Wednesday, March 14, 2018

Howell v Farris, Tenn App 2018

This very interesting case involves an appeal from a decision of the local legislative body in Bolivar denying building permits to the property owner. The denial of the building permits was based on the failure of the owner to get a contractors license as required by Tennessee law. The suit requested the issuance of a statutory or common law writ of certiorari,  and liquidated damages based allegedly on the delay caused by the city by refusing to issue to permits. At a later time, the complaint was amended to include a request for inverse condemnation by regulatory taking.

The Court of Appeals initially considered whether the appropriate mechanism for appeal was the common law or statutory writ of certiorari. Based on innumerable cases here in Tennessee, the court easily concluded that since the local legislative body was acting as a board of zoning appeals at the time that it upheld the denial of the building permits, that the proper means of challenging that decision was pursuant to the common law writ of certiorari. Remember that the statutory writ of certiorari allows the trial court to conduct an entirely new hearing, including the admission of new evidence is the parties so desire whereas the common law writ only allows the trial court to review the record of the proceedings below to determine if the administrative body acted arbitrarily or capriciously.

The Court of Appeals, citing Judge Ben Cantrell's well-known and definitive article (Review of Administrative Decisions by Writ of Certiorari in Tennessee, 4 Memphis State University Law Review 19, 28 (1973)), held that the statutory writ was only available when (1) the order of the administrative body has no specific provision for judicial review; (2) the function performed by the lower tribunal is essentially judicial in nature; and (3) the order for which review is sought finally determines the rights of the petitioner.

The difficulty with this framework is the use of the term "judicial." Who's to say that a board of zoning appeals ask any less "judicially" then the historic zoning commission?

Judge Cantrell offers some insight into that question. "Apparently the court will sanction the granting of review by the statutory writ with its trial de novo only where the administrative tribunal is acting as to the petitioner much like a court would; namely, the individual petitioner has something like a private property right (e.g., a license, a permit, an office) which by its order, the administrative body may take away." Once again, think of it in the context of a zoning board: most of the time, the zoning board is determining whether or not to grant some specific type of relief to an applicant, a variance, or a special right to use property such as by a special exception or conditional use permit. If the board denies the application for the variance or conditional use permit, the applicant has not lost any species of right – the applicant never had the right to use his/her property for that purpose in the first place. Thus, arguably, nothing has been lost.

In this case, the question was whether or not the applicant had satisfied the requirements for the building permit and the legislative body/board of zoning appeals determined that he had not because of his failure to comply with the Contractors Licensing Act. While reading the language of the Court of Appeals in this case may not help clarify the distinction, Judge Cantrell's observations back in 1973 most apt.

The second issue was whether or not the case became moot when during the pendency of the litigation, the property owner finally was able to obtain the building permits. At stake worthy numerous other claims that the plaintiff had attempted to put before the court arising out of the denial of the permits. The Court of Appeals affirmed the decision of the trial court finding the whole matter moot by issuance of the permits. But it went further: "it has been consistently held that the common law writ of certiorari, which is appellate in nature, is incompatible with an original action, and the two cannot be brought together." In other words, all of the other claims, request for injunction, removal action, the takings case, were all inappropriately joined with the common law writ of certiorari and should have been dismissed by way of a motion to dismiss early on in the litigation. I will come back to this point just a second.

Finally, the court addressed specifically the regulatory taking claim. While the trial court concluded that the taking claim had to be dismissed, it was based on the fact that the Tennessee Criminal Court of Appeals had ruled that withholding the building permits because of a lack of compliance with the Contractors Licensing Act was appropriate, the Court of Appeals concluded that it should have been dismissed because it was not proper to join the regulatory taking case with a petition for the common law writ of certiorari.

Citing among others, Goodwin v Metro Board of Health, 656 S.W. 2d 383, 387 (Tenn. App. 1983), the Tennessee Court of Appeals held that since the plaintiff had requested the issuance of a common law writ of certiorari, a form of appellate review, his claims invoking the original jurisdiction of the Chancery Court, including his regulatory taking claim, could not be joined in the same proceeding. Therefore, the regulatory taking claim had to be dismissed.

Let me make two quick observations concerning the ability to join original action with a common law writ of certiorari. The Goodwin case and its progeny have been around as long as I practice law. It has never made any sense to me. What is there about joining an original cause of action such as a regulatory takings case with a common law writ of certiorari which disqualifies the Chancery Court from hearing them both? Are we saying that the Chancellor's are not equipped to handle a multiplicity of actions? That doesn't make much sense. Certainly both our chancery court and circuit court judges are entirely capable of handling a case which is in Foreman appellant action, and a case which is informed and original action, in the same matter. Is there some difficulty, hearing can be held separately to make disposition easier. But that doesn't seem to be any reason why the Chancellor or Circuit Court judge or these issues all at once in the same proceeding.

