Sandra Walker v. Metropolitan Board of Parks and Recreation ( 2009 )


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  •      IN THE COURT OF APPEALS OF TENNESSEE
    AT NASHVILLE
    January 9, 2009 Session
    SANDRA WALKER, ET AL. v. METROPOLITAN BOARD OF
    PARKS AND RECREATION, ET AL.
    Appeal from the Chancery Court for Davidson County
    No. 07-1166-II   Carol L. McCoy, Chancellor
    No. M2007-01701-COA-R3-CV - FILED DECEMBER 30, 2009
    AND
    SANDRA WALKER, ET AL. v. METROPOLITAN BOARD
    OF PARKS AND RECREATION, ET AL.
    Appeal from the Chancery Court for Davidson County
    No. 07-2480-III  Carol L. McCoy, Chancellor
    No. M2008-01226-COA-R3-CV - FILED DECEMBER 30, 2009
    AND
    ORGANIZED NEIGHBORS OF EDGEHILL (O.N.E.), ET AL.
    v. METROPOLITAN BOARD OF ZONING APPEALS, ET AL.
    Appeal from the Chancery Court for Davidson County
    No. 07-2310-II   Carol L. McCoy, Chancellor
    No. M2008-02218-COA-R3-CV - FILED DECEMBER 30, 2009
    AND
    ORGANIZED NEIGHBORS OF EDGEHILL (O.N.E.), ET AL. v.
    METROPOLITAN GOVERNMENT, ET AL.
    Appeal from the Chancery Court for Davidson County
    No. 08-48-II Carol L. McCoy, Chancellor
    No. M2008-01748-COA-R3-CV - FILED DECEMBER 30, 2009
    Two residents of the Edgehill neighborhood of Nashville, as well as an organization of
    neighborhood residents, filed petitions for writ of certiorari with the aim of preventing the
    Metropolitan Government of Nashville and Davidson County from entering into a lease agreement
    with Belmont University. The same parties also brought a petition for declaratory judgment
    challenging the lease. The proposed lease provided that the University would construct an extensive
    sports complex in a public park located in the petitioners’ neighborhood for the use of the University
    as well as local schools and neighborhood residents. The first petition was filed after a public
    meeting at which the Metro Parks Board recommended that the lease be adopted, but before it was
    actually approved by the Metro Council. The trial court dismissed it without prejudice as
    premature. Subsequent petitions were filed after the Metro Council voted to approve the lease. The
    petitioners argued that the process the Parks Board followed was arbitrary and capricious, that it
    deprived them of their right to procedural due process, and that the action of the Metro Council was
    invalid because it was based on a flawed process of recommendation. The trial court dismissed all
    the petitioners’ claims. Because the Board’s recommendation was not a final order or judgment
    resulting from the exercise of judicial functions, and because the record showed that there was a
    rational basis for the Metro Council’s decision, we affirm the trial court.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
    PATRICIA J. COTTRELL, P.J.,M.S., delivered the opinion of the court, in which FRANK G. CLEMENT ,
    JR. and ANDY D. BENNETT , JJ., joined.
    Joseph Howell Johnston, Nashville, Tennessee, for the appellants, Sandra Walker and Janice
    Richardson.
    Richard L. Tennent, Nashville, Tennessee, for the appellants, Organized Neighbors of Edgehill
    (O.N.E.), Arlene Lane, et al.
    Sue B. Cain, Director of Law, The Department of Law of the Metropolitan Government of Nashville
    and Davidson County, Lora Barkenbus Fox, Assistant Metropolitan Attorney, Paul Jefferson
    Campbell, II, Assistant Metropolitan Attorney for the appellees, Metropolitan Board of Parks and
    Recreation;
    John Lee Farringer, IV, for the appellee, Belmont University.
    OPINION
    The appeals decided in this opinion arose from challenges to an agreement between the
    Metropolitan Government of Nashville and Davidson County (“Metro”) and Belmont University
    (“Belmont”) regarding the use and development of a public park. As will be explained below, these
    challenges resulted in lawsuits that took various procedural forms, involved some of the same
    parties, and were subject to consolidations, transfers, severances, and joinder of claims in the trial
    -2-
    court.1 We need not, and will not, detail in every particular the complicated procedural path that led
    the cases to these appeals. We have concluded that several issues exist that should be addressed,
    regardless of the action in which they were raised, and that it will be simpler and clearer to decide
    all the appeals in one opinion, because they all arise from the same set of facts and share related
    issues.
    Two residents who live near the park in question, Sandra Walker and Janice Richardson,
    as well as a community organization called Organized Neighbors of Edgehill (“O.N.E.”) filed
    actions challenging Metro’s decision to enter into a longterm lease with Belmont. They named, as
    various defendants or respondents in the different actions, all the Metro entities that played some
    part in the process(es) resulting in approval and implementation of the lease: Metropolitan Board
    of Parks and Recreation (“Parks Board’), the Metropolitan Planning Commission, the Metropolitan
    Council (“Council”), and the Metropolitan Board of Zoning Appeals (“the BZA”). Belmont
    University was also named as a defendant or respondent.
    Eventually, the various actions were appropriately separated out by the trial court into claims
    properly brought by common law writ of certiorari and those properly brought as actions for
    declaratory judgment. Like claims were joined or consolidated, and dissimilar claims were severed.2
    All of the cases arose from the same proposed transaction, and the underlying facts are not in
    dispute.
    I. A PLAN FOR A PARK
    E.S. Rose Park is a 23.88 acre park in the Edgehill neighborhood of Nashville. It is owned
    by Metro and is managed by the Parks Board. Much of the park is undeveloped, but it is crossed
    by trails that neighboring residents use for walking and bicycling. One acre contains the Easley
    Community Center and a public swimming pool. There are also a baseball field and two
    playgrounds. Two public schools adjoin Rose Park and use its facilities: Carter-Lawrence
    Elementary School and Park Middle School. Hume-Fogg High School, located in another part of
    the city, uses the Rose Park baseball field for its games.
    Belmont University is a private university located about ten blocks away from Rose Park.
    It has a number of varsity athletic teams sanctioned by the NCAA, including men’s and women’s
    baseball, soccer and track teams. In January of 2006, Belmont asked Metro if some of its athletic
    teams could use Rose Park. That request led to discussions with the acquisition/disposition
    committee of the Parks Board and finally to the drafting of an agreement which the committee
    1
    This court consolidated the four appeals into two for purposes of briefing and argument.
    2
    For example, the declaratory judgment claim by Ms. W alker and Ms. Richardson against the Metro Council
    was severed from their certiorari claims and was joined with O.N.E.’s case through an “Amended Joint Petition for
    Declaratory Judgment and Injunctive Relief.” Appellate causes of action, like a petition for common law writ of
    certiorari, may not be combined with original causes of action, like petitions for declaratory judgment. Hunter v.
    Metropolitan Board of Zoning Appeals, No. M2002-00752-COA-R3-CV, 2004 W L 315060 at *4 (Tenn. Ct. App. Feb.
    17, 2004)(no Tenn. R. App. P. 11 application filed). The W alker and Richardson petition did not specifically refer to
    declaratory judgment. However, the trial court deemed the claim against the Metropolitan Council to be one for
    declaratory relief and, accordingly, allowed it to be severed from the claims against the other governmental entities.
    -3-
    recommended to the full membership of the Board “contingent upon conditions relative to
    scheduling, traffic control/parking being resolved and subject to approval by Metro Legal before the
    final contract is signed.”
    The proposed agreement was a 40 year Property Improvement and Lease Agreement (“the
    Agreement”). It provides that Metro will continue to own Rose Park and to operate it through the
    Parks Board. Belmont will lease 22 acres of Rose Park and, at its own expense (estimated at about
    $6,900,000), will design and construct upgrades to the baseball field and to common areas of the
    park, as well as a new softball field, soccer field, track, and field house. The Agreement recites that
    the facilities will be used by Belmont’s athletic teams, as well as by residents of the general
    community and the public schools. Article 6 of the Agreement, captioned “Use of Improvements
    by Belmont,” declares among other things that “[i]n scheduling Belmont Events that are
    intercollegiate competitions, Metro shall, at all times during the terms of this Agreement, make
    reasonable efforts to schedule Belmont’s first choice of dates and times.”
    After consideration by various entities, as described below, and various amendments, the
    final version of the Agreement approved by Council contained a provision that Belmont make a
    yearly lease payment of $50,000 to Metro, with a 3% increase each year for inflation, with twenty
    percent of the lease payments to be given to the parent-teacher organizations of the two public
    schools adjoining Rose Park, and the remaining eighty percent to be given to the Parks Department,
    to be specifically dedicated to the Easley Community Center. Those dedicated funds are to be used
    to support improved programing for area youth and seniors, and “will not supplant regular funding
    provided to Metro Parks for the operations of the Easley Center.”
    II. ACTION BY THE PARKS BOARD
    Consideration of the lease agreement was included on the agenda of a Parks Board meeting
    scheduled for May 1, 2007. Prior to the meeting, Metro’s Director of Parks and Recreation and
    Parks Board members received a petition in opposition to the proposed Agreement signed by 325
    residents and property owners of the Edgehill community, supplied by O.N.E. Delivered at the same
    time was a nine-page document containing suggestions for changes to the Agreement to make it
    more equitable for the community, in the view of O.N.E.
    At the May 1 meeting a number of citizens addressed the Board to express their concerns
    about the proposed Agreement or their outright opposition to it, including a member of the Metro
    Council and former principal at Carter Lawrence School, a representative of a group that wanted to
    present a different plan, and the pastor of an Edgehill church. Ms. Lane, a member of O.N.E.’s
    Board, also spoke and submitted a document setting out O.N.E.’s concerns about the Agreement and
    urging the Board to defer voting on it. The document was filed as an exhibit to the proceedings. Ms.
    Walker and Ms. Richardson, who were also members of O.N.E., were unsuccessful in their requests,
    made through their attorney, to speak individually at the meeting.3
    3
    Ms. W alker and Ms. Richardson had retained Mr. Joseph H. Johnston as their counsel. He sent a letter dated
    April 13, 2007, to the Chair of the Parks Board asking that he be sent a copy of the proposed agreement “at least ten days
    prior to the Board meeting wherein it will be considered” and announcing that his clients wished to attend and to speak
    (continued...)
    -4-
    During deliberations by the Board, several members expressed their appreciation for the
    valuable citizen input, but also stated that they believed on balance that the project should be
    allowed to go forward. One member stated that he felt that Article 6 of the proposed Agreement did
    not make Metro’s role in the operation of the park sufficiently clear. He stated that “in my view,
    Metro cannot abandon, cannot abrogate, nor delegate, its responsibility to determine the dates, time
    of usage, and types of usage in this project.” He said that input from Belmont was welcome and
    acceptable, but that Metro, through the Parks Board, had to be the ultimate gatekeeper for the use
    of the park.
    Belmont President Bob Fisher was asked if he understood the Agreement to provide that
    Metro would be the gatekeeper and the controller of scheduling. He stated that he did, but that he
    would not object to having the language about that provision strengthened. A board member then
    moved that the Board recommend approval of the Agreement contingent on the suggested
    modification to Article 6. After discussion, it was agreed that the proposed change could be drafted
    and sent to the members within a few days and that they could confirm their approval of it by “e-
    mail vote or some sort of proxy.” The Board then approved the motion unanimously.
    III. THE FIRST PETITION
    On May 23, 2007, Sandra Walker and Janice Richardson (“Petitioners”) filed their first
    Petition for Writs of Certiorari and Supersedeas in the Chancery Court of Davidson County, naming
    the Parks Board, the Metropolitan Planning Commission, and Belmont University as respondents.
    (Chancery Court No. 07-1166-II).
    The trial court granted writs of supersedeas and ordered that the administrative record be sent
    up for review. The writs had the effect of suspending any further proceedings by the bodies subject
    to them.4 Metro and Belmont then filed a motion to dissolve the supersedeas, and Metro filed a
    motion to dismiss the petition entirely because it was premature. Metro also asked for an expedited
    hearing of the matter.
    3
    (...continued)
    at that meeting. The letter was sent by certified mail, return receipt requested, and it was delivered on April 19, 2007.
    The record shows that the Metropolitan Department of Law sent Mr. Johnston a copy of the proposed Agreement by fax
    on April 27, 2007. However, neither Mr. Johnston’s name nor the names of his clients were placed on the agenda of the
    meeting, apparently because his request was received after April 17, 2007, when the Board agenda was prepared, and
    after the deadline for such requests had passed, according to the rule followed by the Board.
    At the meeting, Mr. Johnston rose to speak for his clients and explained that while he knew he was not on the
    agenda, he wanted his letter of April 13 to be placed into the record as well as an “administrative complaint” he filed
    against Belmont University and the M etro Parks Department, reciting his clients’ legal and factual objections to the
    Agreement. Mr. Johnston stated that he had served his “administrative complaint” on every Board M ember and on the
    President of Belmont University.
    4
    Tenn. Code Ann. § 27-9-106(a) states that “[i]f the order or judgment rendered by such board or commission
    made the basis of the petition for certiorari shall make any material change in the status of any matter determined therein,
    the petitioner may, upon reasonable notice to the board or commission and other material defendants, apply to the
    chancellor, at the time of filing such petition, for a supersedeas, and the chancellor, in the chancellor’s discretion, may
    grant a writ of supersedeas to stay the putting into effect of such order or judgment or any part thereof.”
    -5-
    The Chancery Court granted the expedited hearing, which was conducted on June 18, 2007.
    Petitioners argued that the irregularities they set out in their petition entitled them to the relief of
    having the Board’s recommendation vacated.5 Metro argued that judicial review by certiorari is only
