NAN E. SCOTT, ET. AL.
THE CITY OF KNOXVILLE, ET. AL.
Session Date: April 13, 2015
Appeal from the Chancery Court for Knox County No. 1827332 Hon. Michael W. Moyers, Chancellor
Wendell K. Hall, Knoxville, Tennessee, for the appellants, Nan E. Scott, Bonnie H. Peters, Edwin M. Scott, Jr., Sandra K. Simpson, Robert A. Davis, Carol B. Davis, Charlotte M. Davis, Jamie S. Rowe, B. Catherine Freels, Penelope L. Berridge, Fred R. Arrington, III, Janet C. MacFarlane, Leslie A. Feulner, Randall J. Kurth, and Kent W. Nicholson.
Crista M. Cuccaro, Knoxville, Tennessee, for the appellee, the City of Knoxville. Robert B. Frost, Jr., Knoxville, Tennessee, for the appellee, the City Council of Knoxville.
Arthur G. Seymour, Jr. and Benjamin C. Mullins, Knoxville, Tennessee, for the appellee, Evergreen Services of Tennessee, LLC d/b/a Gentry-Griffey Funeral Home.
John W. McClarty, J., delivered the opinion of the Court, in which D. Michael Swiney and Thomas R. Frierson, II, JJ., joined.
JOHN W. McCLARTY, JUDGE
In July 2010, Evergreen Services of Tennessee, LLC d/b/a Gentry-Griffey Funeral Home ("Gentry-Griffey") began the process of applying for a building permit to add a crematory to its existing funeral home in Fountain City, Tennessee. Gentry-Griffey is located in an O-1 zone, an area that is designated for professional and business offices and related activities. On August 23, 2011, the City of Knoxville Building Inspections and Plans Review Department ("the City") issued the requested permit to Gentry-Griffey to construct the crematory as an accessory use of the funeral home establishment.
In December 2011, several Fountain City residents ("Petitioners") appealed the issuance of the permit to the City's Board of Zoning Appeals ("BZA"). The BZA voted unanimously to deny the appeal. Petitioners then appealed to the Knoxville City Council ("the City Council") pursuant to Article VII, Section 6 of the Knoxville Zoning Code ("the Code"), which provides,
Any person, firm or corporation aggrieved by any decision of the metropolitan planning commission or the board of zoning appeals may petition the city council to consider the same.
The city council shall consider de novo in public hearing and may affirm, modify, impose restrictions as provided in article VII, section 5 or overrule the action of the planning commission or board of zoning appeals.
Petitioners stated their reason for the appeal as follows:
Determination was arbitrary and capricious as evidenced by area funeral homes who had previously applied and were denied, and conversations with a City employee; references from the Zoning Ordinance of Knoxville show the determination was arbitrary and capricious including but not limited to, Article II Definitions "accessory use, " Article IV Section 2.2.1; Article IV Section 2.3.2 and 2.3.3; Article V Section 1 Performance Standards B.2, 3 and 4; and Article VII Administration and Enforcement Section 1.C.a and other reports regarding cremation.
A hearing was held at the monthly meeting on February 21, 2012. The City Council entertained presentations with accompanying exhibits from several speakers on both sides of the issue. The City Council even extended the time limitations to allow adequate argument. Jamie Rowe, a Fountain City resident, feared that the crematory would become the principal use of the business. She noted that Gentry-Griffey performed 70 funerals last year but that the permit allowed the cremation chamber to operate for 16 hours a day, 7 days a week, thereby permitting 1, 400 cremations per year. She was also concerned that the cremation chamber would affect the air quality and omit smoke and odor as evidenced by the Blount County crematory that emitted visible smoke and an unpleasant odor. She asserted that the proposed crematory would emit mercury at a rate of four grams of vaporized mercury per cremation.