However, since the Goodwin doctrine has been around for at least 35 years now, a far safer alternative for counsel is to simply file two cases. First, file the administrative review via the common law writ of certiorari, and then file a second case seeking whatever other types of original relief the client might be entitled to. Take this case for example. If the common law writ of certiorari had been filed first, and then immediately after that, another suit for regulatory taking, injunctive relief damages, on whatever other theories might be available, the Goodwin doctrine would be avoided and the client would be entitled to pursue whatever relief might be available.

The attorney for the petitioner (plaintiff) must remember that the petition for certiorari must be filed within 60 days after the entry of the decision by the Board of Zoning Appeals. That's why it is important to go ahead and file the petition for certiorari first, because ordinarily the statute is for the other types of tortious misconduct is longer.

Finally, it is worth noting apps, if the court dismisses claims properly certiorari case he may be some relief pursuant to the saving statute here in Tennessee. I don't know of any case law on that issue, but if there's nothing else available, that would probably be worth arguing to see what our appellate courts would conclude as to that issue.

Tuesday, March 6, 2018

Ward v Metro Board of Zoning Appeals

The Davidson County Chancery Court has upheld the Metro Board of Zoning Appeals which agreed with Bill Herbert, the Metro Zoning Administrator, that the Glencliff Methodist Church should be granted an accommodation to allow 22 "tiny homes" for the homeless on the church property. Metro and the Church argued that the accommodation was required to avoid a substantial burden on the religious beliefs of the  Church and its members. The Church and its members sincerely believe that part of their religious duty is to help the homeless and other disadvantaged people.

The neighbors filed the appeal arguing that the accommodation was not essential and that the land use regulations were compelling in nature. The latter argument was undercut by the decision of the Board, which did not find that the regulations were compelling.

The Court first found that the petitioners did have standing to sue because they lived close to the church property based on the certiorari petition.

Furthermore, the Court concluded that the petitioners failed to establish by clear and convincing evidence, under the facts of this case, that enforcing the neutral residential zoning laws and subdivision regulations against the Church was essential to furthering a compelling governmental interest. The Metropolitan Government did not assert that any such compelling interest exists under the specific facts of this case.   The record contained material evidence supporting the decision of the Board of Zoning Appeals, and  therefore the court upheld its decision.

Most likely this case will be appealed to the Tennessee Court of Appeals. There is, as of yet, very little case law interpreting the Tennessee statute, and this case should offer guidance to legal counsel as to how the statutory provisions should be construed.

Saturday, February 24, 2018

Discriminatory Zoning Decisions: Islamic Mosques

I saw this interesting post a few days ago discussing this issue of discriminatory zoning decisions, which comes up from time to time and over the last few years has been especially troublesome in the context of Islamic Mosques. We have certainly had a very significant case here in Tennessee, but the same concerns and issues have come up all over the country. I have commented on these issues on several posts in this blog. Unfortunately, the issues seem to veer away from the relevant land use planning and zoning principles into concerns with which have no place in administrative proceedings.

Friday, February 23, 2018

Municipal Websites as Notice of Zoning Changes

There is a new proposed bill pending before the General Assembly which would allow municipalities to give notice of zoning changes by giving notice of the required public hearing on the municipal website. While this seems like a very reasonable idea, perhaps notice should be required both on the website and in a newspaper as well. Currently it is required either in the musical journal, whatever that might be, or in a newspaper of general circulation. Adding a website requirement will certainly be helpful in most instances, particularly in the larger cities. See House Bill 2226.

Thursday, February 22, 2018

Metz v Metro Nasvhille

1st Case:  2017 WL 4677248
2nd Case:

In addition take a look at this Tennessean article.

These two cases involve a challenge by neighbors to a 96 unit affordable apartment complex proposed in Antioch. Once again, these cases reinforce the very common errors that are made by counsel for petitioners in a writ of certiorari case: failing to file within 60 days of the decision of the administrative body, and/or failing to have the petition verified by the petitioner(s).

A preliminary master development plan was approved on March 24, 2016 by the Metro Planning Commission, and the minutes were signed and entered on April 14, 2016. A rehearing was requested and heard on April 28, 2016; the Planning Commission denied the request and the minutes for the meeting were entered on May 12, 2016.

On May 16, the petitioners filed a common law writ of certiorari challenging the March 24, April 14, and May 12 decisions. Neither the original petition nor several amended petitions which were filed on behalf of the petitioners were verified by oath as required by Tennessee law.

On August 5, 2016, Metro Nashville filed a motion to dismiss which the trial court granted. The petitioners filed a motion to amend the petition on August 15, which was verified an otherwise comported with the procedural requirements of the common law writ of certiorari.