    appropriate for a final order, that the Parks Board had only made a recommendation, and that a final
    decision on the proposed Agreement had not yet been rendered by the only body authorized to make
    that decision, the Metropolitan Council. Metro also contended that if the court were to hold that a
    party is entitled to mount a judicial challenge to each and every administrative step in a multi-step
    process, such a party could force the indefinite postponement of any action it opposed.
    After hearing argument from both sides, the court declared that it agreed with the
    Metropolitan Government. Its order, filed on July 16, 2007, dissolved the writs of supersedeas in
    order for the process to continue. The writ of certiorari was dismissed as premature because the
    Metro Council had not yet acted and, therefore, there was no final action to review. The dismissal
    of the writ of certiorari was declared to be without prejudice to the petitioners’ right to file another
    petition for the writ once a final decision was made. The petitioners filed an appeal to this court,
    which was given Court of Appeals No. M2007-1701. We stayed the appeal, pending the trial court’s
    disposition of the companion cases related to the disputed Agreement.
    IV. THE PROCESS CONTINUES
    With the trial court’s lifting of the writ of supersedeas, the Planning Commission was able
    to consider the proposed Agreement in its meeting of August 9, 2007. The planning staff made a
    ten-minute presentation and recommended approval of the Agreement.6 The attorney for Ms.
    Walker and Ms. Richardson was among those who spoke in opposition to the agreement. After the
    public comment portion of the meeting was over, each member of the Planning Commission stated
    his or her position. A motion was then made to approve the Agreement, subject to completion of
    an expanded traffic study. The motion passed, four votes to three.
    A condition set out in the Agreement addressed other required permitting. That condition
    reads, “Belmont shall have secured any zoning changes, licenses, permits, and/or approvals required
    to allow construction of the improvements and the Contemplated Use. Metro shall assist in these
    efforts as appropriate.” Accordingly, Belmont applied to the BZA for a Special Exception Permit
    to be allowed to build the planned facilities. On June 21, 2007, the BZA conducted a public hearing
    to consider Belmont’s application. Proponents and opponents of the Agreement addressed the BZA.
    5
    Petitioners claimed that by refusing to allow their attorney to speak at the Parks Board meeting, the Board had
    acted in an arbitrary and capricious way and had violated their right to procedural due process. They further claimed
    that the proposed agreement between the Department of Parks and Belmont University amounted to a “public/private
    partnership” and that the Parks Department’s Policy Manual restricts the creation of such partnerships to those public
    assets which are not currently being used for Parks and Recreation Services. They, therefore, argued that the Parks
    Board had no authority over the matter and that its action was ultra vires. Finally, the petitioners claimed that because
    the Board’s approval of the final version of the Agreement involved an exchange of e-mails by Board members, the
    Board was in violation of the Open Meetings Act.
    6
    The Commission had decided to allow one hour for public comment, with a total of thirty minutes allotted to
    each side, but it charged the ten minutes of the planning staff’s presentation to the proponents of the Agreement, leaving
    that side with only twenty minutes of public comment.
    -6-
    The opponents who spoke included Mr. Joe Johnston, the attorney who represents Ms. Walker and
    Ms. Richardson, Ms. Lane, and several members of O.N.E.
    At the conclusion of the meeting, the BZA determined that the application by Metro Parks
    and Belmont met all the requirements for a Special Exception Permit as set forth in Section
    17.40.720 of the Metropolitan Code. However, it deferred action on approval of the permit to allow
    completion of an extended traffic and parking analysis and to give the parties the opportunity to
    enter into negotiations to make the lease more acceptable to the neighborhood. Metro Council
    members Ginger Hausser Pepper and Ludye Wallace agreed to facilitate the negotiations. On
    August 11, 2007 Codes Administrator Sonny West wrote a letter to the BZA recommending that
    the new facility be designated as a “recreation center.” Prior to the next BZA meeting, O.N.E. filed
    an appeal, challenging the classification of the facility as a recreation center rather than as a stadium,
    which is not permitted in a residentially-zoned area.7
    The next meeting of the Board of Zoning Appeals was conducted on August 16, 2007. Two
    separate items related to the proposed Agreement were on the meeting agenda. The first was the
    “Item A” appeal of the Codes Administrator’s decision as to the proper classification of the
    proposed improvements to Rose Park. The BZA heard testimony by Mr. West as to his reasoning
    and arguments for and against the recreation center classification. The attorney for O.N.E. argued
    that the baseball field, with planned seating for between 500 and 750 spectators, should be
    considered a stadium because of its planned configuration and use. Belmont’s attorney argued that
    the stadium classification should be reserved for larger facilities which can accommodate a much
    greater number of spectators and can create a more serious impact on the surrounding community
    from increased traffic and noise. Three Metro Council members also addressed the BZA with their
    own concerns and perspective on the question. At the conclusion of all comment and of extensive
    deliberation by Board members, the BZA voted 4-2 to uphold the classification established by the
    Zoning Administrator.
    The next item on the BZA’s meeting agenda was an “Item C” review of the application for
    a Special Exception Permit to construct the three athletic fields in Rose Park. The BZA first heard
    testimony from a traffic engineer with Metro Public Works, who had reviewed the new traffic study,
    and who stated that according to his Department’s analysis, so long as Metro and Belmont complied
    with the conditions set out in the Agreement to handle traffic and parking issues, the additional
    traffic generated by activities at the new sports facilities could be safely accommodated.
    The BZA then heard from Metro Council member Ginger Hausser Pepper as to the outcome
    of the negotiations between community members and Belmont on the issues of concern to the
    community, which was supplemented by a detailed written report on those negotiations. According
    to Council Lady Pepper, the parties were able to reach agreement on a great many of those issues.
    Among other things, Belmont agreed to construct additional pedestrian improvements in the park,
    to allow the three public schools that use the park to have first priority in scheduling for the athletic
    fields, and to give University scholarships to qualified students from the neighborhood. They also
    7
    Rose Park is zoned RM20 (Multi-Family Residential, 20 units per acre). Under Metro’s Zoning Code, a
    recreation center cannot be built in an area zoned RM20 unless a Special Exception Permit is granted. Land zoned RM20
    may not be used for a stadium/arena/convention center under any circumstances.
    -7-
    agreed not to name the new facilities for Belmont and not to construct a chain link fence around the
    playing fields. However, Belmont was unable to allay neighborhood concerns about the size of the
    footprint of the new athletic fields, the duration of the lease, and the creation of a mechanism to
    ensure compliance by the University with its promises.
    After Ms. Pepper’s presentation, the BZA heard from a Metro Parks representative, who
    assured the BZA members that the Parks Department would retain sole authority to schedule all park
    activities, and that it would monitor Belmont’s compliance with all the agreements it made about
    the use of the park. The Board then deliberated at length and ultimately voted 5-1 to approve the
    special use exception subject to nine conditions that the parties had agreed upon in negotiation. The
    BZA subsequently entered an order memorializing its decision.8
    Meanwhile, a bill had been introduced in the Metro Council to approve the 40 year Property
    Improvement and Lease Agreement. On August 21, 2007, the Council considered it on third
    reading, after receipt of the Planning Commission’s recommendation. At that session, the Council
    amended the Agreement to reflect the conditions adopted by the BZA.9 The bill was then adopted
    as amended, and the lease was referred back to the Parks Board for review of the amendments.
    The Mayor signed the bill on August 23, 2007. The Parks Board met on September 6, 2007,
    and did not object to the amendments, voting unanimously to approve the amended Agreement.10
    Representatives of Metropolitan Government and Belmont University executed the Agreement on
    October 26, 2007.
    V. PROCEEDINGS IN TRIAL COURT
    On October 15, 2007, O.N.E. and ten of its individual members filed a petition for
    supersedeas and certiorari in the Chancery Court of Davidson County (Chancery Court No. 07-2310-
    8
    Those nine conditions are stated in the BZA’s order as follows: “(1) agreement (attached) with the community
    and Belmont to be included as part of the approval by the Board (items (1-12); (2) Metro schools to be given priority
    scheduling; (3) no perimeter fencing shall be chain-link fencing to be placed around the park and no parking lot entrances
    or fields to be gated except for security purposes as deemed necessary by Parks; (4) seating limited to 750 for the
    baseball field, 300 for the track/soccer area and 250 for the softball field, any additional seating must be approved by
    the BZA; (5) retractable netting to be provided to protect the two schools as needed; (6) schematic master plan as
    presented in public hearing (attached); (7) no amplified sound during normal school hours; (8) no intercollegiate games
    to be scheduled to begin until at least 30 minutes after normal closing hours for Carter Lawrence and Rose Park are
    dismissed for the day; (9) Metro schools to be given priority scheduling.” The twelve items of agreement referred to
    as condition (1) in the BZA’s order are found in a spreadsheet in the administrative record, and include items relating
    to scheduling, field design, safety, traffic and parking, lighting, noise, concessions, maintenance, repairs, liability,
    signage and the naming of fields.
    9
    Belmont fully agreed to the amendments. They included a provision requiring the university to provide eight
    full-tuition university scholarships and two half- tuition scholarships to qualified community residents throughout the
    forty-year duration of the lease.
    10
    Again, a request by the attorney for Ms. W alker and Ms. Richardson to speak at the meeting was denied on
    the ground that the agenda for the September board meeting had closed before his request was received. At the meeting,
    the attorney rose to speak and asked to be allowed to introduce five exhibits. They were accepted, but he was ruled out
    of order. Mr. Johnston then refused to return to his seat and was escorted from the building by a police officer.
    -8-
    II). The petition named as respondents the Metropolitan Government of Nashville and Davidson
    County, the Board of Zoning Appeals, the Metropolitan Board of Parks and Recreation, the
    Metropolitan Planning Commission, and Belmont University.
    Sandra Walker and Janice Richardson, both members of O.N.E., filed a second petition for
    supersedeas and certiorari in their individual names at around the same time (Chancery Court No.
    07-2480-II). The same respondents were named as in their first petition, with the addition of the
    Metropolitan Council. Because both petitions arose out of the same operative facts and law and
    implicated the same remedies, the trial court allowed joinder of the two petitions in an agreed order
    to consolidate, filed on December 5, 2007.11
    Metro filed a motion to dismiss, arguing among other things that the claims against the
    Planning Commission and the Parks Board should be dismissed because those bodies did not take
    any “final action” subject to review under the writ of certiorari. On December 7, 2007, the Chancery
    Court conducted a hearing on the motion. The court determined that the claim for writ of certiorari
    against the various administrative agencies of Metropolitan Government had to be severed from any
    claim implicating the Metro Council, which as the legislative arm of Metro Government is not
    subject to the writ, and whose actions can only be challenged through an action for declaratory
    judgment. See McCallen v. City of Memphis, 
    786 S.W.2d 633
    , 638 (Tenn. 1990); Fallin v. Knox
    County Bd. of Commissioners, 
    656 S.W.2d 338
    , 342 (Tenn. 1983); Bernard v. Metro Gov’t of
    Nashville and Davidson County, 
    237 S.W.3d 658
    , 665 (Tenn. Ct. App. 2007).
    The trial court accordingly held its ruling in abeyance to give the petitioners the opportunity
    to sever the declaratory judgment action from the certiorari action. The petitioners subsequently
    filed two amended petitions in accordance with the court’s ruling, a Joint Amended Petition for
    Writs of Certiorari and Supersedeas (which remained Chancery Court No. 07-2310-II), and a Joint
    Amended Petition for Declaratory Judgment and Injunctive Relief (Chancery Court No. 08-48-II).12
    With the certiorari action in abeyance, the parties filed cross motions for summary judgment
    in the declaratory judgment action.13 O.N.E., Metro Government, and Belmont University each filed
    Statements of Undisputed Material Facts pursuant to Tenn. R. Civ. P. 56.03. The hearing on the
    competing motions was conducted on March 28, 2008. The attorneys for O.N.E. and for Ms.
    Walker and Ms. Richardson both pointed out that on many occasions during the proceedings that
    led up to the filing of their petitions, representatives of Metro and of Belmont referred to the
    11
    The agreed order was just one of several procedural events that occurred at around the same time to realign
    the cases challenging the lease agreement with each other. As Ms. Walker and Ms. Richardson’s petitions were moving
    through the Davidson County Chancery Court, Part III, the petitions brought by O.N.E. were making their way through
    another section (Part II) of the same court. Upon the joint motion of the parties, and “in the interest of judicial economy
    and to avoid the possibility of inconsistent rulings on the same issues in these cases,” the court ordered Ms. Walker and
    Ms. Richardson’s petitions transferred to Part II.
    12
    Consequently, O.N.E. and Ms. Walker and M s. Richardson, collectively, will be referred to as “Petitioners”
    throughout the rest of this opinion.
    13
    The court apparently chose to hear the declaratory judgment action before the certiorari action because a
    judgment for the petitioners on the declaratory judgment action would likely render the certiorari action moot.
    -9-
