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Neighbors of Old Hickory v. Metropolitan Government of Nashville and Davidson County

Court of Appeals of Tennessee, Nashville

October 25, 2017

NEIGHBORS OF OLD HICKORY, ET AL.
v.
METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, ET AL.

          Session August 23, 2017

         Appeal from the Chancery Court for Davidson County No. 16-301-IV Robert E. Lee Davies, Senior Judge

         This is a declaratory judgment action in which the plaintiff property owners sought a finding that the defendant's right to operate a rock quarry had not vested prior to the adoption of BL2015-13, which prohibits such activity on the property in question. All parties then moved for summary judgment as relevant to their respective positions. The trial court granted summary judgment in the defendant's favor, finding that the quarry qualified as a pre-existing nonconforming use. We affirm.

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

          Jason D. Holleman and Cleveland D. Bain, Nashville, Tennessee, for the appellants, Neighbors of Old Hickory, comprised of Jim Jester, Joe and Cheryl Coffey, Cory Sharp, James Sharp, Jeremy Spickard, and Anna Alexander.

          Jon Cooper and J. Brooks Fox, Nashville, Tennessee, for the appellee, the Metropolitan Government of Nashville and Davidson County.

          Thomas V. White and George A. Dean, Nashville, Tennessee, for the appellee, Industrial Land Developers, LLC.

          John W. McClarty, J., delivered the opinion of the Court, in which D. Michael Swiney, C.J. and Frank G. Clement, Jr., P.J., M.S., joined.

          OPINION

          JOHN W. McCLARTY, JUDGE

         I. BACKGROUND

         In 2014, Industrial Land Developers, LLC ("Defendant") purchased a 155 acre tract of land in Old Hickory, Tennessee with the intention of using the property as a rock quarry with asphalt and concrete batching plants. The property is zoned Industrial General ("IG"), which permits the most intensive industrial, manufacturing, and extractive uses in Davidson County. On December 4, 2014, Defendant wrote to William B. Herbert IV, the Metropolitan ("Metro") Zoning Administrator for Davidson County, requesting approval for the use of the property for mineral extraction with accessory uses, including rock crushing, screening, storage of explosive, concrete patching, and asphalt/cement mixing plants with an attached site plan setting forth Phases 1 and 2 of the project. Six days later, on December 10, Defendant's counsel wrote Mr. Herbert requesting issuance of a zoning permit and a certificate of zoning compliance. Counsel attached the final plans for the project, which established that Phase 1 included construction of the concrete batching and cement mixing plants, while Phase 2 included the construction of the quarry itself. The letter provided, in pertinent part, as follows:

This letter is to request the issuance of a zoning permit and a certificate of zoning compliance . . . for the property . . . for use as mineral extraction, including accessory rock crushing, screening, storage of explosives, and in addition concrete batching and asphalt/cement mixing plants. This application is made pursuant to [Metro Code] §§ 17.40.520 & 17.40.530 (see attached). The property is zoned IG.
Included herewith are our final development plans (site plan) for both Phase 1 and Phase 2 of the project. Phase 1 includes the accessory concrete batching and asphalt/cement mixing plants, and Phase 2 is the site of the quarry itself. Those plans are stamped by our engineer to indicate compliance with all Metro engineering requirements, and also included is a letter from our engineer confirming the same.

         Five days later, on December 15, Mr. Herbert issued a certificate of zoning compliance pursuant to the Metro code and further advised as follows:

The department is herewith issuing . . . a certificate of zoning compliance pursuant to [Metro Code] §§ 17.40.010 C & 17.40.520. My initial review seems to indicate that although a few other Metro departments will need to approve this use, those approvals should not be problematic. [You] may begin immediately to use the property for mineral extraction upon approval of the other departments and issuance of the use permit. The operation of the quarry itself will not require the obtaining of any further Metro permit. Remember however that you must obtain a building permit for the construction of the facilities shown on Phase 1 of the Final Development Plan before actually beginning construction on that phase.
The property is classified as IG (general industrial) which allows the most intense use of land within the jurisdiction of the Metropolitan Government. This letter will also confirm that accessory uses typically associated with mineral extraction activities are also permitted at this location, including but not limited to, rock crushing, screening, storage of explosives, concrete batching and asphalt/cement mixing plants. These uses are permitted by right on this property under the heavy manufacturing use classification.

         On February 11, 2015, Defendant filed an application with the Metro Department of Codes for a building permit for the construction of office and utility buildings. On April 24, they obtained the requested building permit from the Zoning Administrator to construct a 1, 307 square foot office building and a utility building on the proposed site. Less than a month later, on May 15, the footings for the buildings were completed. On June 10, Defendant submitted an application for a "use and occupancy permit for new quarry" for the buildings. The same day, Defendant submitted an application for a National Pollution Discharge Elimination System ("NPDES") permit and certification approval with the Tennessee Department of Environment and Conservation. On June 29, the framing for the buildings was completed. A use and occupancy permit was issued for the quarry on August 7.

         Thereafter, a hearing was held with regard to the operation of the quarry on August 10. Cory Sharp and Tim Jester, landowners with homes adjacent to the proposed quarry, appeared at the hearing and spoke in opposition. A temporary use and occupancy permit was issued for the buildings on the property on October 22.

         At some point, Mr. Sharp and Mr. Jester, along with several other landowners, organized and formed Neighbors of Old Hickory (collectively "Plaintiffs") in an attempt to thwart Defendant's use of the property as a quarry. Plaintiffs sought assistance from Larry Hagar, their elected Metro Councilman. On November 20, with the support of Councilman Hagar, the Metropolitan Government of Nashville and Davidson County ("Metro Government") adopted ...


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