Nan Scott, M.D., a Fountain City resident, argued that the construction of a crematory did not qualify as an accessory use of the existing funeral home when Gentry-Griffey was adding the crematory to increase business and expected to advertise its crematory services to the surrounding areas. She claimed that an I-4 zone was the only zoning classification that permitted the use of a crematory as evidenced by several other businesses that had requested to construct crematories and were not granted permits. She stated that the use of a cremation chamber in an I-3 zone was even expressly prohibited. She claimed that the approval of a crematory "in an O-1 zone was arbitrary and capricious, " that the building inspector made an "arbitrary and capricious decision, " and that the administrative decision was "arbitrary and capricious."
Catherine Freels, a Fountain City resident, argued that "the City did not conduct a proper review" in determining whether the requested use was permitted and that the City also failed to document how it came to the decision "to allow the crematory in an O-1 zone." She claimed that the review made by the City was "seriously flawed and [did] not support the City's determination." Ms. Freels stated that the "City's action or inaction resulted in an arbitrary and capricious decision unsupported by the evidence."
Arthur Seymour, who spoke on behalf of Gentry-Griffey, stated that the City Council was tasked with "sitting in judgment of whether or not this building permit was properly issued." He argued that the City's decision to issue the permit was proper as an accessory use of the existing funeral home. He noted that the Tennessee Court of Appeals has held that funeral homes and crematories are not viewed as separate industries but are viewed as "complimentary services offered by the funeral industry." He further claimed that since the issuance of the initial permit, Gentry-Griffey had acquired a vested right to operate the crematory as evidenced by the substantial expenditures made to construct the crematory in reliance upon the permit. He stated that the City had also issued a certificate of occupancy after performing several inspections of the completed addition. He noted that the air quality permit had not yet been issued but that any emissions would be regulated by the Knox County Department of Air Quality Management.
In rebuttal, Ms. Freels stated that the permit was issued based upon claims that the crematory would be an accessory use but that the residents were concerned that the crematory would eventually become the primary use of the funeral home. Relative to vested rights, she argued that Gentry-Griffey obtained the certificate of occupancy while the appeal was underway. She claimed that Gentry-Griffey continued to fund the construction even though it had knowledge that the residents intended to appeal the issuance of the permit as early as November 2011. She related that despite claims to the contrary, Gentry-Griffey bought a used cremation chamber that cost approximately $36, 000 and had also built two handicapped bathrooms, a kitchen, a viewing area and other improvements that were unrelated to the crematory.
Following arguments, the City Council engaged in deliberations. Councilman Nick Della Volpe expressed concern that the issuance of the permit was "handled like a routine matter with no consultation." He related that the existing funeral establishment was perfectly acceptable for an O-1 zone in the city when the facilities were used as a place to allow the residents to grieve and share love and condolences for friends and family. He related that prior to the issuance of the permit, those electing cremation services were sent to an industrial park in Rockford, Tennessee, where the cremation was performed at a facility that was tasked with performing cremations. He related that the crematory was not subordinate to the principal use of the establishment and did not contribute to the comfort, convenience or necessity of users who relied upon the principal use when Gentry-Griffey was advertising its cremation services to other counties. Relative to whether Gentry-Griffey had obtained a vested right to operate the crematory, he asserted that Gentry-Griffey spent approximately $30, 000 prior to the issuance of the permit and another $36, 799 following the issuance of the permit. He related that Gentry-Griffey continued to fund its efforts even after it was aware that the residents of Fountain City objected to the issuance of the permit. He noted that the residents learned of the addition in October 2011, held a meeting in November 2011, and then appealed the issuance of the permit in December 2011.
At the request of the City Council, Anita Cash, the Zoning Coordinator for the City, spoke on behalf of the City. She explained that Gentry-Griffey had not requested a free-standing crematory but simply desired to add a crematory for its patrons. She related that she and other members of the office researched the issue and determined that the crematory was an appropriate accessory use of the principal business. She asserted that she was never asked for documentation concerning the decision-making process.
Councilman Mark Campen stated that he believed the City erred in issuing the permit and that the BZA erred in denying the appeal. He believed the issue should have been looked at closer. He expressed concern regarding the emissions and stated that an O-1 zone was a "very poor place for this kind of facility." He related that the increased operating hours also caused concern. He opined that the City Council would be forced to approve other businesses that ...