    proposed Agreement between those two entities as a partnership, both orally and in writing. They
    argued that the Agreement was therefore a public/private partnership operating in the name of a
    lease, and that as such the recommendation by the Parks Board that it be approved and the vote of
    the Metro Council adopting the Agreement by ordinance were ultra vires and should be deemed to
    be void ab initio.14
    The attorneys for Metro and for Belmont University responded by contending that the Metro
    Council had the authority to enter into the lease agreement and that it exercised that authority in a
    lawful and reasonable manner. They further argued that just as the court only speaks through its
    minutes, likewise, the Council can only speak through the ordinances that it passes. They pointed
    out that the Council did not use the words “partner,” or “partnership” in the ordinance and that the
    Lease Agreement specifically declares that it should not be construed as creating any kind of
    partnership between Metro Government and Belmont. They, therefore, argued that generic
    references to partnership within the context of preliminary proceedings before municipal bodies
    have no legal effect.
    At the conclusion of the hearing, the trial court took the case under advisement. On April
    23, 2008, the court filed a 24 page Memorandum and Order, which addressed in detail all the
    arguments raised by the petitioners’ attorneys. The court held that the Metro Charter did not limit
    or restrict the Metro Council’s authority to enter into leases through legislative action and that any
    limits on the authority of the Parks Board to enter into public/private partnerships did not apply to
    the Metro Council.
    The trial court also found that implementation of the Agreement would bring numerous
    benefits to the children and adults of the Edgehill neighborhood, and that those benefits were
    reasonable justifications to support the lease agreement. The court noted that although the
    petitioners did not agree that those benefits were reasonable justifications, a disagreement with
    legislative purposes does not create a factual dispute. The court accordingly found that there were
    no material facts in dispute and that Metro Government and Belmont University were entitled to
    summary judgment as a matter of law. The petitioners appealed, and the case was designated as
    Court of Appeals No. M2008-1748.
    The trial court subsequently conducted a hearing on the combined petition for writs of
    certiorari and supersedeas, after which it severed the claim against the BZA from the claim against
    the Parks Board and dismissed the claim against the Parks Board. The dismissed claim was
    docketed as Case No. 07-2480-II. The Court held that “the decisions by the Parks Board regarding
    the proposed ‘Property Improvement and Lease Agreement’ were not final decisions by this agency,
    but were merely recommendations to the Metropolitan Council to approve said agreement and are
    therefore not reviewable by this Court by writ of certiorari.”15 The appeal of that decision was
    14
    Attorney Joseph Johnston also argued that Parks Board violated his clients’ First Amendment rights to free
    speech and that it violated the Open Meetings Act, Tenn. Code Ann. § 8-44-101 et seq.
    15
    The Planning Commission was not listed as a respondent in the trial court’s order and the court did not discuss
    any claim against the Commission. However, the petitioners do not complain about this oversight, perhaps because in
    this case the role of the Planning Commission, like that of the Parks Board, was to make recommendations only. Thus,
    (continued...)
    -10-
    designated as Court of Appeals No. M2008-01226. The certiorari claim against the BZA was
    allowed to proceed with a new case number in the trial court.
    The claim against the BZA was premised on the arguments the BZA’s classification of the
    proposed athletic fields as a recreational center did not meet the definition of recreational center
    found in the Metro Zoning Code, and that the BZA erred in approving a Special Use Exception
    permit to allow the construction of athletic fields in Rose Park. In a 21 page Memorandum and
    Order, filed on August 28, 2008 the trial court rejected these arguments, and dismissed the petition
    on summary judgment. The petitioners filed a timely notice of appeal, which was designated as
    Court of Appeals No. M2008-02218.
    VI. THE WRIT OF CERTIORARI ACTIONS
    Actions for certiorari and those for declaratory judgment are distinct forms of action to which
    a petitioner may have recourse, depending on the nature of the decision maker involved or of the
    governmental action from which the petitioner seeks relief. An action for certiorari is the proper
    remedy for a party aggrieved by the final order or judgment of an administrative body which has
    acted in a judicial or a quasi-judicial capacity to apply existing law to the facts of a particular case.
    Tenn. Code Ann. § 27-9-101 et seq.; McCallen v. City of 
    Memphis, 786 S.W.2d at 638
    ; Fallin v.
    Knox County Bd. of 
    Commissioners, 656 S.W.2d at 342
    .
    The distinction between declaratory judgment actions and those brought as common law writ
    of certiorari is that “determinations . . . [that] are administrative determinations, judicial or quasi-
    judicial in nature, and are accompanied by a record of the evidence produced and the proceedings
    had in a particular case” are reviewable by certiorari, “whereas, the enactment of ordinances or
    resolutions, creating or amending zoning regulations, is a legislative, rather than an administrative,
    action and is not ordinarily accompanied by a record of the evidence, as is the case of an
    administrative hearing.” Fallin v. Knox County Bd. of 
    Commissioners, 656 S.W.2d at 342
    -43.
    Legislative actions are not reviewable by common law writ of certiorari. 
    Id. The test
    for
    determining whether the governmental action is legislative or administrative, also called quasi-
    judicial is whether it “makes new laws or executes one already in existence.” Moore & Associates,
    Inc. v. West, 
    246 S.W.3d 569
    , 575 (Tenn. Ct. App. 2005) (quoting McCallen v. City of 
    Memphis, 786 S.W.2d at 640
    ).
    A. Judicial Review of Actions by the Parks Board
    The claims in the common law writ of certiorari actions involve, inter alia, challenges to the
    Parks Board’s decision in recommending the lease. These actions were brought pursuant to
    Tennessee Code Annotated § 27-8-101, which governs the extraordinary remedy of common law
    writ of certiorari, and Tennessee Code Annotated § 27-9-101 et seq., which sets out the procedures
    to be applied in judicial review, by common law writ of certiorari, of decisions by boards and
    commissions. Tennessee Code Annotated § 27-9-101 provides:
    15
    (...continued)
    the court’s logic in dismissing the claim against the Parks Board applies equally to the Planning Commission.
    -11-
    Anyone who may be aggrieved by any final order or judgment of any board or
    commission functioning under the laws of this state may have the order or judgment
    reviewed by the courts, where not otherwise specifically provided, in the manner
    provided by this chapter. (emphasis added).
    The words of the statute clearly limit judicial review of actions by administrative bodies to
    final orders or judgments. Accordingly, this court has construed Tenn. Code Ann. § 27-9-101 to
    mean that actions by boards or commissions that are not final orders or judgments are not subject
    to judicial review under the common law writ of certiorari. See State Dept. of Commerce v.
    FirstTrust, 
    931 S.W.2d 226
    , 228-229 (Tenn. Ct. App. 1996) (holding that a subpoena duces tecum
    issued in conjunction with the Insurance Commissioner’s Order of Investigation does not amount
    to a final order subject to judicial review); Isom v. Knox County Retirement & Pension Board and
    Knox County, Tennessee, No. 03A01-9708-CH-00333, 
    1998 WL 136556
    , at *1 (Tenn. Ct. App.
    March 27, 1998) (no Tenn. R. App. P. 11 application filed) (holding that employee’s claim for
    refund of offsets he had previously paid was governed by Tenn. Code Ann. § 27-9-101 and, finding
    that the retirement and pension board had not yet acted on the employee’s claim, dismissing the
    common law writ of certiorari action since no final order or judgment by the board had been
    entered).
    The language “final order or judgment” in Tenn. Code Ann. § 27-9-101 must also be
    construed in the context of Tenn. Code Ann. § 27-8-101, which creates another requirement for the
    writ, by providing that,
    The writ of certiorari may be granted whenever authorized by law, and also in all
    cases where an inferior tribunal, board, or officer exercising judicial functions has
    exceeded the jurisdiction conferred, or is acting illegally, when, in the judgment of
    the court, there is no other plain, speedy, or adequate remedy. (emphasis added).
    The requirement that, to be subject to review by the common law writ of certiorari, a board’s
    decision must be the result of its exercise of judicial functions explains the use of the words “order”
    and “judgment” in Tenn. Code Ann. § 27-9-101 and in § 27-9-102 (requiring that a petition for writ
    be filed within sixty days from the entry of the “order or judgment”). Those terms are, of course,
    generally used to describe actions by courts. It is instructive to note that cases such as State Dept.
    of Commerce v. FirstTrust, 
    931 S.W.2d 226
    , discussed above, involved an interlocutory action
    (issuance of subpoenas) in a quasi-judicial proceeding. The term “interlocutory,” itself, implies an
    action taken during the pendency of a matter by the entity that will have final decision-making
    authority in the matter. See, e.g., Tenn. R. App. P. 9 (dealing with appeals of interlocutory orders
    by trial courts).
    That is not the situation here, because the Parks Board does not have decision-making
    authority with regard to the lease of Metro property. Only the Metropolitan Council has authority
    to lease property owned by Metro. Metropolitan Charter, §§ 2.01 and 3.06. While the Parks Board
    -12-
    has authority to supervise, control and operate the city’s recreation system, it is not authorized to
    render any decision on a lease of land.16
    The Parks Board’s recommendation was not final in that it was not the decisive
    governmental act authorizing or taking any specific action. A number of federal cases and cases
    from other jurisdictions have held that a recommendation by an administrative body is not a final
    order because further executive or legislative action is required before any final action can be taken.
    See Dalton v. Spencer, 
    511 U.S. 462
    (1994) (commission’s recommendation that the Philadelphia
    Naval Shipyard be closed was not a final decision subject to judicial review, because ultimate
    decision on closure rested with the President); Public Citizen v. Dept. of Health and Human
    Services, 
    795 F. Supp. 1212
    , 1221-1222 (D.D.C. 1992) (recommendation for new FDA rules does
    not create a justiciable question because the final decision on those rules rests with Congress);
    Outgamie County v. Smith, 
    155 N.W.2d 639
    , 644-645 (Wis. 1968) (recommendation of site of new
    college campus not subject to review because the Governor and other state officials were charged
    with making a final decision on that site).
    As the trial court herein found, the decision the petitioners seek to challenge was not a final
    order or judgment. In fact, and perhaps more importantly, the Parks Board’s recommendation of
    the proposed lease was not even an order or a judgment, much less a final one. See Paris v. City of
    Lebanon Personnel Review Board, No. 01A01-9702-CH-00054, 
    1997 WL 607519
    at *4 (Tenn. Ct.
    App. Oct. 3, 1997) (no Tenn. R. App. P. 11 application filed) (stating that a letter of termination
    from the police chief was not an order or judgment). It was merely a recommendation on a matter
    of public policy.
    Finally, whether the Parks Board’s decision to recommend the proposed lease was final or
    not, it is simply not the kind of administrative decision that is subject to judicial review under the
    common law writ of certiorari. It was not the product of a judicial or quasi-judicial proceeding, and,
    thus, does not meet the prerequisites in Tenn. Code Ann. § 27-8-101. In deciding whether to
    recommend the lease, the Board was performing a policy-making function. Nothing in the decision
    to recommend the proposed lease implicated the exercise of a judicial function. See Ussery v. City
    of Columbia, No. M2008-01113-COA-R3-CV, 
    2009 WL 1546382
    , at *16 (Tenn. Ct. App. June 1,
    2009) (Tenn. R. App. P. 11 application filed Aug. 31, 2009) (holding that writ of certiorari is not
    available under Tenn. Code Ann. § 27-8-101 where the action challenged did not involve an inferior
    tribunal, board, or officer exercising judicial functions.) As explained above, administrative or
    quasi-judicial governmental action involves the execution of existing law, i.e. applying the facts of
    16
    In fact, the M etro Charter does not clearly require that a lease of park land be referred to the Parks Board for
    its opinion, input, or recommendation. M etropolitan Charter, Chapter 10, Sec 11.1002 (authorizing the Parks Board to
    make a recommendation for the acquisition or disposition of land managed by it). Metro appears to take the position that
    the Parks Board’s recommendation was part of the required procedure. Since that is the procedure that was followed,
    the question of whether it was necessary need not be decided. Metro also interprets the same Charter provision as
    requiring that any recommendation by the Parks Board regarding park land use must be referred to the Planning
    Commission. Again, the interpretation of that provision is not at issue. Any proposal involving the construction of a
    building or other structure on Metro land must be submitted to the Planning Commission for its approval or disapproval.
    See M etropolitan Charter, Sec. 11.505. If a proposal is approved by the Planning Commission, it is then submitted for
    a vote to the full Metro Council. If the Planning Commission disapproves of a proposal, it must inform the Metro
    Council of its reasons. However, even if the Planning Commission disapproves, the Metro Council may override any
    such disapproval by the vote of a majority of its membership. 
    Id. -13- the
    matter before the board to an ordinance or other legal rule. Moore & Associates, Inc. v. 
    West, 246 S.W.3d at 576
    .
    This court has also held that a deputy police chief’s decision denying former officers’
    requests for certain retirement benefits was not made by an inferior tribunal, board, or officer
    exercising judicial functions and, consequently, that decision was not subject to challenge by way
    of common law writ of certiorari. The court explained that, “[t]he statutory scheme implementing
    common law certiorari ‘plainly presupposes that a judicial or quasi-judicial proceeding is the subject
    of review and that a ‘record’ of evidence, common in such proceedings, is available for certification
    to the reviewing court.’” Bernard v. Metropolitan Government of Nashville and Davidson County,
    
