2nd Circuit reviews the "equal terms" provision of RLUIPA

In an interesting new case, the Second Circuit Court of Appeals has ruled that the City of New York violated the equal terms provision of RLUIPA. This provision prohibits a “government [from] impose [ing] or implemt[ing] a land use regulation in a manner that treats a religious assembly on less than equal terms with a nonreligious assembly or institution." Keep in mind that the new Tennessee RFRA does not contain such a provisison: it only affects a regulation which "substantially burdens" religious exercise.

In the 2nd Circuit case, the church wanted to rehabilitate its building but lacked funds. It arranged a deal with a catering company to allow the use of its facilities for catering events in return for the catering company to pay for the church improvements. The city said this use was beyond the permitted uses in the zoning district and issued a notice of revocation of the church's permit. The catering business appeared to be the principal use and not merely accessory.


The church contended that two hotels in the vicinity had a similar arrangement whereby caterers used hotel facilities for events. The city issued notices of violation for the hotel caterers but the trial court found that to be a very different remedy than revocation and concluded that there was a violation of the equal terms provision.

On appeal, the 2nd Circuit upheld the lower court. All the catering activities were within the same zoning category and neighborhood, and all were significant catering activities. The city never threatened to shut down the hotel operations as it had the church. That violated the act.

This outcome is somewhat odd. It seems that the city's argument was that the catering use was not accessory to the religious use of the property. On the other hand, the city felt like a catering operation was accessory to a hotel use. Those observations generally appear to be reasonable. The court ruled against the city because the certificates of occupancy for the two hotels did not expressly include the accessory catering use. Therefore, the court concluded that the accessory catering use was illegal at the hotel locations.

But surely that misses the point. Essentially, the city was arguing that the hotel catering functions were permitted, and only needed a technical amendment to the certificate of occupancy to be in total compliance; whereas, the church catering function was simply a ruse to utilize church facilities and shoehorn in a caterer in an area where was otherwise prohibited. The analysis of the Second Circuit Court is certainly not deferential to the planning function. On the other hand, perhaps we have to expect this in the application and administration of the RLUIPA.

Third Church of Christ v New York, 2010 WL 4869763 (2^nd Cir.  Dec 2010).

Another Area Variance in NY

About 10 days ago we examined and distinguished the approach taken by the state of New York in the consideration of area variances and the approach taken here in Tennessee. The earlier entry is here.  In Rossney v. Zoning Board of Appeals of the Village of Ossining,  2010 WL 5094740 (NYAD  Dec 2010), the New York Court considered and upheld another zoning board decision to deny an area variance. This one the board found to be self-created: almost no state will allow a variance for a self-created hardship. In Tennessee, the leading case is Union Trust v Williamson County, where a variance was denied under similar circumstances.

A Better Way to Zone

I got this book for Christmas and it is very interesting reading. Nothing earth shattering for those of us who work in the field of land use, but it does pull together a number of different ideas to demonstrate how difficult and hodge-podge zoning regulations can be. The author offers several suggestions to simplify and speed up the process; unfortunately, many of them are simply politically impossible. I'll try to discuss the book, taking each chapter that I find interesting, and share some impressions.

Cheatham County Zoning Variance

The Cheatham County Board of Zoning Appeals granted a variance to a mobile home on a lot 50% of the required size (the minimum lot size is 5 acres; the variance allowed use of a 2.5 acre lot) back in November. Cheatham County Mayor David McCullough has decided to appeal the decision and I have heard that Robert Rutherford will be representing the County. See the article in the Ashland City Times.

Variances are very difficult to prove and almost impossible to defend on an appeal to a court of law. The leading case in the state is McClurkan v Metro Board of Zoning Appeals, 565 SW 2d 495 (Tenn Apps 1977), which Robert tried and won. Ordinarily, the applicant must prove some "exceptional physical feature" of the property causes a hardship (see Tenn Code Ann Section 13-7-109(3)), and usually that implies a small property with a steep slope or some other unusual feature.

Columbia considering form based zoning

According to the Daily Herald, a proposal is being discussed in Columbia to scrap the 400 page zoning ordinance (fairly recently written as I recall) and go to a form based system. As one planning blogger explains:

The basic idea is that zoning has gotten too pre-occupied with fine grained differences in land uses and has lost site of the “form” of development. The real issue may not be that the land use is inappropriate, but that the form of the building doesn’t fit in with those around it. Look around any dense urban area – particularly a downtown or a transportation hub – and you can find a very broad range of land uses. Offices, apartments, stores, condominiums, clinics, gas stations; how could any proposed use be inappropriate? This is an area where everything goes on.

On the other hand, many areas have a mixture of forms as well as land uses. Picking a predominant "form" can be more difficult than at first supposed. And of course, whatever the form, many land uses have significant impact that cannot be ignored. Finally, here in Tennessee, recall that the Non-Conforming Property Act, Tenn Code Ann Section 13-7-208 greatly restricts what a city can do with non-conforming properties. The statute protects not just uses, but building forms as well.

Form based zoning is a good tool, but not in all situations and at every location. It should be used with judgment and discretion.

Airstrip Zoning

The Arkansas Supreme Court recently reviewed a case involving the establishment and maintenance of a private airstrip or airport. The owner built the airstrip on his property for his own personal use but soon thereafter was informed that it was an airport under the terms of the zoning ordinance and illegal at that location. He appealed this decision to the Board of Zoning Appeals and the board reversed, finding that the construction was not an “airport or landing field” as defined by zoning ordinances and that the construction was for “private recreational use.” The neighbors challenged the zoning board's decision, and asked also that the airstrip use be enjoined as a nuisance. Somewhat surprisingly, under Arkansas law, a jury may be empaneled to hear an appeal of this nature (under Arkansas law it is de novo). The jury concluded that the use of the property was not an airport, not for the owner's personal recreational use, and that it was a nuisance; the court enjoined use of the property.

On appeal to the Arkansas Supreme Court, the decision to submit the zoning board appealed to her jury was upheld (based on Arkansas statutory provisions) but submission of the nuisance claim to the jury was reversed. This Supreme Court decision is interesting in that it is probably the reverse of what most states would do; most states, including Tennessee, would not permit a jury trial on issues arising out of a zoning board decision (in most states, the decision is not reviewed de novo, but is rather reviewed on the record created before the zoning Board). Most states, including Tennessee, would allow a jury trial on a nuisance claim.

Recently, Tennessee addressed the facts specific question of airstrip zoning. In Askey v Maury County Board of Zoning Appeals, 2009 WL 837890, the local zoning board concluded that the use of pasture land as an airstrip for private recreational purposes was a violation of the local zoning ordinance. On appeal, the trial court reversed, finding that the zoning ordinance did not preclude the use of the property as a grass airstrip for their private airplane for recreational use. Obviously, and as mentioned above, the trial court heard this case on the record and made its own decision without submitting the matter to a jury.

The Tennessee Court of Appeals affirmed, finding the zoning ordinance to be ambiguous and that the ambiguity must be construed in favor of the property owner.

Two interesting cases involving airstrips: but reaching apparently different results through very different means.

Clark v. Town of East Hampton

This is an interesting takings case from New York. The lawsuit was filed in state court, alleging unconstitutional takings both under the New York State Constitution and the federal Constitution. The city removed the case to federal court alleging federal jurisdiction, but the difficulty of course is that under the doctrine of Williamson County v Hamilton Bank, any and all state remedies which might be available must be exhausted before the plaintiff can file in federal court. As a result, the plaintiff, after informing the city of the doctrine in the Williamson County case, moved to dismiss for lack of jurisdiction. The court concluded that there was no jurisdiction because the state procedures had not yet been exhausted. The Westlaw citation is 2010 WL 4789417.

Local Economics and the Tax Base

Mayor Dean (no relation, by the way) has been saying for some time now that the city needs to expand its tax base, that major economic activity is leaving the city and making it more difficult for the local government to operate efficiently. Yesterday, in the Nashville City Paper, he reiterated the theme. It's a difficult proposition however; the difficulty of getting approvals for construction and zoning impacts many small and medium sized organizations, usually the strength of any local economy. As a result, companies considering Nashville may choose to locate elsewhere because of the less complicated regulatory environment. Without continuing support for those kinds of businesses, it is just easier to move elsewhere. Balancing the needs of local business juxtaposed with the concerns of neighborhoods makes keeping the tax base vital a challenge. But surely, there is enough room in the county for all.

