IN THE CHANCERY COURT FOR SU~INER COUNTY, TENNESSEE

AT GALLATIN

MARY JOYCE LONG SUMLYIERS, )CHERYL MAPLESDEN, )LAWRENCE T. MAPLESDEN, )JEFFERY L. SCHROEDER, )DARLAS R. SCHROEDER, )ROSET.ANKENBAUER, )THOMAS ALLEN ANKENBAUER, and )SUMNER COUNTY CONCER1~ED CITIZENS,)

)Plaintiffs, )

)VS. ) NO. _

)CITY OF MILLERSVILLE, acting by and )through its Board of Zoning Appeals; )J.D. STEVENS, Trustee, and )ADVANCED PROPANE, INC., )

)Defendants. )

PETITION FOR \VRIT OF CERTIORARI

The Petitioners, MARY JOYCE LONG SUMMERS, CHERYL MAPLESDEN,

LAWRENCE T. MAPLESDEN, JEFFERY L. SCHROEDER, DARLAS R.

SCHROEDER, ROSE T. ANKENBAUER, THOMAS ALLEN ANKENBAUER and

SUwfNER COUNTY CONCERl."JED CITIZENS, hereby petition this Court for a Writ of

Certiorari, and allege the following information for the issuance of the Writ:

1. The Plaintiff, l'vIARYJOYCE LONG SUMMERS, is a citizen and resident

of Sumner County, Tennessee, and is a taxpayer in, and is the owner of certain property,

a portion of which is used for residential purposes, located in the City of Millersville.

Tennessee. being Sumner County Tax Map 140, Parcel 083.00. Plaintiffs property is

adjacent to the subject property hereinafter described.

2. The Plaintiffs, CHERYL :vIAPLESDEN and LA.WRENCE T.

MAPLESDEN, are citizens and residents of Sumner County, Tennessee, who reside and

own property at 2075 Katherine Drive, Goodlettsville, Sumner County, Tennessee being

Tax Map 140P, Grp. G, Parcel 011.00 which property is located approximately 2,000 feet

from the hereinafter described subject property, the Plaintiff MAPLESDENS being

neighboring property owners.

3. The Plaintiffs, JEFFERY L. SCHROEDER and DARLAS R.

SCHROEDER, are citizens and residents of Sumner County, Tennessee, who reside at

2071 Katherine Drive, Goodlettsville, Sumner County, Tennessee, being Sumner County

Tax Map 140P, Grp. G, Parcel 012.00 which property is located approximately 2,000

feet from the hereinafter described subject property, the Plaintiffs SCHROEDER being

neighboring property owners.

4. The Plaintiffs, THOMAS ALLEN ANKENBAUER and ROSE T.

ANKENBAUER, are citizens and residents of Sumner County, Tennessee, who reside at

2079 Katherine Drive, Goodlettsville, Sumner County, Tennessee, being Sumner County

Tax Map 140P, Grp. A, Parcel 002.00 which property is located approximately 2,000

feet from the hereinafter described subject property, the Plaintiffs SCHROEDER being

neighboring property owners.

5. The Plaintiff, SUMNER COUNTY CONCERNED CITIZENS, is an

unincorporated association located in Sumner County, Tennessee, which was formed for

the purpose of objecting to the hereinafter described re-zoning and uses on the hereinafter

described subject property. Members of SUMNER COUNTY CONCERNED

CITIZENS are adjoining and neighboring property owners to the hereinafter described

subject property. The President of SUMNER COUNTY CONCERNED CITIZENS is

Carl L. Sumruld.

6. Defendant, CITY OF MILLERSVILLE, Sumner County, Tennessee

("MILLERSVILLE") is a Tennessee municipal corporation organized under the

provisions of T.CA. 6-18-10, et seq. The City Hall for the MILLERSVILLE is located at

1246 Louisville Highway, Millersville, Tennessee 37072. MILLERSVILLE is located

within Sumner and Robertson Counties. l'vIILLERSVILLE has created a Board of

Zoning Appeal which has the power to grant special exceptions in accordance with

Section 90.58, and other Sections, of the City of Millersville Zoning Ordinance.

