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.