Williamson County working on new Zoning Ordinance

Williamson County is working on a new version of its zoning regulations. A number of interesting documents are posted to the Planning Commission website which you can find here. Overall, the new proposal appears to improve upon the old by a large margin. No longer will the confusing issue of conditional use permits issued by the planning commission be present; instead, "special uses" will be considered by the Board of Zoning Appeals, where it should always have been. Instead of preliminary and final site plan review, only final review will be necessary. Once again, it is difficult to understand why preliminary site plan review is ever necessary.


Overall, the new proposed regulations appear to be a strong step in the right direction.

View Zoning in Chattanooga

Chattanooga is considering the adoption of something called "view zoning." The idea basically is to zone certain areas adjacent to scenic or historic sites and then restrict construction in those zones. The Chattanooga proposal exempts one in two family residential structures, and does not completely preclude the possibility of other types of development. Rather, it requires that a special permit be obtained from an administrative body permitting the construction after review.

The regional planning commission recommended approval. The local legislative body will vote on the proposal sometime in December.

Ransom School Update

It has been almost a year now since I last discussed the curious case of the Ransom School here in Nashville. The school was designated part of a historic zoning district several years ago and was at that time owned by Metro Nashville. A few years ago, the city decided to sell the property and immediately following the winning bid, it change the zoning reducing the density in making the development of the property much more difficult.

The successful bidder opted not to sue to set aside the transaction, but continued with development plans but at a reduced level (even though Metro Nashville retained all the money which was bid based on the original zoning) hoping to get some help from the Metro Historic Zoning Commission. The final idea was to request permission to demolish a portion of the structure to permit some additional flexibility in the construction of new residential units on the property.

Unfortunately, the MZHC did not agree, and denied the request for partial demolition. The new owners appealed that decision to Chancery Court, but ultimately lost. The case now has been appealed to the Tennessee Court of Appeals and the oral argument is set for January 18, 2011, at 1 PM.

Chancellor Perkins, who ruled in favor of the Historic Zoning Commission, felt there was sufficient evidence to uphold the decision of the commission that there was no economic hardship. The difficulty is that the economic hardship was created by virtue of the downzoning of the property by Metro Nashville. For example, by reducing the density from 18 units to 11 units, it is much more difficult given the purchase price to successfully construct new housing units and at the same time make a little bit of profit. Certainly if the reduced the density had been known at the time of the bid, a lower bid would've been made. Again, it is very difficult to understand why the Commission believes, given the fact that Metro sold the property and then reduced the density by almost 40%, that there is no economic difficulty for the new owner.

See my earlier posts on this same issue here and here.

Memphis: Union Ave United Methodist Church

The battle in Memphis over the proposed demolition of the Union Avenue United Methodist Church continues to rage on. The opponents have now filed suit, evidently not based upon land use planning principles so much as upon a deed restriction which might be an easier case to win. The Commercial Appeal reports on the lawsuit here. Over this past weekend, a number of protesters showed up to draw attention to the proposed demolition. CVS Pharmacy has purchased property and has received approval from the city to demolish the building and build a new store. A report on the protest over this weekend, complete with video, can be found here.

Area Variances in New York

From time to time, it is worthwhile to examine the various functions of municipal zoning boards in other states around the country. One state which appears to be diametrically opposed to the standards used here in Tennessee, is the state of New York. The requirements for an area variance (as opposed to a use variance, which are also permitted in New York) are as follows:

In making its determination, the zoning board of appeals shall take into consideration the benefit to the applicant if the variance is granted, as weighed against the detriment to the health, safety and welfare of the neighborhood or community by such grant. In making such determination the board shall also consider: (1) whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties created by the granting of the area variance; (2) whether the benefit sought by the applicant can be achieved by some, method
feasible for the applicant to pursue, other than an area variance; (3) whether the requested variance is substantial; (4) whether the proposed variance is will have an adverse effect or impact on the physical or environmental conditions in the neighborhood or district; and (5) whether the alleged difficulty was self-created, which consideration shall be relevant to the decision of the board of appeals, but shall not necessarily preclude the granting of the area variance.

The New York courts look at this provision as requiring a balancing of the factors by the board of zoning appeals. Notice that the words practical difficulty or undue hardship did not make an appearance in the language of the statute. Under current New York law, the zoning Board simply balances the benefits of the property owner versus the detriment to be neighboring properties. Furthermore, so long as the decision appears not to be arbitrary and capricious, and so long as the zoning board has apparently reviewed each of the factors set out in the statute, the courts are unlikely to overturn a decision of the administrative body.

In two recent cases, the New York Appellate Division upheld denials of area variances by local zoning boards. In Townsend v Zoning Board of Appeals of City of Rye, 2010 WL 4540311 (N.Y.A.D. 2 Dept. 11/9/2010) and Korzenko v Scheyer, 2010 WL 4366987 (N.Y.A.D. 2 Dept. 11/3/2010), the courts found that the zoning boards had not acted arbitrarily or capriciously, and that they had engaged in the required balancing set forth in the statute. There was a rational basis for the decision and as a result, the courts affirmed the denials of the area variances.

Of course, under Tennessee law, the applicant must demonstrate some exceptional physical feature of the property which justifies the relaxation of the zoning restrictions with regard to his property. In the absence of some exceptional physical feature, a mere balancing of the equities between the applicant and the surrounding property owners is decidedly insufficient. Ultimately, this is the heart of the argument between Alfred Bettman and Ed Bassett (of New York City) in the early stages of zoning law in the 20th century. Bassett always argued that relatively vague and general standards were most appropriate while Bettman argued that some specificity was necessary in order to focus the administrative board's on the right task. Leaving the issues of whether a variance should be granted entirely to the board's discretion amounted, in Bettman's view, to nothing more than legislative decision-making allowing one property owner to use his or her property in a way which the surrounding property owners could not.

The differences between these two approaches continues even today.

The Municipal Hearing Officer Act of 2010

The Tennessee General Assembly passed enabling legislation this year which would permit municipalities to appoint local hearing officers to hear cases involving local codes issues, including building, plumbing, residential, and property maintenance code. Zoning regulations do not appear to be included within the text of the act (although it is not clear why zoning was excluded; perhaps it will be added in the future) which may be found that Tenn. Code Ann. § 6-54-1001, and following.

Here is a list of the codes specifically referred to by the Act:

(1) Locally adopted building codes;
(2) Locally adopted residential codes;
(3) Locally adopted plumbing codes;
(4) Locally adopted electrical codes;
(5) Locally adopted gas codes;
(6) Locally adopted mechanical codes;
(7) Locally adopted energy codes;
(8) Locally adopted property maintenance codes; and
(9) Ordinances regulating any subject matter commonly
found in the above mentioned codes.

The hearing officer is to be appointed for a four-year term by the “local governing body” and serves at the pleasure of the appointing authority. The officer may be a building inspector, a plumbing inspector, an electrical inspector, an attorney, engineer, or architect, or an administrative law judge working for the State of Tennessee.

Certainly, permitting the appointment of local hearing officers for codes matters is a reasonable approach to reducing the backlog of cases which frequently obstruct local municipal courts. There are three concerns however which I have based upon the language of the Act.

First, and perhaps most importantly, it appears that the hearing officer is supposed to made a preliminary decision about the “appropriateness” of the alleged violation in advance of the hearing. “Upon determining that a violation does exist, the hearing officer has the authority to levy a fine upon the alleged violator...” I think a better approach would be to have the inspector suggest a fine, and have the hearing officer get involved only at the time of a hearing. In fact, a hearing is set only after a fine is levied according to the language of the act. Tenn. Code Ann. § 6-54-109(c). It is true that some state and federal agencies delegate the authority to an inspector to impose a fine upon of finding a violation. Those agencies normally are dealing with issues concerning life safety. Much of the enforcement action in these codes matters has little or nothing to do with life safety. Surely, a violation of the building code could be a life safety issue. But usually, the cases involve old junk cars, various types of debris, and other nuisance type situations. It doesn’t seem necessary to vest municipal codes officials with the same degree of authority as state and federal regulators looking into life safety issues.

Second, the hearing officer seems to be required to make a preliminary finding that the citation is valid. After citing the defendant, the citation must be transmitted to the hearing officer within two days. The hearing officer has seven days within which to make a determination of “appropriateness,” which is likely to be just a check to make sure of jurisdiction. But it surely seems suspect to have the same officer who will preside over the hearing to decide whether the citation was “appropriately” issued.

Third, the timing seems a bit quick. Apparently, a fine can be levied at the time that “appropriateness” is found with dispensation given if the property owner corrects the violation. The hearing officer can give the property owner between 10 and 120 days to correct the violation.