7. The Defendant, J.D. STEVENS, Trustee, ("STEVENS") is listed of record

as the owner of the subject property hereinafter described as being Sumner County Tax

Map 140, Parcels 84.01 and 84.02, (the "SUBJECT PROPERTY"). The address of

record for Defendant, J.D. STEVENS, Trustee, is 3937 Gallatin Road, Nashville,

Tennessee 37216, which is in Davidson County.

accordance with rCA. 27-9-104.STEVENS is a Defendant in

8. The Defendant, ADV ANG:ED PROPANE, INC. ("ADVANCED

PROPANE") is a Tennessee corporation located in Wilson County, Tennessee.

Defendant, ADVANCED PROPANE, INC., is made a party to this cause of action in

accordance with rCA. 27-9-104, in that it proposes to build a propane distribution

facility on the SUBJECT PROPERTY.

9. The Plaintiffs are aggrieved by the action of the Millersville Board of

Zoning Appeals approving a propane distribution facility on the SUBJECT PROPERTY

10. On or about 1998, MILLERSVILLE adopted the City of Millersville

Zoning Ordinance ("ZONING ORDINANCE"). The stated purpose of the ZONING

ORDINANCE "is to promote the public health, safety, morals, convenience, order,

prosperity and general welfare", including, among other specific purposes, " reducing

hazards from fire, flood, and other dangers." The Court is requested to take Judicial

Notice of the ZONING ORDINANCE in accordance with Tennessee Rules of Evidence,

Rule No. 202(b)(3).

11. The ZONING ORDINANCE provides for Use Classifications divided into

districts. One of the classification districts provided in the ZONING ORDINANCE is for

Industrial Districts.

12. Section 90-211 of the ZONING ORDINi ...NCE provides that the goals and

purposes of industrial districts "are designed to promote and protect the health, safety and

morals" and the stated specific purposes in Section 90-211(3):

"(3) To encourage industrial development which is free from danger offire, explosions, toxic or noxious matter, radiation, smoke, dust or otherparticle matter, and other hazards."

13. Further, Section 90-211 (4) of the ZONING ORDINANCE, under

Industrial Districts provides the following additional specific purposes:

"(4) To protect adjacent residential and commercial areas, and to protectthe labor force and other establishments engaged in less offensive type ofindustrial and related activities by restricting those industrial activitieswhich involve danger of fire, explosions, toxic or noxious matter,radiation, smoke, dust or other particular matter, and other hazards ...."

14. On July 18,2011 an "Application for Rezoning" was submitted on behalf

of Defendant STEVENS to rezone property located at 107 Long Drive in Millersville,

being Sumner County Property Map 140, Parcels 84.01 and 84.02, consisting of "ten (10)

acres", from LI-1 to 1-2, and as stated in the Application: "to add more uses allowable ie:

propane tank storage".

15. Also on July 18, 2011 an "Application for a Special Exception" was

submitted on behalf of ADVANCED PROPANE for Lot 1 Millersville Industrial Park,

107 Long Drive, consisting of 2.0 acres "requesting a special exception to construct a

propane distribution center". At the time of submission, the Application did not meet the

criteria established under Section 90.58 of the Millersville Zoning Ordinance, nor did the

right of a special exception exist for that use at the time the Application was submitted.

16. On July 19, 2011, one day after the submission of the Application for

Rezoning, the MILLERSVILLE Board of Commissioners considered on first reading

Ordinance 11-591, an Ordinance to "rezone a portion of Sumner County Map 140, Parcel

84.01, property on Long Drive from LI-1 to 1-2". Two readings of an Ordinance and

public hearing are required before a final adoption.

