In 2002, the Board of Commissioners of Catoosa County Board rezoned certain property belonging to R.N. Talley Properties, LLC Talley from agricultural to industrial. Talley plans to lease the land to Southeastern Materials, Inc. Southeastern for construction and operation of an asphalt plant. Section 7.7.1 of the Catoosa County Code allows within an industrial district “an industry which does not cause injurious noise, vibrations, smoke, gas fumes, odor, dust, fire hazard, or other objectionable conditions unless the use has a special use permit.” Section 6.5.2 provides that the owner of property upon which certain specified uses “and any industrial or commercial use that may emit injurious or annoying noises, vibrations, smoke, dust, fumes, gas or odors is proposed to be located must obtain a special use permit before such uses are made of property.” These ordinances do not specifically mention asphalt plants. In 2005, after submitting an application for a building permit, Talley and Southeastern Appellees were informed that they were required to obtain a special use permit. However, they insisted that a special use permit was not necessary because the ordinances containing that requirement were unconstitutional. The Board informally declined to grant the permit and notified Appellees that it would consent to immediate judicial review, but it thereafter voted to require an application for a building permit in the usual manner and informed Appellees that it would not waive its defense of failure to exhaust administrative remedies. The Chief Building Official also gave notice that an application for special use permit was necessary before Appellees could go before the Planning Commission.
Although Appellees initially filed a notice of appeal to the Planning Commission, they subsequently brought suit against the County, and the Board members and Chief Building Official in their official capacities, Appellants for mandamus relief and declaratory judgment, asserting a facial constitutional challenge to sections 6.5.2 and 7.7.1. The trial court granted only declaratory relief, finding that the challenged provisions were unconstitutionally vague on their face, in that they contain insufficient objective standards and guidelines to meet due process requirements, and they give Appellants absolute and uncontrolled discretion to decide what uses require a special use permit. Appellants appeal from that order.