But once a fine has been levied, the hearing officer must give notice by certified mail, within seven days, of the fine and the time frame within which a remedy may be provided. That same notice sets a date for the hearing. The hearing date can be no more than 30 days after the issuance of the citation. The defendant must make a written request for the hearing within seven business days of the receipt of the hearing notice. I’m not sure that in any of the major metropolitan areas of the state that a hearing can be accomplished with anything close to this speed. Furthermore, to the extent that an attorney is going to get involved, it won’t be possible to be ready for a hearing within that short period of time. At the end of this complicated series of notifications, there may be less than a week left before the date assigned for hearing by the hearing officer. Again, it may be that the time limits should be adjusted to allow more time to prepare and defend these charges.

But it seems irregular that the hearing officer can review the “appropriateness” of the citation without notice or opportunity to be heard by the defendant, and the same hearing officer can preside over hearing to determine presumably whether the defendant is guilty of the alleged infraction.

With regard to the hearing itself, while I assume that the burden of proof would be on the city, the statute does not address that point.

The Act allows for a $500 a day fine in the case of nonresidential properties. That is in all probability one of the main reasons for this new statute. It avoids the Constitutional limitation of $50 on fines unless imposed by a jury.

Finally, the method of appeal is strikingly similar to the common law writ of certiorari. Unfortunately, this means that the hearing officer (who is not a judge and not subject to the judicial canon of ethics), will make a determination about the facts of any particular case, and the parties will never be able to get a Judge to review the actual factual findings. Because under the provisions for appeal, the court only gets to review whether or not the decision is arbitrary and capricious. This may be constitutionally suspect. At some point in the process, a defendant who is being fined $500 a day by a municipal government ought to have the right to have a real judge listen to the evidence and make a determination about the facts and law as applied to the case.

I did not know of any municipality which has yet adopted this procedure. It certainly will be interesting to see how the statute gets utilized and whether these problems come to the fore.

Regulatory Takings

The Tennessee Supreme Court released an interesting new opinion on Aug 31. It deals with the time within which a claim of overbroad zoning or planning regulation must be brought against a city government. In B & B Enterprises v City of Lebanon, the Court ruled that even in the face of an appeal from an adverse administrative decision, the plaintiff must file within one year. Failure to do so results in loss of the claim.

In B & B, a long standing dispute between the developer and the City of Lebanon, the plaintiff appealed the denial of its application for subdivision approval and ultimately won. However, after winning the appeal, it also decided to sue for a temporary taking. The Supreme Court ruled that the suit for the temporary take was filed too late. It had to be filed within one year of the original decision denying the subdivision application.

In passing, the Court notes two important items. First, it indicates that the availability of a takings claim based on overbroad regulations under the Tennessee Constitution has not yet been decided. "Currently, we have recognized only two types of takings claims – physical occupation takings claims and nuisance-type takings claims." For the purpose of ruling on B & B, the Court presumed that the Tennessee Constitution permitted such a claim. For what it's worth, if the Court concludes at some future point that a regulatory take claim is not available under Tennessee law, the plaintiffs in such cases will have a remedy in federal court.

Second, the Court points out that "inverse condemnation claims are likewise limited to physical takings." Presumably this means that a regulatory taking must be presented as a claim directly under the Tennessee Constitution, if at all. The ultimate ramifications of this point is not clear, but it suggests that a regulatory take is not bound by the restrictions of an inverse condemnation claim.

By the way, the Court defines a regulatory take as well: "A regulatory taking results when a governmental regulation places such a burdensome restriction on a landowner’s use of its property that the government has for all intents and purposes 'taken' the property." A straight forward definition, but serviceable.

The law of regulatory takes here in Tennessee is just getting underway. It will be interesting to see how it progresses.

Paige v Coyner and Board of Commissioners

The 6th Circuit Court of Appeals released a very interesting opinion towards the end of July. In Paige v Coyner and Board of Commissioners, the plaintiff attended a public hearing and spoke in opposition to a new interstate highway project. Although the plaintiff did not identify herself as an employee, she was in fact employed by a firm involved in development in the area, and her opposition allegedly caused the public official in charge of getting approval for the project to call her employers. During the phone call, the public official mistakenly told the employer that the plaintiff identified herself as their employee during the public hearing and encourage them to discharge plaintiff from their employ. Within a week, they fired her.

Retaliation by public officials for the exercise of First Amendment freedoms is certainly nothing new. The question in this case however was whether the alleged encouragement by the public official to a private employer was sufficient to vest a right to sue under §1983. The Court of Appeals found that it was.

[The public official] could thus be liable not because the firing itself was state action, but because a jury might find that the firing was a reasonably foreseeable consequence of the action taken by [that official]. In other words, once there has been state action (here, the phone call), the proper test for the scope of responsibility for events flowing from that action is reasonable foreseeability, not how close the nexus is between the private actors and the state actors.

The Sixth Circuit went on to analyze the remaining elements of the First Amendment retaliation claim, as well as whether or not there was a sufficient allegation to hold the Board of Commissioners, concluding in each case that there was, and as a result reversing the decision of the District Court dismissing the case.

This decision makes very interesting reading and once again serves to emphasize that public officials should not be involved in taking any action that might be deemed an effort to curtail freedom of speech.

A Sorry State of Affairs: The Writ of Certiorari

We don't really need a reminder, but we got one the other day from the Tennessee Court of Appeals: to file a petition for (common law or statutory) writ of certiorari properly, the facts must be verified, that is, sworn to by someone with knowledge. In Brundage v Cumberland County (Tenn App August 4, 2010), a statutory writ of certiorari was requested but not verified. The petition sought to challenge the development of a landfill. But without verification within 60 days of the action of the administrative body, the trial court lacks subject matter jurisdiction and the case must be dismissed. Which is what happened here; the Court of Appeals affirmed. As the court said:

The case law consistently holds that the failure of the petitioner to verify the petition as required by the Constitution and the statute is proper grounds for dismissal, as the court does not obtain jurisdiction without a properly verified petition.

This is truly unfortunate. It is simply a trap for the unwary. The courts are correct about the law, but why should a case not be decided on the merits? Why should it be tossed out for failure to verify? In fact, in most of these kinds of cases, the facts are almost agreed upon by the parties anyway. The real issue usually is how is the law to be applied to the facts. Verification is largely irrelevant. Tennessee needs a different method of review, one that doesn't have numerous traps for unwary litigants.

Let me review for just a moment the number of little tricks in the writ of certiorari:

The petition must:

– be verified, that is notarized and sworn to as true (TCA § 27-8-106)
– state that it is the first application for extraordinary relief (TCA § 27-8-106)
– state that there is no other plain, speedy or adequate remedy (TCA §27-8-101)
– allege that the petitioner is aggrieved (TCA §27-9-101)
– be filed within 60 days (TCA §27-9-102)

And, by the way, if the neighbors are the petitioners, then the attorney must be extra careful to establish standing.

I have used these technical challenges to obtain dismissals of cert petitions myself. But I never feel very good about it. It's time Tennessee had a better way of reviewing local government land use decisions. Certiorari has out lived its usefulness.

Stoneybrook Golf Course v. City of Columbia

Stoneybrook Golf Course v. City of Columbia is an interesting new (dated July 26, 2010) zoning decision from the Tennessee Court of Appeals. The primary issue is whether an ostensible "agreement" between a developer and a city (or rather certain members of the city council) to annex and zone property in a certain way is an enforceable "contract." Well, of course it isn't. No one who works in this area of the law would ever believe that. That's way real estate development is so risky: city council members change their minds, even if they were ever in the developer's corner in the first place.

Typically, the developer may speak to members of the city council and they may agree that the proposal sounds like a good one. But of course, once the word gets out about the proposal, and public hearings begin, the neighbors may point out problems with the proposal. Should the city be bound by such informal agreements? By a judgment made without the benefit of notice and an opportunity to be heard by the surrounding neighbors? No. And that's what the law says.

In fact, even if the government passes a zoning ordinance and then changes its mind and repeals it, even if the developer has now bought the property and is in the process of developing it, the law says that the government may change the zoning without harm. Only if the developer has obtained a building permit and substantial construction has taken place is there any issue of vested rights which might preclude the zoning change. Frankly, in 30 years of practice, I've never seen a case of substantial construction. It is very difficult to argue vested rights in Tennessee or elsewhere.

This case also has an interesting section about general or comprehensive plans.