    237 S.W.3d 658
    , 664 (Tenn. Ct. App. 2007)(quoting Fallin v. Knox County Bd. of 
    Comm’rs, 656 S.W.2d at 341
    ).
    Because the Parks Board did not act in a judicial or quasi-judicial capacity, and because its
    recommendation did not constitute a final order or judgment, we affirm the trial court’s dismissal
    of the claims against the Board which were brought under the common law writ of certiorari.
    B. Review of the Actions of the BZA
    The proper vehicle by which to seek judicial review of decisions of the local board of zoning
    appeals is the common law writ of certiorari, because such an action is administrative or quasi-
    judicial in nature, since it involves application of an existing zoning code to a particular set of facts.
    McCallen v. City of 
    Memphis, 786 S.W.2d at 640
    ; Moore & Associates, Inc. v. 
    West, 246 S.W.3d at 576
    ; City of Brentwood v. Metropolitan Bd. of Zoning Appeals, 
    149 S.W.3d 49
    , 57 (Tenn. Ct.
    App. 2004);Weaver v. Knox County Bd. of Zoning Appeals, 
    122 S.W.3d 781
    , 783-84 (Tenn. Ct. App.
    2003); Wilson County Youth Emergency Shelter, Inc. v. Wilson County, 
    13 S.W.3d 338
    , 342 (Tenn.
    Ct. App. 1999). Boards of zoning appeals generally engage in enforcing, applying, or executing law
    already in existence. Weaver, 122 S.W.3d at 784;Wilson County Youth Emergency 
    Shelter, 13 S.W.3d at 342
    .
    The scope of review under the writ of certiorari is quite limited. Willis v. Tennessee Dep't
    of Correction, 
    113 S.W.3d 706
    , 712 (Tenn. 2003). In common law of writ of certiorari proceedings,
    courts review a lower tribunal’s decision only to determine whether that decision maker exceeded
    its jurisdiction, followed an unlawful procedure, acted illegally, arbitrarily, or fraudulently, or acted
    without material evidence to support its decision. Petition of Gant, 
    937 S.W.2d 842
    , 844-45 (Tenn.
    1996)(quoting McCallen v. City of 
    Memphis, 786 S.W.2d at 638
    ); Fallin v. Knox County Bd. of
    