In the first case reviewed by the Tennessee Court of Appeals (citation above), the trial court’s decision was upheld. Once the 60 day time frame had elapsed, without the petition having been corrected, the trial court lost jurisdiction and could no longer grant a motion to amend; therefore, the case had to be dismissed for lack of compliance with the procedural requirements of the common law writ of certiorari

An additional argument in the first case was whether or not the suit papers could be considered as a declaratory judgment rather than as a common law writ of certiorari. The difficulty with this argument is that in reviewing a master development plan within a planned unit development or a specific plan, under the Metro Zoning Ordinance, the Planning Commission makes an administrative decision by applying existing law through a given set of facts. The planning commission does not create new law. The common law writ of certiorari applies to review an administrative decision which applies existing law to a development proposal; declaratory judgment action is available to review a proposed change in the law, such as a zoning change (from, let’s say, a residential zoning district to a commercial zoning district).

The court cited McFarland v. Pemberton, 2017 WL 4279199, at *22, 28-29 (Tenn. Sept.20, 2017), for this authority; this case is an extremely interesting case applying this doctrine and explaining the difference between the common law writ in a declaratory judgment action.

However, in addition to reviewing the McFarland case, counsel for petitioners in a land use planning matter might consider suing both ways, that is, filing a petition for common law writ of certiorari, properly verified and filed within 60 days of the administrative decision, as well as filing a declaratory judgment action if there is any question that the case could be filed on my are not the other. By filing both types of cases, separately, the attorney hopefully avoids these difficulties.

But it cannot be emphasized too much, that the petition for common law writ of certiorari must be verified by the petitioner, that is the petitioner must swear that the facts alleged in the petition are true to the best of the petitioner’s knowledge information and belief. Furthermore, the petition must be filed within 60 days of the decision of the administrative body. In zoning cases, for the most part, the planning commission or the board of zoning appeals are the administrative bodies making decisions although in some instances, the local legislative body may make an administrative decision itself so that the common law writ of certiorari is applicable. There are other requirements related to the common law writ, but these are the two that are most often missed and lead to dismissals of cases which might otherwise have some merit.

A second lawsuit was filed on December 27, 2016 challenging the decision on April 28, 2016. As the Court of Appeals ruled several days ago in reviewing the trial court decision to dismiss the petition for writ of certiorari, once again because the lawsuit was not filed until well after 60 days had already expired, the lawsuit was filed too late, and the trial court lost jurisdiction. Therefore, the trial court properly dismissed the petition for writ of certiorari.

Finally, on October 13, 2016, the planning commission approved the final site plan, the minutes for which were entered on October 27. This decision was challenged by the same suit filed on December 27, 2016. Although it would appear that the filing of the common law writ was also beyond the 60 days (it looks to me like the petition was filed 61 days after the entry of the minutes on October 27), the court did not address that issue but looked at whether or not the approval of the final details of the development plan was the final judgment of the Planning Commission. It concluded that it was not; the Court of Appeals decision was that the March 24 decision concerning the preliminary master development plan was the final discretionary judgment of the Planning Commission and that the final details of the site plan, approved in October, was simply a ministerial decision from which an appeal could not be taken.
The Commission’s approval of the master development plan on March 24, 2016, created legally binding, enforceable restrictions within the Forrest View PUD, and thus, it constituted the Commission’s final judgment or order. As to the final site plan approval on October 13, the Developer was entitled to the Commission’s approval as long as the final site plan complied with the master development plan. In other words, the October 13 decision was not discretionary. Accordingly, the clock for challenging the Commission’s decision started to run on April 14, 2016, when the Commission entered the minutes for the March 24 decision. Petitioners filed their writ of certiorari on December 27, 2016, which fell outside the sixty-day deadline. As a consequence, the trial court did not have subject matter jurisdiction to review the decision. 
The court cites an interesting similar case in the area of subdivision approval, Save Rural Franklin v. Williamson Cty. Gov’t, 2016 WL 4523418, at *6 (Tenn. Ct. App. Aug. 26, 2016), which essentially holds that waiting until final approval of a subdivision plat is too late to initiate a challenge to the decision of the Planning Commission. Rather, in the subdivision context, the decision must be challenged from the preliminary plat approval.

This decision by the Court of Appeals seems eminently reasonable. If the challenge is to the basic layout and overall design of a development, it should occur at the time that the overall design is approved. Failing to appeal from that decision within 60 days bars further review. Once the final details are submitted to the planning commission in accord with the previously approved design, it should be too late to file an appeal concerning the overall design. However, I would note, that if there is a question as to whether or not the details are consistent with the overall design, there might be an avenue to appeal concerning whether the site plan is appropriate given the previous approvals. In this case however, the challenge was clearly to the overall design of the development and what was going to take place there. The minor details reflected on a final site plan were not really at issue.

In any event, the main lesson to take away from these two cases is that a common law writ of certiorari must be based upon a petition which has been verified by the petitioner, and filed within 60 days of the administrative decision which it challenges. If there’s a question, both a common law writ and a declaratory judgment action can be filed. If there’s any question about whether the lawsuit should be filed earlier or later, it is always best to file early. Certainly, if the lawsuit is filed too early and it is not appropriate at that time, the court can dismiss and a later case may be filed. Waiting too late to file the appeal has the effect of preventing any appeal at all.