Moving to Tune, Entrekin & White

It has been long time since I have changed jobs. Back in 1982, I left the Legal Department for Metro Nashville to come to work for Speight & Parker (now Parker Lawrence Cantrell & Dean). Next Monday, I'll make another change moving over to Tune, Entrekin & White. While I am certainly sad to be leaving my old friends at PLCD, the emphasis on land use and zoning issues at TEW is more aligned with my practice areas these days and it certainly looks to be a good fit both for me and for TEW. And fortunately, I have a lot of good friends over at the new firm as well, so I am looking forward to the challenge and the chance to work with my friends over there.

SP Zoning and Non-Conforming Uses

One of the criticisms of SP zoning here in Metro Nashville has been its seeming refusal to acknowledge non-conforming properties. Tennessee state law, which trumps local Metro ordinances, expressly provides that non-conforming properties may continue, may expand and may rebuild. Tenn. Code Ann. 13-7-208. SP zoning seemed to deny that state given right.

Yesterday evidently, Jon Cooper, the attorney for the Metro Council, reviewed the SP zoning along Gallatin Pike and concluded that the criticisms were well founded. Frankly, there wasn't much doubt. Jon simply applied black letter Tennessee zoning law and came up with the correct conclusion.

The interesting issue is whether the entire scheme of SP zoning is illegal. It is not authorized by Tennessee law anywhere; it is basically an entirely new way of applying zoning principles and there is little in the way of public notice as to what is going on in the back rooms where the negotiations take place concerning the "specifics" of any particular plan. It appears to be contract zoning (although I have always argued that contract zoning should be legal and this does not concern me so much). Finally, to the extent that Metro can be considered a county, it violates the uniformity provision of the county zoning enabling legislation here in Tennessee.

There has been one challenge that I'm aware of, but I believe the local Judge upheld it. If the case goes up on appeal, it might serve as an interesting review of some basic zoning and land use principles. The most important of which is to obtain state authorization for local innovation. Metro has not done that. It should be required.

6th Circuit invalidates PUD changes

In an interesting new decision, the 6th Circuit Court of Appeals has invalidated a change in PUD regulations under Ohio law which were implemented without notice to the property owner. The lack of notice, a violation of procedural due process, prompted the court to invalidate the new regulations. Stores Wedgewood Ltd. Partnership I v. Township of Liberty, 2010 WL 2583410 (6th Cir. (Ohio) 6/28/2010)

The key to the case however, is not so much federal law as state law. "In Ohio, it is well-established that a landowner’s right to an existing zoning classification vests upon his submission of an application for a building or zoning certificate." In most states, including Tennessee, no rights vest until a permit issues and substantial construction has been completed. Thus, in a similar case in Tennessee, the local government would have time to change the zoning before substantial construction was completed, and there would be no rights vested.

Religion: River of Life Ministries v Village of Hazel Crest

There is another new interesting case concerning religious freedom, this time based on the "equal terms" provision of the federal act, RLUIPA. Take a look at my web site for a description of the religious freedom provisions and note the similarity to the TnRFRA.

This case however, involves alleged preferential treatment for non-religious activities with similar land use characteristics. A small church wanted to relocate to a new town, to a building in the commercial area of the city which does not permit noncommercial activities. The 7th Circuit in Chicago wanted to review the standard by which to judge such cases.

The original zoning ordinance authorized “[a]ll general commercial and retail uses” in the B-2 District and also enumerated the following specific permitted uses: art galleries; automobile service stations; dry-cleaning establishments and laundries; funeral parlors; gymnasiums,
health clubs, and salons; hotels and motels; laboratories; medical and dental clinics; meeting halls; newspaper offices; business, professional, and public offices; resale or secondhand stores; restaurants; taverns or cocktail lounges; and accessory uses to the foregoing permitted uses. In addition, the ordinance authorized certain “special uses” (by permit) in the B-2 District: art galleries and museums; daycare centers; schools of any kind; public libraries; parking lots and storage garages; a variety of utility and public-agency buildings; recreational buildings
and community centers; and taverns, cocktail lounges, and restaurants featuring live entertainment. The ordinance also specifically prohibited church services from being held in any “business use” building; this restriction was applicable in all business districts in the village, including the B-2 District.

After the suit was filed, the Village amended its zoning ordinance in an effort to cure the rather obvious facial violation of RLUIPA's equal-terms provision. Note to local Tennessee local governments: it is difficult to allow meetings halls, community centers, and live entertainment and disallow churches in the same district.

The amended ordinance removed certain secular assemblies from the list of permitted and special uses authorized in the B-2 District-meeting halls, art galleries, museums, schools, libraries, recreational buildings, community centers, and certain other secular assembly uses-but continued to expressly permit commercial gymnasiums, health clubs, and salons; hotels and motels; restaurants and taverns; and day-care centers (as an allowed “special use”). River of Life maintains that these remaining permitted uses are “nonreligious assemblies” within
the meaning of § 2(b)(1) of RLUIPA, and that allowing these uses in the B-2 District while excluding churches like River of Life treats religious assemblies on “less than equal terms” than “a nonreligious assembly or institution” in violation of RLUIPA.

The 3rd Circuit (in Philadelphia) ruled in another case that "a regulation will violate the Equal Terms provision only if it treats religious assemblies or institutions less well than secular assemblies or institutions that are similarly situated as to the regulatory purpose." That is, if a secular assembly is allowed and the religious assembly banned even though the two assemblies don't differ in any way material to the regulatory purpose behind the ordinance, then neutrality has been violated and equality denied. Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 266 (3d Cir.2007).

The 11th Circuit took another approach. A zoning ordinance that permits any “assembly,” as
defined by dictionaries, to locate in a district must permit a church to locate there as well even if the only secular assemblies permitted are hospital operating theaters, bus terminals, air raid shelters, restaurants that have private dining rooms in which a book club or professional association might meet, and sports stadiums. Midrash Sephardi, Inc. v. Town of Surfside,
366 F.3d 1214, 1230-31 (11th Cir.2004).

The 7th Circuit agrees with the 3rd Circuit's test, amending it slightly to consider the ordinance in terms of its regulatory criteria, as opposed to its underlying purpose, fearful that the purpose could be difficult to construe and manipulation. The 7th Circuit suggests instead that the Court should look at the criteria of land use, traffic, parking, and others. A cynic might suggest that those are just as susceptible to manipulation as the "purpose" but the 7th Circuit clearly felt more comfortable with those criteria. Indeed, one of the concurring opinions makes exactly that point.

The permitted land use that is most like the plaintiff's is a commercial gymnasium, and that's not close enough because a commercial assembly belongs in an all-commercial district and a noncommercial assembly, secular or religious, does not.

The court ends by reminding the reader that the "substantial burden" part of the RLUIPA is not before the court, and that if that section had been before it, the result might have been different.

In a lengthy dissent, Judge Sykes first explains that both approaches are flawed (and not significantly different in any event) and then why he disagrees with the majority.

There are a couple of reasons why this analysis is flawed. First, the unmistakable implication is that comparing the excluded religious assembly to a permitted commercial-i.e., for-profit-assembly is either categorically improper or will always defeat the claim. But nothing in the text of the equal-terms provision presumptively rules out using commercial secular assemblies and institutions for equal-terms comparison just because they are commercial and therefore “belong” in a commercial district. Second, the focus on other excluded assemblies has the analysis backward. A decision method that justifies excluding religious assemblies from a zone because nonreligious assemblies are also excluded turns the equal-terms provision on its head. The equal-terms provision is a remedy against exclusionary zoning; reading it to require equality of treatment with excluded secular assemblies-rather than included secular assemblies-gives religious assemblies no remedy at all. The statute plainly requires religious-group equality with permitted secular assemblies, not excluded secular assemblies.

This is a quite interesting decision and the give and take between the majority and the dissent illustrates some of the difficulties of interpreting the federal statute. From my perspective, the 7th Circuit's idea that tax policy is a legitimate part of land use planning is suspect: land use issues should be decided on the impact of the land use on surrounding land uses, not how much tax is going to be generated by the permit. Once we begin to allow local governments to make decisions in zoning on that basis, the system is in serious trouble.

Memphis -- Union Ave United Methodist Church

In another interesting zoning matter involving a church, this one the Union Avenue United Methodist Church in Memphis, CVS has asked for approval of a site plan that would involve demolition of the church. The Land Use Control Board (basically the Memphis Planning Commission) voted 6-1 against the plan on Thursday, as reported by the Memphis Commercial Appeal. A part of the property is located in a residential zoning district. CVS has applied for approval of its site plan. The planning staff insists on moving the building up towards the street, with parking in the rear. CVS wants some parking at least on the front of the building.

