PRECISION HOMES, INC.
THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY
Session April 4, 2019
from the Chancery Court for Davidson County No. 17-467-I
Claudia Bonnyman, Chancellor
owner of three lots located in a water quality buffer zone
along the Cumberland River filed a request for a variance to
allow the owner to build a small house on each lot. The
Metropolitan Stormwater Management Committee denied the
request for a variance, and the chancery court affirmed the
committee's denial. We affirm the trial court's
judgment in all respects.
R. App. 3 Appeal as of Right; Judgment of the Chancery Court
Ray Henry, Nashville, Tennessee, for the appellant, Precision
Barkenbus Fox and Catherine Jane Pham, Nashville, Tennessee,
for the appellee, Metropolitan Government of Nashville and
D. Bennett, J., delivered the opinion of the Court, in which
Richard H. Dinkins and W. Neal McBrayer, JJ., joined.
D. BENNETT, JUDGE
and Procedural Background
1999, the Metropolitan Government of Nashville and Davidson
County ("Metro") instituted stormwater regulations
that created water quality buffers. Precision Homes, Inc.
("Precision") owns three vacant lots on Miami
Avenue along the Cumberland River and entirely within the
Zone 1 water quality buffer. This water quality buffer
includes the floodway for the Cumberland River plus an
additional 50 feet. Metro Stormwater Mgmt. ("SWM")
Regs. § 6.9.2. Zone 1 is a "'no disturb
zone,' where the vegetation cannot be disturbed, removed
or replanted unless a buffer restoration plan has been
approved" by the Metro Department of Water and Sewerage
Services. Id. Construction is not permitted in Zone
1 without a variance. SWM Regs. § 6.9.3. The three lots,
purchased by Precision in 2004, were inundated during the May
November 2, 2016, Precision submitted a request for a
variance from the stormwater regulations to the Stormwater
Management Committee ("SWMC" or "the
Committee") so that it could build an 800-square-foot
one-bedroom house on each lot. In its statement of hardship,
Precision stated: "This lot is 100% within the floodway
or the zone 1 Stream Buffer and therefore the lot cannot be
utilized without the requested variance."
SWMC first met about Precision's variance request at a
public hearing on December 1, 2016. The Committee voted to
defer the matter to allow SWMC staff to evaluate possible
options for purchase of the properties or a land swap. At the
SWMC's next meeting, on January 5, 2017, the staff
reported that there was no money available to purchase the
lots and no possibility of a land swap. The Committee
considered a motion to approve Precision's variance
request, and the motion failed by a vote of four to two. On
March 2, 2017, the SWMC considered a request filed by
Precision that the Committee rehear its variance case. The
SWMC voted to rehear the case. At its April 6, 2017 meeting,
the SWMC reheard the variance request, and a motion to
approve the variance failed by a vote of three to three.
filed a petition for writ of certiorari in the chancery court
and, in an order entered on June 27, 2018, the court affirmed
the decision of the SWMC. The court found that the
"Committee's decision was based on substantial and
material evidence and was not arbitrary and capricious."
appeal, Precision presents a number of arguments to support
its position that the trial court erred in affirming the
decision of the SWMC, including challenges to the reasoning
applied by various board members. Metro asserts that the
trial court correctly determined that there was substantial
and material evidence to support the Committee's decision
to deny the variance. Precision also argues that it is
entitled to its attorney fees under the Equal Access to
court has stated, "the only issue raised by a writ of
common law certiorari is whether the Board exceeded its
jurisdiction or acted illegally, arbitrarily, or
fraudulently." Hoover, Inc. v. Metro Bd. of Zoning
Appeals, 924 S.W.2d 900, 904 (Tenn. Ct. App. 1996).
Review by a court under the common law writ of certiorari is
limited to a determination of whether the municipal agency
acted illegally, arbitrarily, fraudulently, or in excess of
its jurisdiction. McCallen v. City of Memphis, 786
S.W.2d 633, 638 (Tenn. 1990). In doing so, the court
determines "whether there is any material evidence that
supports the action of the administrative agency."