17. The MILLERSVILLE Board of Commissioners also passed on first

reading Ordinance 11-590 an Ordinance to allow propane refueling stations as a special

exception in the Industrial I-2 zoning district at its regular meeting of July 19, 2011.

19. Eventhough no property in the City of Millersville was zoned 1-2, nor had

there been a second reading or public hearing on a rezoning of any property to 1-2, a

public notice was published in the Sumner AM. edition of the Tennessean on Sunday,

July 24, 2011 calling a public hearing before the rvHLLERSVILLE Board of Zoning

Appeals to be held on Thursday, August 18,2011 at 5:30 p.m. at Millersville City Hall.

20. The public notice called a public hearing on a "Propane Distribution

Center", while Ordinance 11-590 uses only the term "Propane Refueling Station", further

causing confusion to the public. Further the terms lead some citizens to believe the

proposed facility is a small commercial facility to fill small tanks for household propane

use in grills, and not a facility with multiple 30,000 gallon propane tanks.

21. The Board of Zoning Appeals of MILLERSVILLE has an approved "BZA

2011 Calendar of Events". The approved document establishes meeting dates,

application deadlines, newspaper deadlines, and final packets issued dates for the

MILLERSVILLE Board of Zoning Appeals. The approved Calendar of Events provides

that the meeting date for an Application submitted on July 18, 2011 would be September

6, 2011, not August 18, 2011. The Calendar of Events is published to the public and the

public and Applicants are required to abide by the approved Calendar of Events.

22. The MILLERSVILLE Board of Commissioners failed to abide by the

established procedures, rules, and Ordinances in the adoption of the Zoning Ordinance

rezoning property from LI-l to 1-2 located at 107 Long Drive. The failure of the

MILLERSVILLE Board of Commissioners to properly rezone the SUBJECT

PROPERTY is addressed in the pending matter in the Chancery Court for Sumner

County, Tennessee, Case No. 20 11-CV -449 involving the instant parties.

23. On August 18, 2011, just two days after the adoption on final reading of

Ordinance 11-590 to permit propane refueling stations as a special exception in the 1-2

zoning district, and Ordinance 11-591 an Ordinance to rezone property on Long Drive,

identified as Sumner County Map 140, Parcels 84.01 and 84.02, from LI-l to 1-2, a

Public Hearing was held by the MILLERSVILLE Board of Zoning Appeals to grant a

permit as requested by Defendant ADVANCED PROPANE to build up to four 30,000

gallon propane tanks for a propane distribution center to serve a large geographical area

believed to be in Northern Middle Tennessee and Southern Kentucky.

24. The procedures of the MILLERSVILLE Board of Zoning Appeals

requires a sign to be placed on the subject property to notify citizens of a public hearing

on the property, however, the sign on the SUBJECT PROPERTY was not visible in that

it had been knocked down or otherwise placed on the ground, thereby denying citizens

knowledge of the upcoming public hearing.

25. At the MILLERSVILLE Board of Zoning Appeal public hearing

conducted on August 18, 2011, those citizens present complained that proper public

notice was not given.

26. According to the Minutes of August 18, 2011, certain members of the

MILLERSVILLE Board of Zoning Appeals stated as follows:

a. "Mr. Moore stated a second time that he did not understand

why we are here; he said he feels that these people had been blindsighted."

b. "Mr. Joe Durham stated his concern as to whether we were

set up to handle an emergency. He stated that Jim (Lech) and everyone

else involved in this should do some more leg work. More work had to be

completed before he feels clear to vote on it. He feels he does not have

enough information. He doesn't think we are set up in our Fire

Department for this."

c. "Chairman Uldrich stated that he also felt the adjacent land

owners should have been notified."

27. On August 18, 2011, the MILLERSVILLE Board of Zoning Appeals

postponed action on the request until October 6,2011.

28. On October 6, 2011, the MILLERSVILLE Board of Zoning Appeals

reconvened its meeting to consider granting the special exception on the SUBJECT

PROPERTY. The meeting was held in the City Commission meeting room ofMillersville City Hall.