The church was built in the 1920's and is on the National Register of Historic Places. From the available photos on the net, it appears to be a wonderful building (although the public comments from local residents indicate there is a division of opinion about that). Based on what I have read the building is not protected by local historic zoning. Registration on the National Register does not preclude demolition (the National Trust says CVS agreed 11 years ago not to destroy buildings on the National Register, but the federal statute doesn't prevent such demolition). And of course, as we have talked about before, the Tennessee Religious Freedom Restoration Act likely prevents the government from doing much about plans to demolish church buildings, including this one. Naturally, the CVS plans must comply with local regulations.

Often, the property owner would be better to destroy the building before sale, bypassing the historic argument and focusing on the plan. With the building still standing, the controversy expands and makes getting approval that much more difficult.

The recent case in Nashville involving the Charlotte Avenue Church of Christ involved a historic regulation that delayed demolition of the structure. That is to say, local historic zoning protected the building. In the Memphis case, this is not so. With the passage of TnRFRA, that probably is not important any more. It would likely be extremely difficult for the city to find a compelling reason to justify the demolition delay permitted by local zoning regulations.

Both cases illustrate the potential impact of TnRFRA on historic zoning: protecting older churches has become much more difficult. On the other hand, usually these churches are no longer maintained and used because the congregation has gotten older and smaller and can no longer afford to keep the building up. Perhaps a part of TnRFRA can be justified in these cases as not wanting to force small congregations to maintain buildings as eye candy for the rest of us. If the building is that significant, perhaps the city should buy it. But that's the problem: usually the cities would rather regulate than purchase. It's a whole lot cheaper to make the private owner pay the bill.

The Memphis case is a bit like a case here in Nashville several years ago. Walgreens wanted to build a new store and the corner of 30th and West End. The old Jacksonian Apartments were to be torn down to make way for the Walgreens. A variance was needed for the plan submitted but the real issue was the historic nature of the Jacksonian, although it was not covered by local historic zoning. In the end, the variance was granted, the case was appealed (Tom White and I represented Walgreens who won), and the Walgreens was built, and is now doing business. A new Jacksonian was built down the street incorporating elements of the old.

The Memphis case must still be decided by the Memphis City Council; it will be interesting to see how the vote goes.

Adult Entertainment

In an interesting new case, the 11th Circuit Court of Appeals in Miami has held that online adult entertainment is a violation of the Miami zoning ordinance. Essentially, the plaintiff webcasts men living in a residence in Miami performing sex acts. There are no outdoor cameras, the address is not released by the plaintiff and in all other aspects, the home appears as a residential dwelling. The men are paid, and live at the home.

The 11th Circuit in Flava Works Inc v City of Miami, 2010 WL 2539759 (11th Cir. June 2010) held that this is a business enterprise operated in violation of the zoning ordinance, notwithstanding its earlier decision in Voyeur Dorm, L.C. v. City of Tampa, 265 F.3d 1232 (2001). The Court distinguished the earlier holding by saying that the decision there was that the activities were not "adult entertainment establishments" since there were no secondary impacts such as relied upon in most cases permitting zoning regulation of adult locations.

The issue however in the current case was whether the use was a business (adult entertainment or not) and clearly, it is a part of the business of Flava Works. As a result the business use in a residential district is illegal under the terms of the zoning ordinance.

Of course, no on has any sympathy for these types of uses, but one might ask if the only impact on the surrounding land uses is residential, what has really changed from the earlier case? The real issue is the impact on surrounding land uses. If the use of the subject property externally is no different than an ordinary residence, why can zoning regulate it whether a business or not? The whole point of zoning is to reduce external impacts; there were none or very few here. Why is it illegal? Maybe just because the use is so repugnant to most people.

Mandatory Consistency

In my comments yesterday, I referred to Tenn. Code Ann. § 13-4-202(b), which allows a planning commission to request legislative approval of General Plans here in Tennessee, and the recent amendment extending the required consistency to include local zoning boards. Perhaps it would be well to discuss the original provision in order to understand it further.

Before exploring that topic, some history is perhaps worth reviewing. Remember that planning is an important precursor to land use regulations. The theory is that a plan is developed by the planning commission, and then regulations, including the zoning ordinance are passed giving effect to the plan. In the words of the Standard Zoning Enabling Act (see a discussion in Wiki here), zoning was to be "in accordance with the comprehensive plan." Many state zoning acts use this language, at least originally, even if it is not precisely clear what was intended.

Here in Tennessee, however, that language was avoided entirely. Alfred Bettman, from Ohio, was asked to draft the Tennessee act in 1934. He was one of the most prominent land use attorneys of the early 20th Century, and he selected very different language:

Whenever the planning commission of the municipality makes and certifies to the chief legislative body a zoning plan, including both the full text of a zoning ordinance and the maps, representing the recommendations of the planning commission for the regulation by districts or zones . . . , then the chief legislative body may exercise the powers granted . . . , and may divide the municipality into districts or zones of such number, shape and areas it may determine, and, for such purposes, may regulate the erection, construction, reconstruction, alteration and uses of buildings and structures and the uses of land.

It would seem that statute contemplates the "zoning plan" as the text of the zoning ordinance and the zoning map or maps. A separate plan, such as we are accustomed to today, was not necessary to the adoption of the zoning ordinance.

This was Bettman's view of planning and zoning. In his regard, the Planning Commission was the keeper of the plan; it was not a political document that would be sullied by the political machinations of the city council, but a bible to be interpreted and construed by the planning commission.

Unfortunately, while this might have been a fine planning perspective, it neglects the practical impact of local politics in America. The General Plan might remain pure and protected by the Planning Commission but it also became irrelevant. The city council began to simply ignore the plan and the high priests on the planning commissions. To the extent that the state zoning law required a large majority to override a recommendation of the Commission, that became an accepted practice. In Metro Nashville, for example, where a 2/3rds majority is required to override by the Charter, if the local councilmember wishes to override, it is usually not a problem.

In took about 30 years, but in 1964, TJ Kent in his famous book, "The Urban General Plan" argued that the plan had to be adopted by the city council in order to have an impact on the decisions being made by city leaders. He argued persuasively that the plan could not just be the Planning Commission's document but that it had to be shared with the leadership of the city and adopted by the city council. Perhaps the plan would not remain quite so pristine, but it would have an impact on decision not not be entirely ignored as so many had become.

Tennessee's legislation was not immediately amended to reflect this change in planning philosophy. But in 2008, the General Assembly allowed a city to choose to follow the Kent model (it is not required). Let's take a look at the language:

Once the commission has adopted the general plan or amendment of the general plan for the planning jurisdiction of the commission, the commission's transmittal of the certification to the legislative body may simultaneously include a resolution by the planning commission requesting the consideration and adoption of the general plan by the legislative body of the municipality . . . The municipal legislative body, by ordinance, may adopt the general plan as certified by the planning commission

Tenn. Code Ann. § 13-4-202(b). The planning commission gets to choose: if councilmanic action seems apropos, then the planning commission may request it, and if not, not. But, once the request has been made and accepted, the planning commission is no longer the sole keeper of the plan. Substantial control over the document is vested in the council

The planning commission may vote to amend, but outside of only a few counties, before the amendment becomes effective, the council must also adopt it. Tenn. Code Ann. § 13-4-202(b)(1)(A). Further if the council wants to amend, the commission has 60 days to agree; if not, the council may pass the amendment by a majority vote. Tenn. Code Ann. § 13-4-202(b)(2)(A).

To illustrate this power further, suppose the planning commission asks for the involvement of the council, but the plan as certified has some objectionable elements. Remember that the statutory language authorizes the council to adopt the General Plan as certified. Tenn. Code Ann. § 13-4-202(b). Does this effectively prevent the council from acting? No way; the council simply adopts the plan as certified and then immediately notifies the planning commission of its intent to remove the offending elements out of the plan. If the planning commission will not agree within 60 days, the council simply passes its own version after the 60 days expires. Tenn. Code Ann. § 13-4-202(b)(2)(A).

The importance point in this legislative amendment is that once the General Plan is adopted in this way, all future land use decisions must be consistent with the plan. Tenn. Code Ann. § 13-4-202(b)(2)(B)(iii). That is, the city council (or county legislature), the planning commission, and the zoning board (except with regard to variances) must make decisions which are consistent with the plan. If not, it will provide a legal grounds to challenge the decision and seek a reversal. With the exception of the Smart Growth Act, Tenn. Code Ann. § 6-58-101, 107, this is the only statute that requires mandatory consistency with the General Plan.

