Stumblin', bumblin, mumblin . . . air conditioning unit?

The Tennessee Court of Appeals recently decided one of those petty neighborhood disputes that so often arise out of alleged codes infractions. In Pearson v Ross (Tenn App Dec 28, 2011), Pearson sued Ross for nuisance arising out of the noise made by his air-conditioning unit.the two homes were constructed in a zero lot line residential development, and were only 7 feet apart. The placement of the air-conditioning unit was directly outside the bedroom of the plaintiff. She complained that it was extremely noisy and winds up suing her neighbor for nuisance.

The plaintiff evidently complained to the Shelby County Codes Department, but got no help from them. There was testimony at the trial (at which the defendant represented himself) that Ms. Pearson was overly sensitive to noise, and frankly not very considerate of her neighbors in any case. For example, a neighbor testified that Pearson complained constantly about perceived problems with her small dog barking inside her home or how her grass was cut, and repeatedly reported her to the police and submitted a complaint
to the environmental court about the dog barking in her home. After a hearing, she said, the judge of the environmental court told Pearson she had unusually sensitive hearing. Prior to Pearson moving into the neighborhood, the neighbor said, all of the neighbors would socialize in their yards and be friendly; this changed after Pearson moved in, put up “no trespassing” signs in her yard, and put cameras in her windows to record the activities outside. After living in the neighborhood for eight years, the neighbor testified, once Pearson moved into the neighborhood, the neighbor sold her home for less than it was worth in order
to move away from Pearson.

As any experienced attorney can tell, a lot of hearsay testimony which was likely inadmissible was not objected to by either party. The trial court finally concluded that the plaintiff was indeed overly sensitive to the noise, denied relief and dismissed the case.

On appeal, the plaintiff argued that the evidence was improperly admitted, but the Court of Appeals noted that there had not been any objection, and so the evidence was properly admitted because of the lack of objection.

The Court of Appeals noted that  noise is not a nuisance per se because “no one is entitled to absolute quiet in the enjoyment of his property.” Lawful activities are not to be adversely affected “on account of every trifling or imaginary annoyance, such as might offend the taste or disturb the nerves of a fastidious or over refined person.” In order to be considered a nuisance, “noise must be so excessive that it is unreasonable in light of all the circumstances and must cause injury to the health and comfort of ordinary persons in the vicinity.”  The determination of whether a particular noise constitutes a nuisance should not be based on the subjective sensitivities of particular plaintiffs, but rather on an objective standard based on reasonableness.

“Whether a particular noise is sufficiently excessive to constitute a nuisance is ordinarily a question of degree and locality—in essence a question of fact to be considered in light of all the attending circumstances.”

The court noted that the trial court heard all the witnesses and concluded that the plaintiff was overly sensitive to the noise. The Court of Appeals found nothing in the record which would require a different conclusion.

This is an interesting case that serves once again to demonstrate that first nuisance law is not effective for the adjustment of neighborhood concerns ordinarily, and second, that not every wrong has a remedy.

Judicial Review of Jackson Law Decisions

The Tennessee Supreme Court yesterday issued its decision in Brundage v Cumberland County, concluding that review of a decision made pursuant to the Jackson law, Tenn. Code Ann. §§ 68-211-701 to 707, may be obtained by filing either a statutory writ of certiorari or a declaratory judgment action and that the courts should liberally construe a pleading so that review may be obtained. For example, in this case, a petition for review was filed which did not meet the requirements of the statutory writ of certiorari. Rather than construing it as a declaratory judgment action, the trial court dismissed the case. On appeal, the Supreme Court reversed, ordering that the pleading be construed as a declaratory judgment action and that de novo review of the decision by the local legislative body be obtained thereby.

The decision of the Supreme Court in this case is consistent with its past construction of cases in which common law writs of certiorari were filed where a declaratory judgment action should have been, Fallin v. Knox Cnty. Bd. of Comm’rs, 656 S.W.2d 338, 342 (Tenn. 1983) and cases in which declaratory judgment action was filed but a common law writ of certiorari should have been, McCallen v City of Memphis, 786 S.W.2d 633, 640 (Tenn. 1990). The decision here seems to follow that flexible approach to construction of pleadings.

Define Family?

The definition of the term “family” is almost always a key provision to focus on any zoning ordinance. If that definition is for some reason legally indefensible, it may subject the entire zoning ordinance to a challenge. Usually, the biggest issue in such definitions has to do with the number of unrelated persons who may live together as a family.