    Com’rs, 656 S.W.2d at 342-43
    ; Hoover Motor Exp. Co. v. Railroad & Pub. Util. Comm’n., 
    261 S.W.2d 233
    , 238 (Tenn. 1953); Lafferty v. City of Winchester, 
    46 S.W.3d 752
    , 758-59 (Tenn. Ct.
    App. 2001); Hoover, Inc. v. Metropolitan Bd. of Zoning Appeals, 
    955 S.W.2d 52
    , 54 (Tenn. Ct. App.
    1997); Hemontolor v. Wilson Co. Bd. of Zoning Appeals, 
    883 S.W.2d 613
    , 616 (Tenn. Ct. App.
    1994).
    Under the certiorari standard, courts may not (1) inquire into the intrinsic correctness of the
    lower tribunal’s decision, Arnold v. Tennessee Bd. of Paroles, 
    956 S.W.2d 478
    , 480 (Tenn. 1997);
    Powell v. Parole Eligibility Rev. Bd., 
    879 S.W.2d 871
    , 873 (Tenn. Ct. App. 1994); (2) reweigh the
    evidence, Watts v. Civil Service Board for Columbia, 
    606 S.W.2d 274
    , 277 (Tenn. 1980); Hoover,
    -14-
    Inc. v. Metro Bd. of Zoning App., 
    924 S.W.2d 900
    , 904 (Tenn. Ct. App. 1996); or (3) substitute their
    judgment for that of the lower tribunal. 421 Corp. v. Metropolitan Gov’t of Nashville, 
    36 S.W.3d 469
    , 474 (Tenn. Ct. App. 2000). It bears repeating that common law writ of certiorari is simply not
    a vehicle which allows the courts to consider the intrinsic correctness of the conclusions of the
    administrative decision maker. 
    Powell, 879 S.W.2d at 873
    ; Yokley v. State, 
    632 S.W.2d 123
    , 126
    (Tenn. Ct. App. 1981); Moore & Associates, Inc. v. 
    West, 246 S.W.3d at 574
    .
    Further, illegal, arbitrary or fraudulent actions include: (1) the failure to follow the minimum
    standards of due process; (2) the misrepresentation or misapplication of legal standards; (3) basing
    a decision on ulterior motives; and (4) violating applicable constitutional standards. Harding
    Academy v. Metropolitan Gov’t of Nashville and Davidson County, 
    222 S.W.3d 359
    , 363 (Tenn.
    2007)(citing Hoover, Inc. v. Metro Bd. of Zoning 
    Appeals, 924 S.W.2d at 904
    ). The same
    limitations apply to the scope of review of the appellate courts, which “is no broader or more
    comprehensive than that of the trial court with respect to evidence presented before the Board.”
    Watts v. Civil Service Board for 
    Columbia, 606 S.W.2d at 277
    1. The Classification of the Playing Fields
    The petitioners first argue that the BZA erred by classifying the proposed athletic fields as
    a “Recreation Center” rather than as a “Stadium.” The Metropolitan Code defines a Recreation
    Center as “recreational facilities such as community centers, playgrounds, parks, swimming pools
    and playing fields that are available to the membership of a club or the general public.” M.C.L. §
    17.04.060(b).17 The Code does not contain a definition for a Stadium. It declares, however, that
    when a term is not defined, “the definition found in the most current edition of Webster’s
    Unabridged Dictionary shall be used. The zoning administrator shall have the right to interpret the
    definition of the word.”
    Webster’s Dictionary defines a stadium as “a terraced structure with seats for spectators ...
    typically built in the shape of a long, narrow horseshoe; a large unroofed structure with tiers of seats
    for spectators built in various shapes . . . and enclosing a field used for sports events (as baseball,
    football, track and field).” In his letter of August 11, 2007, Metro Zoning Administrator Sonny
    West acknowledged that the dictionary definition could apply, but “there is no statement as to
    number of seats that is required to become a stadium rather than a playing field.”
    Mr. West noted that Metro had previously issued stadium permits for Vanderbilt Stadium,
    LP Field, Greer Stadium, Hale Stadium, Sommet Center and Municipal Auditorium, all of which
    are much larger venues than the one proposed for Rose Park, with seating for far larger crowds.
    Conversely, at least 25 of Metro’s 94 parks contain one or more baseball fields, some of which could
    conceivably meet the dictionary definition, but none of which have been required to obtain a stadium
    permit. These include the current baseball field in Rose Park, which has concrete bleachers that can
    accommodate hundreds of spectators, and a field in Shelby Park with similar features which
    Belmont uses for its home games when Greer Stadium is not available. Mr. West concluded that
    17
    The record shows that Rose Park already contains a community center, playgrounds, a swimming pool and
    a playing field, all open to the public. The proposed Agreement would not eliminate these, but would improve one
    playing field and add two new ones.
    -15-
    the proposed facilities “. . . should be classified as a ‘recreation center’ because the seating capacity
    and structures contemplated do not give rise to being classified as a ‘stadium.’”
    At the BZA meeting of August 16, 2007, the attorney for O.N.E. challenged Mr. West’s
    conclusion. He argued that the question of size was irrelevant when determining the proper
    classification for a sports facility. He noted among other things that when Belmont’s baseball team
    plays away games at other universities, it is almost always at a facility denominated as a stadium,
    and he pointed out that many quite small facilities are called stadiums. He cited examples, including
    a 314 seat baseball field at the Indiana Institute of Technology.
    The attorney for Belmont argued that size of a facility is an essential component of its proper
    classification. He acknowledged that a facility with the potential to draw thousands of vehicles and
    thousands or possibly tens of thousands of spectators for a single sporting event could overwhelm
    a residential area with noise and traffic, but he noted that Belmont’s proposed facility was much
    smaller, with maximum anticipated seating of 750 at the baseball field, 250 at the softball field, and
    300 at the soccer field and surrounding track. He also cited one statute, Tenn. Code Ann. § 7-3-
    202(2), which defines a “municipal stadium” as a structure with seats for not less than thirty
    thousand (30,000) spectators.
    Belmont’s attorney bolstered his argument by citing Metro’s Zoning Ordinance and the
    Zoning District Land Use Table which forms a part of it. See M.C.L. 17.08.030. That table includes
    a list of recreational and entertainment uses, matched with the zoning districts in which they are
    permitted. A recreation center is allowed in five out of six categories of residential district if a
    special exception is obtained (RS80 through RS 3.75, R80 through R6, RM2 through RM20, RM40
    through RM60, and MHP). “Stadium arena/convention center” forms a single category in the Land
    Use Table. Such structures are only permitted in certain multiple-use (not strictly residential)
    districts. Since the Table groups “stadium,” together with “arena” and “convention center,” the
    attorney argued that it was necessary to conclude that for zoning purposes, the stadium designation
    should be reserved for large structures designed to accommodate very large crowds.
    Following presentations, there was vigorous discussion among Board members as to the
    proper classification for the proposed facilities.18 Finally, a board member made a motion to
    overrule the zoning administrator and declare the proposed facility a stadium. The motion was
    seconded, but was defeated. A motion to uphold the ruling of the zoning administrator was then
    made. It was seconded and was passed 5-1.
    In its Memorandum and Order, the Chancery Court noted the limited scope of review that
    the court was entitled to exercise under the writ of certiorari. The court also noted the strong
    presumption of validity favoring the actions of a zoning agency when applying or interpreting its
    own ordinances. See Harding Academy v. Metro Gov’t of Nashville and Davidson County, 
    207 S.W.3d 279
    , 286 (Tenn. Ct. App. 2006). The court cited an unpublished opinion of this court to
    18
    A board member asked Mr. W est at one point how big a recreation center had to be before it became a
    stadium. He responded that he would probably draw the line at “about 5,000 ...it wouldn’t be 314 nor would it be
    30,000,” indicating that in his opinion facilities for fewer than 5,000 spectators would not normally fall into the stadium
    category.
    -16-
    further explain the framework for its decision. We stated in that opinion that where the
    interpretation of an ordinance in a close case or is “fairly debatable,” it is of no consequence that the
    evidence might support an opposite result, because the court may not substitute its judgment for that
    of the Board of Zoning Appeals. Brunetti v. Board of Zoning Appeals for Williamson County, No.
    01A01-9813-CV-00120, 
    1999 WL 802725
    at *5 (Tenn. Ct. App. October 7, 1999)(no Tenn. R. App.
    P. 11 application filed).
    The court then turned to the transcript of the BZA meeting and observed that the members
    of the BZA diligently examined the current use of Rose Park, the decision and reasoning of the
    Codes Administrator, and the description of the proposed ball fields, including the number of seats
    planned for each field. The court noted that the BZA also discussed the definition of “recreation
    center” in the Metro Code, the definition of “stadium” in Webster’s Unabridged Dictionary, the
    significance of the placement of “stadium” in the same category of the Land Use Table as “arena”
    and “convention center,” and the information provided by O.N.E.’s counsel regarding the number
    of seats in various venues throughout the country that carry the word stadium in their names. Only
    then did the BZA put the question to the vote that led to this appeal. The trial court concluded that,
    . . . it is fairly debatable whether Belmont’s proposed fields at Rose Park would
    constitute a recreational center. There is a reasoned basis for the conclusion that the
    improvements will be used for a recreational center and for the conclusion that they
    will not. However, the court need not decide that issue. The BZA’s decision ...was
    based on sufficient evidence and was a reasonable exercise of judgment. Therefore,
    this decision was not arbitrary, capricious or unlawful. Having found that the BZA
    was within its authority to accept the zoning administrator’s classification of the
    improvements as a recreation center, O.N.E.’s argument that they must be classified
    as a stadium must fail.
    The appellants argue on appeal that the proposed use of the baseball field by Belmont
    rendered its classification as a recreation center arbitrary and capricious.19 We disagree. The
    Zoning Administrator’s, and subsequently the BZA’s, interpretation of “recreation center” in the
    local zoning ordinance is consistent with the reasoning presented. Nothing in that interpretation or
    in the proceedings before the BZA would give this court a basis to set aside the BZA’s decision.
    As the trial court herein recognized, courts give deference to local government officials in
    decisions regarding land use.
    [O]ne principle that infuses the approach of Tennessee courts to judicial review of
    local land use decisions, whether those decisions are legislative or administrative in
    19
    They assert that not a single NCAA baseball team plays intercollegiate games at a field which is called a
    recreation center. Of course, what a facility is named is not necessarily, and not usually, the same as its zoning
    classification. They also cite the Zoning Administrator’s classification of similar facilities at Vanderbilt University and
    David Lipscomb University as stadiums, and contend that, “There is not a principled distinction between those facilities
    and what is proposed for Rose Park.” W e disagree. The baseball fields at those universities are located on their
    respective campuses. It is unlikely that they could meet the definition of a recreation center, because among other things,
    they are only “open to the public” to the extent that the universities themselves wish to make them available for public
    use.
    -17-
    nature, is that “the court’s primary resolve is to refrain from substituting its judgment
    for that of the local governmental body.” 
    McCallen, 786 S.W.2d at 641
    . There
    exists a public and judicial policy that favors permitting the community decision-
    makers closest to the events, who have been given broad powers in the area, to make
    zoning and land use decisions. Consequently, courts give wide latitude to local
    officials who are responsible for implementing zoning ordinances, are hesitant to
    interfere with zoning decisions, and will refrain from substituting their judgments for
    that of the local governmental officials. 
    Lafferty, 46 S.W.3d at 758
    ; Hoover, 
    Inc., 955 S.W.2d at 54
    ; Whittemore v. Brentwood Planning Comm’n., 
    835 S.W.2d 11
    , 15
    (Tenn. Ct. App. 1992).
    Moore & Associates, Inc. v. 
    West, 246 S.W.3d at 575
    .
    From our examination of the administrative record, it is clear that both parties presented
    information and arguments to support their respective points of view. The BZA members then
    debated the question at length, and their discussion shows that they understood, and fully
    considered, the arguments for both sides. The BZA had the authority and discretion to adopt a
    reasonable definition of the zoning code, and its application herein was consistent with the facts of
    the situation. Consequently, the trial court was correct to conclude that the BZA’s decision was not
    arbitrary, capricious or unlawful, but rather was founded on a course of reasoning applied to material
    evidence in the record. We affirm the trial court’s determination.
    2. The Special Exception Permit
    Petitioners also argue that the trial court erred in denying relief from the BZA’s grant of a
    Special Exception Permit for the proposed recreation center. According to M.C.L. 17.16.150(A),
    a special exception permit “shall not be considered an entitlement, and shall be granted by the board
    of zoning appeals only after the applicant has demonstrated to the satisfaction of the board that all
    of the required standards are met.” Those standards relate to compliance with regulations, integrity
    of adjacent areas, design and architectural compatibility, protection of natural features, historic
    preservation, traffic impact and hazard protection. They are set out in subsections A.-J. of M.C.L.
    17.16.150(A).20
    On appeal Petitioners raise both substantive and procedural objections to the award of the
    special exception permit. The substantive objections focus on the question of “integrity of adjacent
    areas,” a standard set out as follows in M.C.L. 17.16.150(C):
    A special exception permit shall be granted provided that the board finds that the use
    is so designed, located and proposed to be operated that the public health, safety and
    welfare will be protected. The board shall determine from its review that adequate
    public facilities are available to accommodate the proposed use, and that approval
    of the permit will not adversely affect other property in the area to the extent that it
    20
    Additionally, M.C.L. 17.16.220(C) contains setback, landscape buffer, and driveway access standards for a
    special exception permit which are specific to recreation centers. There is no dispute as to Belmont’s compliance with
    these standards.
    -18-
    will impair the reasonable long-term use of those properties. The board may request
    a report from the metropolitan planning commission regarding long range plans for
    land use development.
    Petitioners note that there is widespread neighborhood opposition to the proposed plan, based
    on potential scheduling problems, noise, lights at night, traffic and parking and overall interference
    with the surrounding neighborhood. They conclude that these constitute adverse effects which
    should have compelled the BZA to reject the application for a Special Exception Permit. However,
    there were also neighbors who spoke in favor of the plan.21
    The question, however, is not about the neighbors’ preferences. The BZA cannot base its
    decisions on the opinions of neighbors; instead, it must decide, based on evidence presented,
    whether the application meets the legal requirements.
    “[w]here a petitioner for a zoning permit has met all the requirements of the
    applicable zoning resolution, and where the zoning authority denies the permit based
    on reasons other than the petitioner’s compliance with the resolution, the [zoning
    authority’s] action in denying the permit is arbitrary and unreasonable.” In other
    words, a board member cannot vote to deny an application when the board member
    believes the applicant has met the necessary zoning requirements. Further, when an
    applicant has complied with the requirements of the ordinance, an administrative
    body may not deny the permit because of concerns of neighboring landowners.
    Hoover, Inc. v. Metro Bd. of Zoning 
    App., 924 S.W.2d at 905
    (citations omitted). See also Brooks
    v. Fisher, 
    705 S.W.2d 135
    , 138 (Tenn. Ct. App. 1985). The opinion of neighbors as to the future
    impact of the development and use envisioned herein is not proof of such impact; neither are their
    wishes, whether in favor or against the proposed changes to the park.
    The record shows that during the entire course of the proceedings to win approval of the
    Agreement, Belmont agreed to a number of proposals suggested by members of the community (and
    by O.N.E. itself) which were designed to address and ameliorate the concerns expressed by the
    opponents of the Agreement. Negotiations resulted in Belmont agreeing to make additional changes
    in the design and usage of the new facilities in order to make them more acceptable to the
    neighborhood. The BZA then adopted these and other agreed-upon changes at its second meeting,
    on August 16, 2007, and made them conditions for the grant of the Special Exception Permit.
    The modifications to the original Agreement included giving Metro Parks sole authority over
    scheduling of the playing fields, giving Metro schools priority in such scheduling, and holding back
    the start of Belmont games until at least thirty minutes after the end of the normal school day.
    21
    Among those were Reverend Vincent Campbell, whose church is located directly across the street from Rose
    Park. He stated that Rose Park was not fully utilized by community members, included members of his own church,
    because it has become a haven for prostitution, drugs and gangs. He expressed a belief that the increased foot traffic
    the proposed development would bring to the park would make it safer for everybody who used its facilities. He also
    suggested that much of the opposition to the project stemmed from community suspicions about Belmont’s intentions,
