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Precision Homes, Inc. v. The Metropolitan Government of Nashville

Court of Appeals of Tennessee, Nashville

June 6, 2019


          Session April 4, 2019

          Appeal from the Chancery Court for Davidson County No. 17-467-I Claudia Bonnyman, Chancellor

         The 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.

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

          Shawn Ray Henry, Nashville, Tennessee, for the appellant, Precision Homes, Inc.

          Lora Barkenbus Fox and Catherine Jane Pham, Nashville, Tennessee, for the appellee, Metropolitan Government of Nashville and Davidson County.

          Andy D. Bennett, J., delivered the opinion of the Court, in which Richard H. Dinkins and W. Neal McBrayer, JJ., joined.



         Factual and Procedural Background

         In 1999, the Metropolitan Government of Nashville and Davidson County ("Metro") instituted stormwater regulations that created water quality buffers.[1] 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 2010 flood.

         On 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."

         The 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.

         Precision 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."

         On 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 Justice Act.

         Standard of Review

         As this 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).

         The 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)).


         I. Legal standards for variance request under Metro stormwater regulations.

         We 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 considerations:

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 damage.
c. The susceptibility of the proposed facility and its contents to flood damage and the effect of such damage on the individual owner.
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 anticipated development.
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 Greenways Commission.
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[ ...

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