FAMILY GOLF OF NASHVILLE,        )    IN THE CHANCERY COURT
INC.                             )
                                 )    FOR THE STATE OF TENNESSEE
                                 )
VS. NO. 95-3832-I                )    20TH JUDICIAL DISTRICT
                                 )
                                 )    DAVIDSON COUNTY
METROPOLITAN GOVERNMENT          )
OF NASHVILLE AND DAVIDSON        )    PART ONE
COUNTY                           )

MEMORANDUM

The petitioner, Family Golf of Nashville, Inc., seeks a declaration that Ordinance 94-1222 adopted by the Metropolitan Council, which purported to change the zoning of petitioner's property from AR2a (agricultural-residential) District to CS (commercial service) District, is valid and enforceable. By order of the Court, the Tennessee Chapter of American Planning Association (TAPA) was granted permission to file a friend of the court brief. The TAPA urges the Court to declare that zoning decisions adopted by the Metropolitan Government must be consistent with the Comprehensive Plan (General Plan) and if the zoning decisions are inconsistent then they are illegal. The Court finds that Metropolitan Council Ordinance No. 94-1222 is void and of no effect for reasons hereinafter stated.

Findings of Fact

The parties have stipulated to the following material facts:

Petitioner is the lessee of a parcel of land located at the intersection of Bell Road and Blue Hole Road in Nashville. The property is shown on Exhibit A to the Petition. Petitioner operates a golf driving range, miniature golf course and batting cage on the property under the name Family Golf Center. Petitioner wanted to add to its operations a go kart course and arcade. Such activity would require a change in zoning from AR2a District to CS District. Petitioner filed an application for such rezoning. At its meeting on August 25, 1994, the Metropolitan Planning Commission disapproved the proposed zone change because it found the same to be contrary to the General Plan. On November 15, 1994, the metropolitan Council adopted Ordinance 94-1222 which purported to change the zoning of the property to CS District. The Metropolitan Planning Commission has refused to amend the official zoning map to reflect the purported change effected by Ordinance 94-1222. Petitioner filed this Petition for Declaratory Judgment challenging the Metropolitan Planning Commission position that any rezoning ordinance which it finds to be contrary to the General Plan is of no force and effect.

Issue

Whether the zoning ordinance amendments must comply with the General Plan adopted by the Planning Commission.

Conclusions of Law

Petitioner argues that zoning ordinance amendments are not required to be enacted on the basis of the General Plan adopted by the Planning Commission.

The respondent Metropolitan Government and the Tennessee Chapter of the American Planning Association, in its friend of the Court brief, argue that zoning decisions of the Metropolitan Council to be valid, must be consistent with the General Plan adopted by the Planning Commission.

The Planning Commission disapproved the requested zone change because such change, if granted, would violate the General Plan in the following respects: (a) the medium density residential land use policy prescribed for this area by the adopted Subarea 12 Plan; (b) confinement of commercial activities to clearly defined boundaries of commercial centers and; (c) protection of flood plains by application of zoning that permits low impact uses. (Exhibits Nos. 5 and 8)

The AR2a and CS Districts are described in the Metropolitan Code as follows:

17.20.020 Purpose of residential districts - AR2a districts.

These districts are designed to provide suitable areas for the growing of crops, animal husbandry, dairying, forestry and other similar activities which generally occur and characterize rural rather than urban areas. These districts are designed, furthermore, to provide for very low-density residential development generally on unsubdivided tracts of land whereon public sanitary sewer service and public water supply is least practical. These districts also include community facilities, public utilities, and open uses which serve specifically the residents of these districts or which are benefitted by an open residential environment without creating objectionable or undesirable influences upon residential developments or influences which are incompatible with a rural environment. Further, it is the intent of this title that these districts be located and developed so that urban expansion of the metropolitan area will be facilitated. (Prior code Appx. A §§ 21.10, 21.11)

17.56.080 CS - Commercial service districts.

These districts are designed to provide for a wide range of commercial uses concerned with retail trade and consumer services; amusement and entertainment establishments; drive-in stores, eating places and financial institutions; and offices. The uses in these districts service a wide market area and, therefore, ease of automotive access is a requisite. However, it is not intended that these districts permit uses which generate large volumes of truck traffic. Bulk regulations are designed to control building volumes such that compatibility with vicinity residential uses is promoted, while maintaining maximum flexibility in commercial activities. Appropriate open space between commercial and residential areas is required unless appropriate design features are accomplished under the planned unit development procedures for this district. (Prior code Appx. A § 31.17)

Sec. 18.02 Enactment, revisions, modification or changes of zoning regulations.

Zoning regulations shall be enacted by the council only on the basis of a comprehensive plan prepared by the metropolitan planning commission in accordance with the applicable state laws and as provided in section 3.05 of this Charter.

Any revision, modification or change in the zoning regulations of the metropolitan government as provided in this section shall be made only by ordinance. Where a proposed ordinance revises, modifies, or changes the zoning regulations and is not accompanied at introduction by a favorable recommendation of the metropolitan planning commission, a copy thereof shall be promptly furnished by the metropolitan clerk to said planning commission, and the same shall not be passed on second reading until the recommendation of said planning commission with respect to the proposal has been received or thirty (30) days have elapsed without such recommendation. No ordinance making any revision, modification or change in the zoning regulations which has been disapproved by the metropolitan planning commission shall be finally passed or become effective unless it shall be adopted by a two-thirds majority of the whole membership of the council and also then be approved by the metropolitan mayor, with a three-fourths majority of the whole membership of the council required to override a veto. (Emphasis added)

The above stated Section 18.02 requires that zoning regulations enacted by the Metropolitan Council be based on a comprehensive plan such as the General Plan in this case. Therefore, the Metropolitan Charter limits the legislative power of the Metropolitan Council in matters regarding amendments of the zoning ordinance.

In conclusion, the Court finds that zoning ordinance amendments must comply with the General Plan adopted by the Planning Commission. Therefore, the Court further finds Ordinance No. 94-1222 to be inconsistent with the General Plan and that no rational basis existed for its enactment. Grant, et al. v McCullough, et al., 270 S.W.2d 317 (Tenn. 1954).

Accordingly, it is the declaration of the Court that Metropolitan Council Ordinance No. 94-1222 is void and of no effect.

All other issues are pretermitted.

The costs are taxed to the petitioner.

Counsel for the Metropolitan Government shall prepare an order consistent with this memorandum.

	
	

                                _____/signed by/________
                                IRVIN H. KILCREASE, JR.
                                CHANCELLOR

May 22, 1996

cc: Peter H. Curry
    Leslie Shechter
    George A. Dean
		

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