    and distrust that it would actually honor the promises it made, but that he himself had found university officials to be
    very open and very responsive to his concerns and to those of the community at large.
    -19-
    Belmont also agreed to minimize construction disruption on the schools and community, not to use
    amplified sound equipment during normal public school hours or after 10:00 p.m. at night, to turn
    off field lighting no later than 10:30 p.m. each night, to clean the grounds after using them, to
    comply with all the provisions of the traffic impact study, not to increase the number of parking
    spaces requested, to install retractable netting to prevent balls from breaking windows, and to refrain
    from placing chain link fencing around the park.
    The modified Agreement also included provisions calculated to have a beneficial impact on
    public health, safety or welfare. Among these were the promised construction of new pedestrian
    walkways in Rose Park with security lighting, construction of a new concessions booth dedicated
    exclusively to community use, and making the playing fields convertible for use by children.
    Belmont and Metro also agreed to dedicate lease payments to programs at the Easley Community
    Center and to the use of the two public schools adjoining the park, and Belmont agreed to provide
    eight full-tuition and two half-tuition University scholarships to disadvantaged neighborhood
    students, and to offer free course auditing privileges to Edgehill senior citizens.
    Thus, before the BZA gave its final approval to the special exception permit, Belmont and
    Metro had agreed to make significant changes to its proposal in order to reduce or eliminate the
    potential adverse effects identified by those opposing the Agreement, and most of those changes
    were included as conditions of the grant of the permit.
    Contrary to O.N.E.’s argument, we have found substantial and material evidence in the
    record to support the BZA’s decision to grant a Special Exception Permit, because the terms of the
    grant include reasonable conditions to protect the public health, safety and welfare, and to make sure
    that the construction of the three playing fields will not adversely affect other property in the area.
    Based on our review of the record, we cannot find, and it is not alleged, that the BZA failed to
    follow the minimum standards of due process; misrepresented or misapplied legal standards; based
    its decision on ulterior motives; or violated applicable constitutional standards.
    As we stated above, a court reviewing a petition for writ of certiorari may not reweigh the
    evidence or substitute its judgment for that of the administrative body whose decision has been
    challenged. We accordingly affirm the trial court.
    3. The Board’s Order
    O.N.E. also raised a procedural argument in the trial court to challenge the BZA’s decision.
    It asserted that the BZA’s order of August 21, 2007 was fatally defective because it did not include
    specific findings of fact, as required by Section 17.40.320 of the Metropolitan Code. That section
    reads,
    An approval of a special exception land use by the board of zoning appeals shall
    state the section of this title under which the permit was considered, and findings of
    fact relating to the applicable approval standards. In the case of a denial, the findings
    of fact shall specifically identify the standards not satisfied.
    -20-
    The trial court did not find O.N.E.’s argument persuasive. The court held that while specific
    findings of fact might have helped the court better understand the basis for the BZA’s decision, the
    absence of such findings did not invalidate the order, since the court was not precluded from
    examining the administrative record, including the transcripts of the BZA’s meetings, to reach such
    an understanding. The court stated that after conducting its examination of the record, it “found
    sufficient material evidence to conclude that the BZA did not act illegally, arbitrarily, or
    fraudulently, did not exceed its jurisdiction and did not violate any procedural or substantive due
    process rights.” The court also noted that substantial compliance with the procedural aspects of the
    zoning code is generally considered sufficient. Clapp v. Knox County, 
    273 S.W.2d 694
    , 698 (Tenn.
    1954); Morrow v. Babbitt, 
    943 S.W.2d 384
    , 389 (Tenn. Ct. App. 1996).
    O.N.E. raises the same argument on appeal that it raised at trial. It cites Hoover v.
    Metropolitan Board of Zoning 
    Appeals, supra
    , in which this court stated that “a reviewing court can
    not determine whether the decision of an administrative body is supported by material evidence
    unless the administrative body makes findings of facts setting forth the reasons for its 
    decisions.” 924 S.W.2d at 905
    . In the Hoover case, the Board of Zoning Appeals denied plaintiff Hoover a
    conditional use permit to operate a quarry.
    However, there are significant distinctions between the Hoover case and the one before us.
    The primary difference is that in Hoover, four of the five BZA members present at the meeting
    stated that Hoover had met the legal conditions required to obtain the conditional use permit it
    sought, while two of the BZA members abstained on the vote, evidently in response to pressure from
    neighbors opposed to the quarry, thus denying Hoover the four concurring votes necessary for
    approval of a conditional use permit.
    As this court said, “The denial was by operation of law. It had nothing to do with whether
    Hoover had met the specific or the general requirements.” We held that the BZA should not be
    allowed to use abstention as a means of circumventing its legal responsibilities, which include the
    requirement that “[i]n the case of a denial, the findings of fact shall specifically identify the
    standards not satisfied.”
    By contrast, in the present case the BZA considered the concerns of O.N.E. and the general
    community, and incorporated many of O.N.E.’s suggestions and demands. The administrative
    record includes the entire transcript of the two BZA meetings, including all the testimony, the
    Board’s discussion of the effect of Belmont’s proposed improvements on the surrounding area, and
    statements by individual members of the Board indicating that they believed that those
    improvements would have a positive impact. It is beyond dispute that the BZA considered the facts
    of the application and the relevant legal requirements. In their individual statements, the members
    of the Board expressed the reasons why they voted the way they did. Thus, although the BZA’s
    order may not have included specific findings of fact, its “approval” did.
    Thus, even though the trial court noted that the Board’s findings “may appear disjointed and
    scattered throughout their deliberations,” and that “their conclusions may appear in less than
    succinct fashion,” it was able to conclude after its review of the entire transcript and the technical
    record that there was sufficient material evidence to support the BZA’s decision. We have conducted
    a similar review, and we agree. In sum, even though it would have been preferable for the BZA to
    -21-
    include findings of fact in its order of August 21, 2007, in accordance with Section 17.40.320 of the
    Metropolitan Code, the absence of such findings does not require reversal of the Board’s decision
    in this case.
    VII. THE DECLARATORY JUDGMENT ACTIONS
    As we noted above, a petition for writ of certiorari is the proper vehicle for judicial review
    of the actions of a governmental body performing an administrative or quasi-judicial function, while
    an action for declaratory judgment is the proper remedy to be used by a party who wishes to
    invalidate an ordinance, resolution, or other enactment by a legislative body, such as the legislative
    authority of a county or city. Tenn. Code Ann. § 29-14-101 et seq.; McCallen v. City of 
    Memphis, 786 S.W.2d at 640
    ; Fallin v. Knox County Bd. of 
    Commissioners, 656 S.W.2d at 342
    ; Nance v. City
    of Memphis, 
    672 S.W.2d 208
    , 210 (Tenn. Ct. App. 1983). Despite this distinction, the scope of
    judicial review is similarly narrow in both types of cases.
    Our Supreme Court has stated, “[w]hile this court recognizes the statutory, procedural
    distinction between common law certiorari and declaratory judgment, there is no sound logic to
    maintain different standards of substantive review. Whether the action by the local governmental
    body is legislative or administrative in nature, the court should refrain from substituting its judgment
    for the broad discretionary authority of the local governmental body. An invalidation of the action
    should take place only when the decision is clearly illegal, arbitrary, or capricious.” McCallen v.
    City of 
    Memphis, 786 S.W.2d at 641-642
    .
    Further, “[w]hen the act of a local governmental body is legislative, judicial review is limited
    to ‘whether any rational basis exists for the legislative action and, if the issue is fairly debatable, it
    must be permitted to stand as valid legislation.’” McCallen v. City of 
    Memphis, 786 S.W.2d at 640
    (citing Keeton v. City of Gatlinburg, 
    684 S.W.2d 97
    , 98 (Tenn. Ct. App. 1984)). See also McCarver
    v. Insurance Co. of State of Pennsylvania, 
    208 S.W.3d 380
    , 385 (Tenn. 2006); Fallin v. Knox County
    Bd. of 
    Commissioners, 656 S.W.2d at 342
    ; Stalcup v. City of Gatlinburg, 
    577 S.W.2d 439
    , 442
    (Tenn. 1978).
    Thus, as for the substance of the ordinance approving the Agreement, our review is limited
    to “whether any rational basis exists for the legislative action.” The record is replete with examples
    of benefits that will inure to the children and adults of the Edgehill community from Council’s
    adoption of the Agreement, including specific language in the Agreement itself. Simply because
    Petitioners do not agree that those benefits justify approval does not implicate the Council’s
    authority to determine the public interest. Nor does it allow this court to substitute its judgment for
    that of the local governmental governing body. We find that there exists a rational basis for
    approval of the Agreement.
    In this appeal, Petitioners’ intended goal is to have this court vacate the Metropolitan
    Council’s approval of the Property Development and Lease Agreement. Their arguments, however,
    do not focus on the actions of the Metro Council itself, nor on the substance of the ordinance and
    lease, but rather on the preliminary hearings before the Parks Board which preceded the Council’s
    final vote. The first is substantive, while the second is procedural
    -22-
    A. A Lease or A Public/Private Partnership?
    Petitioners contend that the Lease Agreement is in actuality a public/private partnership and
    that Metro Parks Policy § 3000.29 allows the Parks Board to enter into such agreements only when
    unused or undeveloped park land is involved. They conclude that the Parks Board’s recommendation
    that the Agreement be approved was beyond the scope of its authority. Therefore, they argue,
    everything that came after the Parks Board’s recommendation, including the Metropolitan Council’s
    approval of the agreement, was also ultra vires.
    This argument must fail for two reasons: first, the Agreement was entered into by Metro
    Government acting through Metro Council and, second, there is no basis for characterizing the legal
    status of the Agreement as anything other than what it purports to be.
    As the trial court found, Metro is expressly authorized to lease its real property by ordinance,
    the Metro Council is the entity authorized to agree to such a lease, and the Council is not bound by
    any limitation placed upon the Parks Board. The trial court also noted that the title of the Agreement
    declares it to be a lease, or more precisely, a Property Improvement and Lease Agreement. By its
    terms, Metro will retain ownership of Rose Park and will lease a portion of the property to Belmont
    for 40 years. Belmont will make annual lease payments to Metro.
    Metro’s ordinance approving the Agreement does not make any reference to any sort of
    partnership. The Agreement itself states that “[n]othing in this Agreement is intended to or shall be
    interpreted to create a joint venture or partnership between Metro and Belmont or make Metro the
    partner of Belmont or constitute either the agent of the other..,” and further, that “Belmont shall be
    acting as a lessee and independent contractor on Metro’s behalf.” Casual statements made during
    the lengthy process cannot overcome the Council’s stated intent nor the content of the document that
    was approved by Council. Even if such casual statements made outside the Council’s formal action
    could be considered, as the trial court noted, “[w]ell recognized principles of statutory construction
    provide that when a statute’s text and legislative history disagree, the text controls.” BellSouth
    Telecommunications, Inc. v. Greer, 
    972 S.W.2d 663
    , 674 (Tenn. Ct. App. 1997).
    We must accordingly reject the argument that any references to a “partnership” or even to
    a “public/private partnership” made by various officials of Belmont and Metro during the course
    of the lengthy and multi-step process that ultimately resulted in the approval of the Agreement create
    a question as to the Agreement’s legal nature or its validity.
    B. Proceedings Before the Park Board
    The Petitioners also argue that alleged irregularities in the conduct of the meetings before
    the Parks Board rendered the subsequent action by the Metropolitan Council invalid. They contend
    that the Parks Board denied their attorney the right to speak at its meetings in reliance on an invalid
    rule, and that by conducting a small portion of its business by e-mail, the Board violated the Open
    Meetings Act. The petitioners argue that even an act which a municipality is authorized to do may
    be ultra vires if it is not done “in the manner prescribed by its charter or by the statute under which
    it is attempting to act.” City of Lebanon v. Baird, 
    756 S.W.2d 236
    , 242 (Tenn. 1988).
    -23-
    In City of Lebanon v. Baird the city council entered into a contract for the purchase of land
    through the adoption of two separate resolutions: the first authorized the Mayor to apply for a federal
    grant to acquire funds for the purchase of the land, and the second allowed him to use those funds
    together with the city’s unappropriated funds to purchase the property. The Council did not enact
    an ordinance, as it is required by the city charter to do in order to exercise its power to enter into
    contracts or to acquire land, and no public notice was given by any form of publication that those
    resolutions were under consideration.22 The Tennessee Supreme Court ruled that the city’s contract
    was ultra vires, not because the city lacked the authority to enter into such contracts, but because
    it “failed to exercise a power it has in the manner prescribed by controlling law.” City of 
    Lebanon, 756 S.W.2d at 243
    .
    In the present case, however, the Metropolitan Council passed an ordinance to adopt the
    proposed Agreement on the required three readings. There are no allegations of failure to give
    proper notice of the Council proceedings. Additionally, none of Petitioners’ complaints allege that
    the Council acted in a manner not consistent with the charter or any applicable statute.
    Consequently, Petitioners arguments regarding procedural flaws in the adoption of the Agreement
    are without merit.
    Even if the conduct of the Parks Board meetings were somehow relevant to a challenge to
    the Council’s approval of the lease, Petitioners’ complaints regarding participation at the Parks
    Board meetings do not rise to denials of First Amendment or due process rights, nor do they allege
    actions inconsistent withgoverning law.23 The complaint is that Petitioners’ attorney was deprived
    of the opportunity to express his clients’ views at two meetings of the Parks Board. However,
    Petitioners have failed to establish a “right” to speak at meetings of governmental entities at all.
    “Neither the First Amendment nor Article 1, Section 19 of the Tennessee Constitution is subject to
    analysis in terms of absolutes; all basic rights of free speech are subject to reasonable regulation.”
    22
    The Supreme Court noted that “a resolution passed with all the formalities required for passing ordinances
    may operate as an ordinance regardless of the name by which it is called.” City of Lebanon v. Baird, 756 S.W .2d at 243
    (citing Clapp v. Knox County, 273 S.W .2d 694, 700 (Tenn. 1954)). However, the Lebanon City Charter set out a number
    of specific requirements for the enactment of a valid and binding City ordinance. Among other things, “every ordinance
    shall be passed on two separate days in open session of the City Council before it shall become effective,” and “all
    ordinances shall be published at least once in a newspaper published in the City of Lebanon, or in pamphlet form, or by
    the posting . . . at a conspicuous place in the [County] Courthouse and/or at the City Hall. . . .” 756 S.W .2d at 241. The
    formal requirements of notice and of multiple readings at separate sessions were imposed “...to assure that the citizens
    of the municipality are adequately aware of the proposed action, its particular nature and costs, and are given an
    opportunity to voice their support or their opposition to the action in advance of the city’s commitment to it.” City of
    Lebanon v. Baird, 756 S.W .2d at 242. Further, the purpose of such charter provisions is to protect the taxpayers and “to
    prevent hasty and ill-considered legislation.” 
    Id. (citing Metro
    Gov’t of Nashville and Davidson County v. Mitchell, 539
    S.W .2d 20, 21 (Tenn. 1976)).
    23
    The record shows that Mr. Johnston was not allowed to address the Parks Board because the Board determined
    that it did not timely receive his request to speak at either of its meetings. He argues that the Board’s refusal to let him
    speak amounted to a violation of his clients’ rights of free speech and due process. Mr. Johnston contends that he relied
    on a rule set out in the 2002 Policy M anual of the Parks Board, which only requires that the request be received at least
    five days prior to the Board meeting in question. For its part, the Board asserts that it applied an amended rule which
    is available from the Parks Department and on line, and which requires individuals wishing to speak to submit their
    written requests no later than fourteen days before the scheduled meeting.
    -24-
    State v. Scott, 
    678 S.W.3d 50
    , 52 (Tenn. 1984)(citing H & L Messengers Inc. v. City of Brentwood,
    
