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.