29. Approximately 200 citizens were present at City Hall in opposition to the

granting of a special exception, however, the Millersville officials limited the attendance

in the meeting room to only approximately 50 persons with the remainder required to

remain in the hallway or in the parking lot of City Hall.

30. At the continuation of the hearing, and notwithstanding the comments

made by Board members at the meeting on August 18, 2011 regarding the lack of proper

public notice. and notwithstanding the over 200 persons in attendance in opposition to the

proposal, the Chairman of the Board of Zoning Appeals limited the speakers in

opposition to the Attorney for the Plaintiff, CONCERNED CITIZENS OF SUMNER

COUNTY eventhough many present desired to be heard.. The Attorney for the

CONCERNED CITIZENS OF SUMNER COUNTY strenuously objected to thislimitation of public input.

31. At the continuation of the public hearing conducted on October 6, 2011

Ken Widener, Director of Sumner County Emergency Management stated (a) that he had

been the Director of Sumner County Emergency Management for the past twelve years;

(b) that he had received training on fire and hazardous material; (c) that the placement of

a 30,000 plus gallon propane distribution facility on Long Drive in Millersville poses a

hazard to surrounding property notwithstanding the fact that regulatory standards exist;

(d) that the placement of the propane distribution facility would pose a possible

interruption to Interstate 65 and U.S.31 W in the event of an accident; (e) that the

placement of the proposed propane distribution facility poses an undue and unnecessary

risk to the safety of persons and property safety of the residents living within a one mile

radius of the propane facility due to the lack of evacuation routes, especially from the

Goodlettsville side; and (e) that the propane distribution facility would be better suited

for a more rural area in light of public safety.

32. Notwithstanding the testimony of the Emergency Management Director

regarding the hazards of a propane distribution facility, the MILLERSVILLE Board of

Zoning Appeals members present voted unanimously (4-0) to grant the special exception.

One of the members of the Board of Zoning Appeals who voted to approve the special

exception, was not present at the original public hearing on August 18, 2011.

33. Based upon the statements contained in this Petition, and other

irregularities as may be shown by the public record, and further based upon the

allegations contained in the Complaint pending in the Chancery Court for Sumner

County, Case No. 2011-CV-449, the decision of the MILLERSVILLE Board of Zoning

Appeals granting the application was illegal, arbitrary and/or capricious.

34. The MILLERSVILLE Board of Zoning Appeals as of the filing of this

Petition has yet to approve the Minutes of the meeting of October 6, 2011, granting the

special exception.

35. The Plaintiffs are aggrieved by the decision of the MILLERSVILLE

Board of Zoning Appeals granting the approval to the propane refueling station.

36. The Plaintiffs have no other plain, speedy or adequate remedy.

PREMISES CONSIDERED, Plaintiffs request the following relief:

1. That a Writ of Certiorari issue, requiring the Defendant CITY OF

MILLERSVILLE, to certify and file with the Clerk & Master of this Court, the entire

record in this case, including all exhibits and all entries made in connection therewith,

including the CITY OF MILLERSVILLE Zoning Ordinance, the BZA 2011 Calendar of

Events, the MILLERSVILLE Board of Zoning Appeals Bylaws, Rules, Regulations,

Policies and Procedures, and further in particular the Transcript of the hearings held

before the MILLERSVILLE Board of Zoning Appeals on August 18,2011 and October

6, 2011; the Application of the Defendants, STEVENS and ADVANCED PROPANE,

the Minutes of the :rv:.ULLERSVILLEBoard of Zoning Appeals for the meetings held on

August 18,2011 and October 6,2011;

2. That process or notice issue to the Defendants pursuant to rCA. 27-9-

107, and should Defendants elect to answer, the answer be filed within thirty days of the

filing of the Transcript in accordance with rCA. 27-9-110;

3. That upon a hearing of this cause, the Court reverse the decision of the

MILLERSVILLE Board of Zoning Appeals; and

4. That the Court grant such further general relief as the equities of this case

may require, and as the Court deems necessary and appropriate.