    577 S.W.2d 444
    , 451 (Tenn.1979)).
    Where a governmental body allows the public to speak at its meetings, it may impose
    reasonable regulations in order to avoid disruption or delay in the performance of its duties. Lewis
    v. Cleveland Municipal Airport Authority, No. E2007-00931-COA-R3-CV, 
    2008 WL 4254359
    at
    *14-15 (Tenn. Ct. App. September 11, 2008)(Tenn. R. App. P. 11 app. den. April 27, 2009)(holding
    that a county had the right to set a reasonable limitation on persons who address it or, otherwise, “the
    meetings would be chaotic.”)
    In Whittemore v. Brentwood Planning Commission, 
    835 S.W.2d 11
    (Tenn. Ct. App. 1992),
    this court reviewed an approval of a regional shopping mall over the heated objections of
    neighboring landowners. The lengthy review process included numerous meetings at which the
    neighbors communicated their support or opposition to the project. At one meeting, the planning
    commission declined to hear further public comment, and its chairman directed that an audience
    member be removed from the room. This court rejected the argument that the manner in which the
    planning commission dealt with public comment was a violation of due process, and ruled that “[t]he
    forcible removal of a lawyer from one of the planning commission’s meetings in 1986 simply does
    not taint the entire process.” Whittemore v. Brentwood Planning 
    Commission, 835 S.W.2d at 18
    .
    Furthermore, Petitioners cannot deny that Ms. Walker’s and Ms. Richardson’s attorney was
    able to submit written materials to the Parks Board and that other similarly-situated citizens
    expressed the same concerns at the Parks Board’s meetings and various other public meetings or that
    their attorney was unable to address the Planning Commission or the BZA when they considered
    the proposal. We find no indication that Ms. Walker and Ms. Richardson, through counsel, would
    have presented information that differed significantly from that presented by other speakers. It
    appears from the record that the Parks Board conducted a full and fair hearing on the issues before
    it. In any event, Petitioners cannot show that denial of the attorney’s request to speak at the Parks
    Board meetings had any legal effect on the Council’s approval of the lease. The Parks Board’s role
    was to simply recommend; several other entities and officials were later involved in the process that
    led to the approval; and citizens had every opportunity to make their concerns known to those
    officials, including the Council.
    Petitioners also allege that the Parks Board violated the Open Meetings Act, Tenn. Code
    Ann. § 8-44-101 et seq., when it used e-mail to circulate the exact text of a modification to the
    proposed Agreement, which modification the Parks Board had agreed to at an open meeting. They
    do not claim, however, that the Board violated the Open Meetings Act when it voted to recommend
    approval of the Agreement, subject to the as yet-to-be-drafted modification.
    The Act declares that it is the policy of the state that “the formation of public policy and
    decisions is public business, and shall not be conducted in secret.” Tenn. Code Ann. § 8-44-101(a).
    In order to effectuate that policy, the Act states that all meetings of any governing body “are
    declared to be public meetings, open to the public at all times...” Tenn. Code Ann. § 8-44-102(a).
    “Meeting” means “the convening of a governing body or a public body for which a quorum is
    required in order to make a decision or to deliberate toward a decision on any matter.”
    Tenn. Code Ann. § 8-44-102(b)(1)(E)(2).
    -25-
    The record shows that the Parks Board voted at a meeting that was open to the public to
    recommend approval of the lease Agreement subject to a specific modification in the language of
    Article 6 to make it absolutely clear that Metro, through the Parks Board, had to be the ultimate
    gatekeeper for the use of the park and the controller of scheduling. The Board recommended
    approval of the Agreement, contingent on the suggested modification to Article 6.
    The final draft of Article 6 was subsequently prepared and submitted to the Parks Board
    members via e-mail. The Board member who requested the modification then sent an e-mail to the
    other members stating, “the amendment satisfies my concerns. Thank you.” Petitioners do not claim
    that the modified Agreement deviated in any respect from what the Board had agreed to. Indeed,
    it does not.
    It appears to us that the Parks Board made its substantive decision regarding the provision
    it wanted included in the proposed Agreement at an open meeting. There was discussion of the
    intent of the additional provision, including agreement to its inclusion by Belmont. We cannot read
    the Open Meetings Act to require another meeting for the Board members to vote on specific
    language drafted by its attorneys which, undeniably, accomplishes the decision made at the meeting.
    In other words, since the Board had already assented to the proposed modification at a public
    meeting, it was not required to convene another meeting, nor to submit the Agreement to yet another
    vote on recommendation.
    Finally, there is no allegation that the Council acted in any way that violated the Open
    Meetings Act. From the time the Agreement was originally proposed until its approval by Council,
    many modifications were made to the Agreement. It was within the discretion of the Council to
    accept or approve those modifications since they were incorporated into the final Agreement.
    Petitioners cannot establish any basis to set aside Council’s approval of the Agreement based on the
    Parks Board’s actions.
    VIII. CONCLUSION
    The judgments of the trial court in all four cases are affirmed. We remand these cases to the
    Chancery Court of Davidson County for any further proceedings that may be necessary. Costs on
    appeal are taxed to the appellants, Sandra Walker, Janice Richardson, and Organized Neighbors of
    Edgehill, in accordance with the costs assessed in each of the separate appeals.
    _____________________________________
    PATRICIA J. COTTRELL, P.J., M.S.
    -26-
    