I think that TJ Kent would applaud the changes made by the General Assembly. Whether many municipalities will adopt this process, and how effectively it will work here in Tennessee, remains to be seen. At least now however, the choice is there, and the local governments can make an educated decision about how to implement the long range planning process within their jurisdictions.

BZA decisions must be consistent wtih General Plan

One of the more interesting new zoning laws which becomes effective July 1, 2011 (that's right, next year, not this!) extends the mandatory consistency of the General Plan in those jurisdictions where the Planning Commission has recommended and the local legislative body has adopted the General Plan. This is a distinct minority of Tennessee jurisdictions: most General Plans are adopted by the Planning Commission and no legislative action is needed.

But in those areas where it is, Chapter 648 of the 2010 Tennessee Pubic Acts requires that not only must any land use decision by the legislative body and planning commission be consistent with the plan, but so too must all zoning board decisions (excepting variances). For attorneys as well as applicants to the effected zoning boards, this may add another wrinkle in the application process. The applicant will have to prove consistency with the plan, or possibly face reversal on appeal.

Let me say that it may be necessary under the state laws in effect now (in fact I usually try to prove such consistency whenever I am in front of a zoning board) so that perhaps this isn't such a big deal. However, Chapter 648 makes the requirement much more pointed, and opposing parties may find this fairly easily and thus have another argument to invalidate a zoning board decision.

I would be remiss if I did not mention that the 2008 amendment that authorized adoption of general plans by the local legislative body permits but does not require the planning commission to request adoption of the plan by the legislative body. In effect, once such a request is made and the plan adopted by the LLB, the plan becomes a creature of the LLB, and not of the planning commission. The City of Columbia Planning Commission has made such a request; I don't recall hearing if the plan was ultimately adopted by the local legislative body or not. There may be other examples but as of yet, I believe they are few and far between.

Take a look at Tenn. Code Ann. § 13-4-202(b) to understand the basic premise behind the statutory scheme; Tenn. Code Ann. § 13-3-304(b) is the companion regional provision.

Justice McReynolds

There isn't a lot of news this weekend concerning local zoning controversies or new case decisions. Instead, I thought we might discuss just briefly a local man who was appointed to the United States Supreme Court and who voted against the zoning ordinance in the landmark zoning case known as Euclid v. Ambler Realty Company, 272 US 365 (1926). As all attorneys who work in the land use area know, the Supreme Court held that "If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control," and the zoning ordinance was upheld by the majority of the court.

The majority opinion was written by Justice Sutherland, and he was joined by Chief Justice Taft, and Justices Holmes, Stone, Brandeis, and Sanford. Historically, Justice Sutherland evidently had a difficult time resolving his views about comprehensive zoning ordinances such as the one adopted by the Village of Euclid, and there was a second argument which ultimately led to Sutherland breaking with the more conservative members of the court and voting in favor of zoning.

In dissent were Justices Van DeVanter, McReynolds and Butler, although no written reasons were given by the dissenters. Most interestingly for Tennesseans is the presence on the court at this time of Justice McReynolds. McReynolds was born in Kentucky but moved to Tennessee and graduated from Vanderbilt University first in his class. He attended the University of Virginia Law school and after a brief stint in Washington, returned to Nashville to practice law. In 1900, he became a professor of law at Vanderbilt where he worked with Horace Lurton who himself would later become an Associate Justice of the US Supreme Court court.

McReynolds was appointed as an Assistant Attorney General in Teddy Roosevelt's administration and he wound up in New York City practicing law around 1910. In 1914, Woodrow Wilson appointed him to the US Supreme Court. He served 26 years on the bench and was generally viewed as both pro-business and extremely conservative. McReynolds also had a reputation of having an abrasive personality and a volatile temper. He did not get along with a number of his colleagues on the bench, in particular Justice Brandeis (usually ascribed to anti-Semitism) and was a bitter enemy of FDR and the New Deal. That alone probably would explain his dissent on the zoning case.

McReynolds retired from the court in 1941, after the court packing plan sponsored by FDR was defeated. In fact, the four major conservative votes on the court retired shortly after that plan died in Congress, perhaps seeing the handwriting on the wall that there was about to be a sea change in the approach of the court towards economic and social legislation. Some observers maintain that McReynolds held on longer than the others out of sheer spite for the New Deal and FDR. McReynolds died six years later in Washington DC, at the age of 84.

After his death, a number of his colleagues on the bench were surprised to learn that during the Second World War, McReynolds had supported 33 young refugee children financially and had been one of the founding contributors to the Save the Children organization. He left most of his estate (he was a lifelong bachelor) to the Children's Hospital in Washington, DC, and to the Salvation Army.

The official court portrait and a photo of the Justice may be found here. A longer biography of the Justice may be found here.

Murfreesboro News Journal Article on Tn RFRA

The Murfreesboro Daily News Journal carried an interesting article concerning the Islamic Mosque controversy in Rutherford County, and the seminar that Sam Edwards and I did for the local planning commission earlier this week. The article is here.

I am most interested in how the courts will interpret the Tennessee Religious Freedom Restoration Act (TnRFRA). As I have discussed here before, the Act is quite strongly worded and local governments will find it difficult to deny applications by churches and other religious uses. I should add that I am not the only attorney who has expressed this concern. Back in September of 2009, the Tennessee Municipal Technical Advisory Service, which helps local governments understand and implement their duties and powers, wrote that TnRFRA

will also diminish the authority of local governments to regulate land within their jurisdiction through zoning, direct the behavior of on-duty employees and protect the health and safety of its citizens. The full scope of the ramifications is limitless as any action that someone can claim is religious can be used to challenge even the most neutral and prudent law.

The MTAS reference document can be found here.

Metro Zoning Board Meets Today

The Metro Nashville Board of Zoning Appeals meets today (and customarily every 1st and 3rd Thursday of each month) at 1 PM in the Green Hills Auditorium at the Metro Southeast Offices, 1417 Murfreesboro Pike. The board has a fairly typical agenda with several special exceptions and at least one variance requested.

The Board's web site is here, and the members of the board are listed here.

For those of you who can't make the meeting, but want to stay up to date on all the latest zoning board activities, Metro's Channel 3 records and provides delayed video coverage of every meeting. Here's the schedule of broadcasts!

Memphis Midtown Zoning Plan

Memphis is in the process of drafting a zoning overlay for the midtown area, making development more dense and permitting mixed use development, according to an article yesterday in the Memphis Commercial Appeal reported here. The idea is to extend these zoning policies from the downtown area into midtown. It follows a trend across the country trying to make development more sustainable, emphasizing pedestrian access, close knit development, and fewer autos. The adoption of the Downtown Code by Metro Nashville several months back is another excellent example.

Historic Zoning Comm wins Ransom School Case

Yesterday, the Davidson County Chancery Court issued a decision in an interesting historic zoning case. The owner applied for a certificate of appropriateness and because the base zoning had reduced the number of permitted residences (from 18 to 11), the financial viability of the project was endangered. The owner asked to be permitted to reconfigure the Ransom School here in Nashville to remove a portion of the school to make construction costs less expensive. The Commission denied the application even though it appeared to make reasonable sense.

The applicant submitted evidence tending to show that to develop the property given the current configuration of the school would raise construction costs for the project well above those in the general vicinity for similar construction. The staff and a majority of the Commission was not convinced that the construction estimates were accurate, citing examples that they thought were too high. However, no other estimates were forchcoming so that the only real evidence was that of the applicant.

The technical legal issue has to do with the amount of proof needed to show an economic hardship. Given the Court's decision, it appears that the Commission need not have any hard numbers to justify its decision but can instead simply cast doubt upon the applicant's proof. Ordinarily, in the absence of contrary evidence, that is not sufficient. If the case is appealed, it will be interesting to see what the Court of Appeals thinks under these circumstances.

Hindu Temple Dedicated in Mississippi

In articles reported in the Tennesseean and elsewhere, a Hindu Temple in Mississippi was recently dedicated. The article makes the point that there was initially some distrust amongst the local neighbors, but that has dissipated as the community got to know the members of the Temple. Perhaps this example of religious tolerance will help here in Tennessee!

Religious Freedom and the Mosque

This morning's Tennesseean has a story about another Mosque, this one in Rutherford County, seeking approval from zoning authorities. We've discussed Tenn RFRA before, but it is worth reiterating that the new statute here in Tennessee makes it very difficult for a city or county to turn down a zoning application made by a religious entity. Still no litigation that I'm aware from Tennessee concerning zoning issues under the terms of the statute, but certainly we will see some very soon.