Laidlaw Envtl. Servs. of Nashville, Inc. v. Metro. Bd. of
Health for Nashville & Davidson Cnty., 934 S.W.2d
40, 49 (Tenn. Ct. App. 1996). Under the common law writ,
"courts may not (1) inquire into the intrinsic
correctness of the lower tribunal's decision, (2) reweigh
the evidence, or (3) substitute their judgment for that of
the lower tribunal." State ex rel. Moore &
Assocs., Inc. v. West, 246 S.W.3d 569, 574 (Tenn. Ct.
App. 2005) (citations omitted).
issue of "[w]hether or not there is any material
evidence to support the action of the agency is a question of
law to be decided by the reviewing court upon an examination
of the evidence introduced before the agency."
Massey v. Shelby Cnty. Ret. Bd., 813 S.W.2d 462, 465
(Tenn. Ct. App. 1991) (citing Hoover Motor Express Co. v.
R.R. & Pub. Utils. Comm'n, 261 S.W.2d 233, 239
(Tenn. 1953)). With respect to conclusions of fact, Judge
Cantrell described the proper analysis for a reviewing court:
"'The function of the reviewing court is limited to
asking whether there was in the record before the
fact-finding body any evidence of a material or
substantial nature from which that body could have,
by reasoning from that evidence, arrived at the
conclusion of fact which is being reviewed.'"
Id. (quoting B. Cantrell, Review of
Administrative Decisions by Writ of Certiorari in
Tennessee, 4 Mem. St. U. L. Rev. 19, 29-30 (1973)).
Legal standards for variance request under Metro
begin with a discussion of the legal standards applicable to
the SWMC's decision regarding Precision's variance
request. Metro's stormwater management regulations
provide the following standards for granting a variance:
a. Variances shall only be issued upon a determination that
the variance is the minimum necessary, considering the flood
hazard, to afford relief; and in the instance of a historical
building, a determination that the variance is the minimum
necessary so as not to destroy the historic character and
design of the building.
b. Variances shall only be issued upon (i) a showing of good
and sufficient cause, (ii) a determination that failure to
grant the variance would result in exceptional hardship, and
(iii) a determination that the granting of a variance will
not result in increased flood heights, additional threats to
public safety or extraordinary public expense; create
nuisance; cause fraud on or victimization of the public; or
conflict with existing local laws or ordinances.
SWM Reg. § F1.1.2(4). The regulations further state that
the SWMC "shall consider all technical evaluations, all
relevant factors, all standards specified in others sections
of these regulations," and the following list of
a. The danger that materials may be swept by floodwaters or
streams onto other lands to the injury of others.
b. The danger to life and property due to flooding or erosion
c. The susceptibility of the proposed facility and its
contents to flood damage and the effect of such damage on the
d. The importance of the services provided by the proposed
facility to the community.
e. The necessity of the facility to a waterfront location, in
the case of a functionally dependent facility.
f. The availability of alternative locations, not subject to
flooding or erosion damage, for the proposed use.
g. The compatibility of the proposed use with existing and
h. The relationship of the proposed use to the comprehensive
plan and master drainage plans for that area.
i. The safety of access to the property in times of flood for
ordinary and emergency vehicles.
j. The expected heights, velocity, duration, rate of rise,
and sediment transport of the floodwaters and the effects of
wave action, if applicable, expected at the site.
k. The costs of providing governmental services during and
after flood conditions including maintenance and repair of
public utilities and facilities such as sewer, gas,
electrical, and water systems, and streets and bridges.
l. The following evaluation criteria will apply to appeals
involving modification of the buffer.
i. Modifications to the buffer area shall be the minimum
necessary to achieve a reasonable buildable area, as decided
by the Committee. Other requirements for building in the
floodway shall still apply.
ii. Where possible, an area equal to the encroached area or
equivalent stormwater management practices shall be
established elsewhere on the lot or parcel in a way to
maximize, or provide equivalent, storm water quality
enhancement and protection.
iii. Variances for reducing the no-disturbance buffer require
a written recommendation, positive or negative, from the
iv. Redevelopment, as defined in Appendix B of this volume,
within intensely developed areas may be exempt from all or a
portion of the requirements of this subsection, provided
feasible alternatives or BMPs[ ...