Document Info

Docket Number: M2007-01701-COA-R3-CV

Judges: Judge Patricia J. Cottrell

Filed Date: 12/30/2009

Precedential Status: Precedential

Modified Date: 10/30/2014

Authorities (29)

Public Citizen v. Department of Health & Human Services , 795 F. Supp. 1212 ( 1992 )

Hourly Compensation Rate of Court Appointed Counsel v. ... , 937 S.W.2d 842 ( 1996 )

McCallen v. City of Memphis , 786 S.W.2d 633 ( 1990 )

Fallin v. Knox County Board of Commissioners , 656 S.W.2d 338 ( 1983 )

Arnold v. Tennessee Board of Paroles , 956 S.W.2d 478 ( 1997 )

Hoover Motor Exp. Co. v. Railroad & Public Utilities ... , 195 Tenn. 593 ( 1953 )

Wilson County Youth Emergency Shelter, Inc. v. Wilson County , 13 S.W.3d 338 ( 1999 )

Willis v. Tennessee Department of Correction , 113 S.W.3d 706 ( 2003 )

Watts v. Civil Service Bd. for Columbia , 606 S.W.2d 274 ( 1980 )

Harding Academy v. Metropolitan Government of Nashville & ... , 222 S.W.3d 359 ( 2007 )

H & L MESSENGERS, INC. v. City of Brentwood , 577 S.W.2d 444 ( 1979 )

Stalcup v. City of Gatlinburg , 577 S.W.2d 439 ( 1978 )

City of Lebanon v. Baird , 756 S.W.2d 236 ( 1988 )

McCarver v. Insurance Co. of the State of Pennsylvania , 208 S.W.3d 380 ( 2006 )

Harding Academy v. Metropolitan Government of Nashville & ... , 207 S.W.3d 279 ( 2006 )

Yokley v. State , 632 S.W.2d 123 ( 1981 )

State Ex Rel. Moore & Associates, Inc. v. West , 246 S.W.3d 569 ( 2005 )

Bernard v. Metropolitan Government of Nashville & Davidson ... , 237 S.W.3d 658 ( 2007 )

Weaver v. Knox County Board of Zoning Appeals , 122 S.W.3d 781 ( 2003 )

BellSouth Telecommunications, Inc. v. Greer , 972 S.W.2d 663 ( 1997 )

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