Sam Edwards and I are doing a short seminar down in Rutherford County, coincidentally, about Tenn RFRA in a couple of weeks. I'm sure we'll get a chance to discuss this and other similar issues.

Lakeland Commons v Town of Lakeland

Lakeland Commons v Town of Lakeland is a fairly routine denial of a planned unit development. The case does illustrate that it is hard to appeal a PUD denial in the face of a recommendation against the project by the Planning Commission. My feeling has always been that the Planning Commission reviews the objective requirements and at least tries to rule on those. Unfortunately, political considerations often appear in the deliberations of the legislative body. If the Planning Commission recommends against, the politics become irrelevant. The town council may simply base the denial on the Planning Commission recommendation against. Essentially, that is what happened in this case.

Ex Parte Contact: Back Room Lobbying Shouldn't Be Permitted

One of the more perplexing mysteries over the years I have practiced has been the debate about lobbying administrative bodies. I have always argued that such practices were unethical and should not be tolerated. However, it is true that there is precious little guidance in the context of local administrative decision-
making. At the state level, there is a statute that forbids ex parte contact with administrative law judges or agency members. Tenn. Code Ann. § 4-5-304(c). There is no similar prohibition at the local level, unless the local government adopts one itself, something I have never seen in my practice.

A little over a year ago, the Attorney General was posed a question concerning this issue. The opinion does not involve zoning or planning but a similar administrative proceeding, in this instance, one which would be considered by the local legislative body (as in a PUD). The AG concludes that to permit ex parte contact with persons involved in an administrative proceeding would be a violation of procedural due process and strongly recommends against such contact. The AG opinion, #09-02, dated January 9, 2009 may be found here.

Because the city council would be acting in a quasi-judicial capacity at such a hearing, it would be required to comply with procedural due process requirements including the right to a fair hearing before an impartial tribunal. If city council members speak to a party to the proceeding or to affected representatives of an industry or an affected individual about the fee increase, while a challenge to the fee increase is pending, these communications will likely be considered ex parte communications by a court reviewing the decision of the city council. An ex parte communication is defined as a “generally prohibited communication between counsel and the court when the opposing counsel is not present.” Although this definition refers to communications to a court, reliance on ex parte communications by members of a decision-making body in quasi-judicial administrative hearing are also generally prohibited. The reason for this is that ex parte communications interfere with a party’s due process rights “to hear and comment on all of the evidence considered in a case.” Id. Courts have noted that ex parte communications can “shadow the impartiality, or at least the appearance of impartiality,” during a hearing and “may, in some circumstances, constitute a deprivation of due process of law.” [citations omitted]

Not all such communications of course are so prejudicial that the decision of the tribunal would be overturned. But surely this AG opinion, recognizing the impropriety of such conduct, is a fair warning to all hearing officials and boards that discussions with parties without the presence of other affected persons may serve to invalidate the proceedings. Ethically, I believe that attorneys simply should not be involved in such conversations. In the past, sheer fear of the tactics of opposing parties has driven some to make such contact, on the theory that the other side was doing it too. From my perspective, that's no excuse. It's not right. It shouldn't be done.

Before concluding, let me note that lobbying the local city council on a zoning change is entirely different. That's a legislative decision and those decisions can be lobbied. That just good old politics. But when the decision is akin to a court proceeding, such as for example, planned unit developments before a city council, no lobbying should be tolerated.

Nashville's Downtown Code

The Metro Council passed the Downtown Development Code last night. There is a page on the Planning Commission website with links to the Ordinance and the basic document. Click here.

Overall, the DTC is a step in the right direction: the emphasis is on regulation of form, and less on actual use. In the downtown area, surely a multiplicity of uses can be accomodated: it is more important to control the form while managing use compatitibility rather than the focus which usually has been almost entirely on use issues in the past.

There are a couple of interesting sidelights from a legal standpoint. First, the DTC is evidently excepted from the application of the non-conforming provisions of MetZo (§ 17.40). Since most of the property downtown is commercial or even industrial, the Tennessee Non-Conforming Property Act (Tenn. Code Ann. § 13-7-208) will undoubtedly apply, so the exception likely doesn't mean a whole lot, at least when a non-conforming building is being expanded under subsection (c). In the case of demolition and reconstruction, under subsection (d), the statute may require that the bulk standards be met and the new Downtown Code may apply. Those sections of the statue (Tenn. Code Ann. § 13-7-208(d) and (i)) have always been somewhat confusing; it has never been clear to me exactly how they intersect. Undoubtedly, the Courts will at some point, provide an answer to that question. On the other hand, there may be advantages to compliance with developmental bonuses.

The other interesting legal question is brought up by the section on "modifications," at page 14 of the DTC. The DTC establishes a Design Reveiw Committee (separate from and independent of the zoning board) which may grant modifications where "the intent of the standard is being met, the modifi cation results in better urban design for the neighborhood as a whole, and the modifi cation does not impede or burden existing or future development of adjacent properties."

That all sounds fine but I'd suggest there are several difficulties. First and foremost, these "modifications" sound like zoning variances. Under existing Tennessee law, that's the job of the zoning board, and perhaps more importantly, there are specific standards that must be met. There is a very real question as to whether the DRC can assume the function of the zoning board, and if so, whether it must comply with existing Tennessee law.

In addition, the selection process is very unusual: nomination by 4 private organizations and appointment by the Mayor, Vice-Mayor, Historic and Planning Commissions. If a private developer loses an application for a modification, an attack on the structure of the DRC seems very likely. It is worth remembering that the Planning Commission itslef is only an appointed body: it is not elected and the members are not required to be confirmed by Council. So to have an appointed commission appointing more folks with powers over private property, there seems to be a wide gulf between this system and the Tennessee enabling legislation. Alfred Bettman's idea was that the Planning Commission itself was mostly an advisory body: any decision routed through it was usually finally made by Council, an elected body. The one exception is subdivisions where the MPC makes its own decision: but those cases are much less controversial. It will be interesting to see how the new DRC fares given Tennessee law.

Finally, p. 15 of the DTC has 5 levels of compliance. The first 4 levels seem to be covered by the Tennessee Non-Conforming Property Act, discussed above. As long as the use of the property remains the same, it is not clear to me that an owner needs DRC's permission regarding construction. For example, under levels 3 and 4, where redevlopment takes place after demolition of less than 100% of the existing building, the statue surely allows expansion as of right. Perhaps an owner cannot demolish 95% of his building and still come within the terms of section 208(c), but no one knows where that line may be. If the owner takes down 75% of the existing structure, intends to overall expand the existing use of the property,does that come under 208(c), not requiring compliance with existing bulk regs, or 208(d), which may require such compliance? This will be an interesting area to watch.

The Ransom School

A few weeks ago, an interesting appeal was argued before Chancellor Russ Perkins concerning historic zoning and economic hardship. The academic question, what evidence must be submitted in order to make a case for economic hardship in a historic zoning context, is fascinating all by itself and that is the issue before the court. But perhaps a more interesting question is how Metro Nashville ever placed the owner in this situation in the first place.

In February of 2008, the Ransom School property (located at 3501 Byron Avenue) was declared surplus and put up for sale on Metro's eBid website. Historic Nashville, Inc. has a photo up online here.The first effort led to no offers being made, but the property was re-auctioned with the auction closing on March 18, 2008. The website specifically showed the zoning on the property as RS7.5 which would permit up to 18 residential units. The Ransom School, also on the property, had been declare historic (at an earlier time) so that any development would need to work that building into the equation.

Unfortunately, during the time that the auction was going on, a bill was introduced in Council to change the zoning on this property so as to decrease the number of permitted residential units by almost 40%! No mention was made on the eBid website of this proposed change, and as luck would have it (or as Metro Nashville planned it), the auction expired on March 18, 2008 at 12 noon with one only bid on the property at a price of $1.1 million. That evening, at the Metro Council, unbeknownst to the buyer, the property was rezoned on third and final reading, decreasing the permitted density. The Ordinance is online here.

Now, let me say, that a private buyer purchasing a property from a private seller, takes with all risk, including the risk of a zoning change. Westminster LLC v Metro Nashville is an interesting example where the city rezoned the property shortly after purchase. That's just part of the deal. But note, that in those types of cases, the seller and the government are two different entities. In the case of the Ransom School, Metro was both the seller and the body changing the zoning, without giving any notice to the buyer. One would've thought that a simple link from the Metro Council agenda to the eBid website would prevent such nonsense. Evidently, the city hasn't set up such a connection; why not?

