be deemed to be an implied exemption from the average tree density requirements. Second, it contended that it was entitled to a variance from the perimeter planting requirements because of the rocky conditions at the site. Third, it questioned the urban forester's authority to require a $191,450 payment in lieu of planting additional trees because the Metropolitan Council had not approved the fee schedule being used by the urban forester.3
There were few factual disputes at the hearing before the Board on September 18, 2003. The urban forester testified that the project lacked 547 tree density units based on the entire 48-acre tract. He also testified that it would not be feasible to plant additional trees at the facility because Western Express needed the thirty acres of unimpeded paved property for the staging, maneuvering, and parking of its trucks and because trees would not grow well in limestone shot rock. Because of these practical constraints, the urban forester informed the Board that he had decided to permit Western Express to pay $191,450 into the city's tree bank in lieu of planting the additional trees.4
Western Express did not take significant issue with the urban forester's calculations based on its entire 48-acre site. However, it insisted that the thirty acres of paved property that were exempt from internal planting requirements should have been excluded from the calculation of the tree density units required for the site. Western Express also presented evidence that it had planted 134 new trees and that, according to its calculations, it was only deficient fifty-three tree density units if the thirty acres of paved property were not included in the calculation.
The Metropolitan Government argued to the Board that granting Western Express a variance was unwarranted because its hardship was self-imposed and because the payment of $191,450 into the tree bank would obviate the necessity of planting additional trees. Western Express countered that ninety percent of its property should have been exempted from the tree density requirement, and it asserted that it was entitled to a variance for the remainder because of the harsh terrain. Western Express also disputed the Metropolitan Government's claim that it could satisfy the tree density requirement by making a one-time payment into the tree bank because the Metropolitan Council had never approved a fee schedule for it as expressly required by the tree density ordinance.
A majority of the Board concluded that Western Express was not entitled to a variance because it could satisfy the tree density requirement by making a one-time payment into the tree bank and because the Board was not authorized to grant a variance where financial gain is the sole basis for the request.5 The Board also upheld the denial of the use and occupancy permit for the headquarters building. The Board's October 7, 2003 order denying the variance stated tersely that Western Express "HAS NOT satisfied all of the standards for a variance under Section 17.40.370 of the Metropolitan Code, due to the lack of hardship." The order did not contain substantive findings of fact supporting its conclusion that there was no hardship to Western Express, nor did it refer in any way to the putative tree bank alternative that formed the very basis for its decision.6
On November 26, 2003, Western Express filed a petition for common-law writ of certiorari in the Chancery Court for Davidson County. The Metropolitan Government conceded for the first time in its response that the option of paying into the tree bank was not available to Western Express because the Metropolitan Council had not adopted a fee schedule for these payments. Nonetheless, the Metropolitan Government urged the trial court to uphold the Board's denial of the variance on the ground that any hardship to Western Express was self-imposed. Following a hearing, the trial court entered an October 7, 2004 order and a January 6, 2005 revised order concluding (1) that the tree density requirement does not apply to the project because Western Express did not remove any trees from the site, (2) that ninety percent of the property was exempt from the tree density requirement, and (3) that the Board's decision denying Western Express a variance with respect to the remainder of its property was arbitrary and capricious because it was based on a tree bank alternative that did not exist. The trial court ordered the Board to issue Western Express the requested variance within thirty days of the entry of its order. The Metropolitan Government has appealed.
The proper vehicle for seeking judicial review of a decision by a board of zoning appeals is a petition for common-law writ of certiorari. McCallen...
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