THIS IS THE FIRST APPLICATION FOR A WRIT OF CERTIORARI IN THIS

MATTER.

Respectfully-submitted,/.....,...::..., ..--- ..~-.-

~ ~_,,-,,-----.,i: 1

LOUIS W. OLIVER, IIIAttorney for Plaintiffs105 Hazel PathPost Office Box 1616Hendersonville, TN 37077Telephone: 824-9131Facsimile: 264-2628

#007315

IN THE CHANCERY COURT FOR SUMNER COUNTY, TENNESSEE

AT GALLATIN

MARY JOYCE LONG SUMMERS, )CHERYL MAPLESDEN, )LA\VRENCE T. MAPLESDEN, )JEFFERY L. SCHROEDER, )DARLAS R. SCHROEDER, )ROSE T. ANKENBAUER, )THOMAS ALLEN ANKENBAUER, and )SUMNER COUNTY CONCERNED CITIZENS,)

)Plaintiffs, )

)VS.' ) NO. _

)CITY OF MILLERSVILLE, acting by and )through its Board of Zoning Appeals; )J.D. STEVENS, Trustee, and )ADVANCED PROPANE, INC., )

)Defendants. )

WRIT OF CERTIORARI

TO: CITY OF MILLERSVILLE, TENNESSE, acting by and through its' BOARDOF ZONING APPEALS

\VHEREAS, the Plaintiffs, MARY JOYCE LONG SUMMERS, CHERYL

MAPLESDEN, LAWRENCE T. MAPLESDEN, JEFFERY L. SCHROEDER, D/\RLAS

R. SCHROEDER, ROSE T. ANKENBAUER, THOMAS ALLEN ANKENBAUER and

SUrvfNER COUNTY CONCERt"JED CITIZENS, have filed a Petition for Writ of

Certiorari under the above-styled caption, asking that a Writ of Certiorari be issued to the

CITY OF MILLERSVILLE, acting by the through its' Board of Zoning Appeals, and a

Chancellor of the Chancery Court for Sumner County, Tennessee having endorsed the

Fiat directing that the Writ issue requiring you to make, certify and transmit to the Court

for examination and review the entire record in the case referenced by the attached

Petition, including all applications, exhibits and entries made in connection therewith,

and in particular, including the Transcripts of the hearings held before the

MILLERSVILLE Board of Zoning Appeals on August 18,2011 and October 6,2011, as

is all more fully set out in the Petition to which reference is hereby made.

YOU ARE THEREFORE HEREBY COMMANDED to make, certify and

transmit to the Court the entire true and correct record in the aforementioned proceedings,

had before you on file in your office, and make return of this Writ showing how you have

obeyed the same within thirty days of issuance.

WITNESS the Clerk & Master of the Chancery Court for Sumner County, this

__ day of December, 2011.

CLERK & MASTER

BY; _

IN THE CHANCERY COURT FOR SUMNER COUNTY, TENNESSEE

AT GALLATIN

MARY JOYCE LONG SUMMERS, )CHERYL MAPLESDEN, )LA'VRENCE T. J\lAPLESDEN, )JEFFERY L. SCHROEDER, )DARLAS R. SCHROEDER, )ROSE T. ANKENBAUER, )THOMAS ALLEN ANKENBAUER, and )SUMNER COUNTY CONCERNED CITIZENS,)

)Plaintiffs, )

)VS. ) NO. _

)CITY OF MILLERSVILLE, acting by and )through its Board of Zoning Appeals; )J.D. STEVENS; Trustee, and )ADVANCED PROPANE, INC., )

)Defendants. )

FIAT

Please issue the Writ of Certiorari prayed for in the attached Complaint court costs

having been paid by the Plaintiffs; this the __ day of , 2011.

CI-IANCELLOR !CLERK & MASTER