This isn't the first time in recent memory that there has been a similar error. In a case just recently decided by the Tennessee Court of Appeals, Metro Nashville v Brown, decided Dec 30, 2009, Metro sold an improved property at a tax sale (Metro is selling property again) but unfortunately forgot to tell the buyer that the house had been condemned and shortly after the new owner bought the property, Metro Codes had it torn down without notice to the new owner!!! The new owner sued seeking the value of the home, attorneys' fees, and interest. The Court of Appeals gave all of it the the plaintiff.

To some extent, I am less sympathetic to Mr. Brown. If he had checked with Codes about the property, he likely would have found out that there was an order of condemnation on the structure. He failed to do that, and he almost paid the price for his oversight. In the case of the Ransom School, it is much less likely that a bidder is going to check the Council agenda to see if there is a proposed zoning change. And checking with Metro Codes will likely not reveal the pending zoning bill; perhaps inquiry at the Planning Commission would have led to discovery of the proposed bill,but it depends to some extent on who would have been asked. The point is that the government was the seller; as such, it must have safeguards in place to prevent this type of nonsense. Just as similar safeguards were statutorily required in the Brown case but ignored.

In any event, the new owner of the Ransom School felt that with a little help from the city, the deal was still viable. To that end, an application was submitted to the Historic Zoning Commission on the basis of an economic hardship: given the prices of improved property in the area, with only 11 homes to sell, the financing simply didn't work. But if a part of the school could be removed, the cost would be reduced, and the plan was feasible. The Metro Zoning Ordinance has a specific section devoted to this type of economic hardship, but the Commission turned the application down, four votes against and two votes in favor of granting the application. The staff recommendation against the proposal is found here.
The City Paper has an article online about the Commission's decision. Click here.

So the case is before Chancellor Perkins. The inequities of the sale are not before him: the appeal only involves the circumstances of the Commission's denial of the hardship application. Metro's main reply seems to be that the hardship was self-created: how that is true is simply beyond imagination. But on a more legalistic approach, it doesn't make much sense anyway. First, self-created hardship is a variance doctrine: no variance was applied for here. Second, even if the buyer knew of the zoning change, even if the zoning change took place a year before the sale instead of the night the auction closed, does the buyer waive his rights against Metro? If you buy a property that is unusable because of its zoning, does the fact of a purchase with knowledge immunize the local government that zoned the property in the first place? Let's hope not. The entire doctrine of over broad regulatory takings will be overthrown if that is the case.

Metro Nashville created this situation. It should be required to help the new owner fix it.

The Tennesse Religious Freedom Restoration Act

I am starting a new blog, perhaps a little better than the old. I'm going to recycle a couple of my old entries first and then get going with some new stuff. The most important issue in land use in Tennessee over the last year has been the Tennessee Religious Freedom Restoration Act.

The Tennessee General Assembly added a new provision protecting religious freedom this past session. The Tennessee Religious Freedom Restoration Act (TnRFRA), Tenn. Code Ann. § 4-1-407 is the state equivalent to the federal Religious Freedom Reformation Act (RFRA), 42 USC § 2000bb (2000). There is however, a key difference. Where the federal act does not define "substantially burden," the state act does. Both acts only apply to governmental actions which substantially burden religious freedom (and there is also a federal act that applies specifically to land use issues and institutionalized persons), but the federal act leaves the definition of the phrase to the federal courts. The state act provides its own, and it doesn't take much to bring it into play.The state act defines substantially burden to mean "to inhibit or curtail religiously motivated practice." As a result, it seems that any inhibition or curtailment of religious practices may be a violation of the Tennessee act. For example, supoose the city denies a permit to build a church because the plans don't comply with building safety requirements. Is the refusal to issue a permit an inhibition or curtailment? Almost certainly. The government must prove a compelling governmental interest and least restrictive means if its actions are found to be a substantial burden. It is almost impossible to surmount those tests as a practical matter which means if the court finds a substantial burden, the government will lose. Are the objectives of the many of the provisions of the building or fire code compelling interests of the government? Almost certainly. Are there other less intrusive methods of protecting building safety? Probably. The city might lose a case such as this based on the phraseology of the new act. Does that make much sense? Probably not.
In addition, there are two other key differences. First, whereas the federal act only requires the government to meet its burden of proof by a preponderance of the evidence (the customary standard in civil cases), the state act requires proof by clear and convincing evidence. The only appellate court decision to review this provision so far says "Tennessee’s religious freedom statute places a significantly heightened burden of proof on the governmental entity." See Johnson v Levy, (Tenn Ct Apps), Jan 18, 2010. And further, that same Court concluded that the "compelling governmental interest" test under Tennessee law is more stringent than the same test under federal law, because of a difference in phraseology in the state statute. As the Court says:

The distinction between “in furtherance” and “essential” is more than semantics; it reveals that the Tennessee General Assembly intended to provide greater protection of religious freedom than that afforded by the federal RFRA. Under Tennessee’s religious freedom statute, the governmental agency has to prove by clear and convincing evidence that the action it seeks to take is essential to furthering that compelling governmental interest. See Tenn. Code Ann. § 4-1-407(c)(1).

This is something of a concern because governments almost never win any case where they have to meet the federal "compelling interest" standard. If the state standard is higher, will any city or county be able to meet the burden?Since it appears very easy for the plaintiff (religious entity) to prove a substantial burden under the definition contained in the act, most cities and counties will need to be very careful in dealing with religious entities. In effect, it seems that the Tennessee act gives a type of super priority to religious land uses. In fact, many governments may simply concede and allow the use rather than run the risk of losing an expensive court battle, especially one which is strongly tilted in favor of the plaintiff to begin with.
Time will tell.

Smith County v Hiwassee Village Mobile Homes

The Tennessee Supreme Court released its opinion in Smith County v Hiwassee Village Mobile Home Park, Tenn S Ct, Jan 22, 2010 today, and it is quite an interesting decision. The Court of Appeals decided this case back in 2008 and concluded that the mobile home park was not a commercial use within the meaning of Tenn. Code Ann. § 13-7-208, and was not therefore legally non-conforming. The Court also concluded that the use of the park had not begun as of the time effective date of the zoning ordinance in Smith County and therefore, it was not entitled to protection under the statute.

The Supreme Court disagreed with the analysis, finding that the mobile home park was indeed commercial, and devotes a good deal of analysis as to why that conclusion is correct. In the end the court concludes however that the trial court was correct in finding that the use was not established before the zoning was enacted and because of that failure, the statutory protection is unavailable.The end result is that the Court of Appeals decision was affirmed.

The Supreme Court first did a little housekeeping. Although it seems too obvious to require a holding, and perhaps for that reason there is a dearth of rulings on this point, the Court made clear that the right to continue the use runs with the land and benefits a subsequent purchaser. "The trial court correctly found that, if the mobile home park were a prior conforming commercial use, the right to continue that use after the effective date of the Private Act would run with the land and benefit Hiwassee LLC as a subsequent owner." Footnote 13. This ruling is a welcome one. Although scarcely anyone would argue to the contrary, it is an important point and a Supreme Court ruling to that effect makes plain what most land use attorneys had always assumed.

The Court also laid to rest another nagging issue. Does the Non-Conforming Property Statute, Tenn. Code Ann. § 13-7-208, apply to both municipalities and to counties, or only to the former? The statute itself is found in the municipal section of the zoning enabling legislation and for that reason some courts held it only applied to cities. In more recent years, the Courts have held that the statutory protection applies to both governmental entities, because the actual language appears to apply to both. However, the Supreme Court had never ruled and the issue remained a littl cloudy.

Justice Clark clarified the state of Tennessee law, holding that the statute applies to both types of local governments, relying principally on the language of the statute. That seems the most appropriate conclusion and this issue now seems resolved fully and finally.

I was somewhat surprised that the Supreme Court reached the conlusion that it did with regard to mobile home parks. It seems more appropriate to look at the end use, and not what the owner of the property considered the use as. Here, the end use is residential. Therefore, the statute would seem inapplicable, as the Court of Appeals had ruled. Justice Clark reviewed the history of mobile homes; "Commentators, and most courts until very recently, have agreed that '[a] mobile home court is a commercial venture.'" Sl Op at 12, citing Young's Anderson's Law of Zoning.

It is true that the parties (including the government) had agreed that the use was commercial. It is hard to understand why the government conceded such a position. In any event, it seems clear that the Court could simply refuse to accept such an agreement. The Court specifically mentions that it expresses no opinion on apartments or duplexes, but surely the Corut would find an apartment house as residential. And if so, why not mobile homes?