Metro Nashville’s definition of family is is fairly typical:

"Family" means one of the following:

1. An individual, or two or more persons related by blood, marriage or law, or, unless otherwise required by federal or state law, a group of not more than three unrelated persons living together in a dwelling unit. Servants and temporary nonpaying guests having common housekeeping facilities with a family are a part of the family for this code;

2. A group of not more than eight unrelated mentally retarded, mentally handicapped, or physically handicapped persons, including two additional persons acting as houseparents or guardians, living together as a single housekeeping unit in accordance with Tennessee Code Annotated § 13-24-102. For purposes of this subsection, 'mentally handicapped' and 'physically handicapped' includes persons being professionally treated for drug and/or alcohol dependency or abuse. For the purposes of this subsection, "mentally handicapped" does not include persons who are mentally ill and, because of such mental illness, pose a likelihood of serious harm as defined in Tennessee Code Annotated § 33-6-501, or who have been convicted of serious criminal conduct related to such mental illness.

3. A group of not more than eight unrelated persons over the age of sixty-five, including two additional persons acting as houseparents or guardians, living together as a single housekeeping unit.

Limiting the number of unrelated persons living together to three is a fairly standard approach. Notice that in the third section of Metro’s definition, if the unrelated people are over the age of 65, eight persons are permitted to live together as a single housekeeping unit. I’ve never seen any case law on this, but I wonder whether the restriction in part 1 is somewhat undone by the provisions of part 3. More specifically, does the discrimination in favor of the elderly in part 3 have the effect of creating an equal protection violation when compared with part 1? Maybe someday the courts will give us an answer.

Recently, in McMaster v. Columbia Bd. of Zoning Appeals, 2011 WL 6156995 (S.C. 12/12/2011), the South Carolina Supreme Court upheld a provision similar to Metro’s part 1. The zoning ordinance in Columbia, South Carolina defined “family” as "an individual; or two or more persons related by blood or marriage living together; or a group of individuals, of not more than three persons, not related by blood or marriage but living together as a single housekeeping unit."

The important constitutional question raised in these cases, and there are quite a few of them, is whether there is a violation of the individual’s right to privacy by virtue of the zoning restrictions. As Justice Marshall said, in dissent, in Village of Belle Terre v. Boraas, 416 U.S. 1 (1974):

The choice of household companions—of whether a person's "intellectual and emotional needs" are best met by living with family, friends, professional associates, or others—involves deeply personal considerations as to the kind and quality of intimate relationships within the home. That decision surely falls within the ambit of the right to privacy protected by the Constitution.

Notice I said in dissent: the US Supreme Court upheld the municipal ordinance which limited a family to to unrelated individuals. The ordinance read as follows:

"[o]ne or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants. A number of persons but not exceeding two (2) living and cooking together as a single housekeeping unit though not related by blood, adoption, or marriage shall be deemed to constitute a family."

In any event, after this US Supreme Court decision, a large number of state Supreme Court’s got involved with a result turning generally on the perspective of the various courts. For example, in New Jersey, in State v. Baker, 81 N.J. 99, 405 A.2d 368 (1979), struck down an ordinance limiting to four the number of unrelated persons:

One (1) or more persons occupying a dwelling unit as a single non-profit housekeeping unit. More than four (4) persons * * * not related by blood, marriage, or adoption shall not be considered to constitute a family.

Actually, the New Jersey Supreme Court seemed to rely less on the right of privacy, and more on the fact that the classification system did not seem to work in the overall zoning context. For example,

The fatal flaw in attempting to maintain a stable residential neighborhood through the use of criteria based upon biological or legal relationships is that such classifications operate to prohibit a plethora of uses which pose no threat to the accomplishment of the end sought to be achieved. Moreover, such a classification system legitimizes many uses which defeat that goal. Plainfield's ordinance, for example, would prohibit a group of five unrelated "widows, widowers, older spinsters or bachelors — or even of judges" from residing in a single unit within the municipality. On the other hand, a group consisting of 10 distant cousins could so reside without violating the ordinance. Thus the ordinance distinguishes between acceptable and prohibited uses on grounds which may, in many cases, have no rational relationship to the problem sought to be ameliorated.

Returning to the South Carolina Supreme Court, it basically relied upon the US Supreme Court decision: “as many other states have found, we find the rationale of Belle Terre persuasive and find there is a rational relationship between the Ordinance's definition of "family" and the legitimate governmental interests the Ordinance seeks to further”.

The ordinance was rational and the court found no privacy interest in the householders that would require a more exacting standard of review. As a result, the South Carolina ordinance was upheld.

While my thought is that these ordinances should be drafted differently and that a restriction on the number of people who wish to reside in a home as a family is inappropriate, the Tennessee Supreme Court most likely would follow a more traditional view and like the South Carolina Court, most likely uphold the Metro Nashville ordinance, and others similar to it. Maybe one day we’ll get a case here in Tennessee and get a chance to see what the Supreme Court holds.

When to file the appeal: MS and TN

In interesting case out of Mississippi, comparable to the cases here in Tennessee, the Mississippi Court of Appeals recently reiterated that the 10 day time limit for an appeal from a decision of a local land use board begins on the date of the hearing before the board, not the date on which the minutes are approved. Alias v. City of Oxford, 70 So. 3d 1114, 1116 (Miss. App. 2010), reh’g denied (May 24, 2011), cert. dismissed, 69 So. 3d 767 (Miss. 5/24/2011). The court cited its earlier decision in Rankin Group v. City of Richland, 8 So. 3d 259, 261 (Miss. Ct. App. 2009), which held similarly, based on the statute, Mississippi Code Annotated section 11-51-75 which provides:

Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision . . .

 The appellant argued that the judgment or decision was not final until the minutes of the local zoning board or planning commission are approved at a subsequent meeting. The Mississippi Court of Appeals was having none of it: both in the original Rankin case and in this case, the court concluded that the appeal had to be filed within 10 days of the date on which the judgment was rendered (to use Tennessee language) as opposed to when the judgment was actually entered by means of the minutes.

As we have discussed here several times, the well-known Tennessee case,  Advanced Sales v Wilson County, 1999 WL 336305 (Tenn. App. 1999) holds somewhat similarly. There is an important difference in that Judge Cantrell, writing for the Tennessee Court of Appeals, concluded that there was a writing signed by the secretary of the board, with a checkmark indicating that the case had been denied, and that the writing memorializing the decision of the board sufficiently so that the 60 day timeframe within Tennessee began to run on the date of the meeting. Absent such a document (really, a scrap of paper), under Tennessee law, the 60 days would not begin to run until the entry of the minutes.

However, as I have said on so many occasions, attorneys for parties wishing to appeal cannot rely on the customary procedure of adopting minutes at a later meeting. Given the conclusion in Advanced Sales, to be safe, any attorney filing an appeal from a local land use decision should file within 60 days of the date on which the decision was orally announced by the board. Otherwise, there is a risk that a scrap of paper similar to the one in Advanced Sales might have been signed and included in the record on the date of the hearing, meaning that any appeal must be filed within 60 days of that date. The risk is too great to ignore this possibility and so all appeal should be filed within 60 days.

Finally, I have written and anticipate that a new piece of legislation, the Tennessee Land Use Review Act, will be introduced before the Tennessee General Assembly at its next session. The Land Use Review Act, if passed, will replace the common law writ of certiorari as the mechanism by which to file an appeal from a local land use administrative board. Hopefully, it will make the process much less complicated and clarify issues such as this one. Section107 of the proposed act addresses this issue, retains the ruling in Advanced Sales capitalize advanced sales, and extends it so that a petition for land use review must be filed within 60 days of the date of the meeting at which the administrative land use decision was made… without regard to whether any writing memorializing the decision has been created, entered, or approved. Although quite frankly, I have always disagreed with the holding of Advanced Sales, it has been the wall of the state for at least 10 years and most land use planning attorneys are well familiar with the by now. Rather than change the rules again, it seemed to me in drafting the Land Use Review Act that all we really needed was uniformity in the application of the 60 day timeframe, so that it didn’t make any difference when the 60 day started, so much as it was clear as to when it does start.

As a result, the Land  Use Review Act attempts to make clear that, like the holdings by the Mississippi Court of Appeals, in Tennessee, the 60 day time for filing an appeal begins to run on the date of the meeting where the ruling is announced, and not from the date of the adoption of the minute entry.

By the way, my original reason for disagreeing with the holding of Advanced Sales, was that I have always believed that having a copy of the minutes which indicate clearly the reason for the decision by the local administrative body makes for a better decision as to whether to file an appeal in the first place. If the decision of the board is well thought out and recorded in its minutes, it may be that I conclude that there is no reason to file an appeal because I probably can’t reversed the board in any event, especially given the fact that the standard of review in such appeals is quite high (illegal, arbitrary and capricious, or beyond its jurisdiction). A scrap of paper, on the other hand, signed by the Secretary, with the word denied circled on it, fails to give that level of specificity, and leaves the attorney in doubt as to what the basis of the ruling might’ve been.

If the attorney was not at the hearing before the zoning board or planning commission, unless a transcript of the hearing is prepared, the attorney will have very little knowledge as the basis upon which the board made its decision. That was true back in 1999, but today, many of the zoning board some planning commissions record their meetings digitally and these recordings can be obtained by counsel for a very small fee. For example, Metro Nashville will provide a DVD of the zoning board meeting for a dollar. As a result, even if you don’t have the benefit of a minute entry or an order from the administrative tribunal, the attorney can frequently obtain a copy of the digital recording and see what actually happened at the zoning board. As a result, the lack of a minute entry these days is less difficult to overcome.

In any event, keep your eyes out for the Tennessee Land Use Review Act, which will hopefully be introduced before the Tennessee General Assembly in January. Once the bill is introduced, we will discuss its provisions in more detail.

Failure to Exhaust and the Tn NCFPA

Sometimes I’m sure I sound like a broken record but the Tennessee Court of Appeals recently released yet another case dealing with the failure to exhaust administrative remedies in the context of an interpretation of the Tennessee Non-Conforming Properties Act, Tenn. Code Ann. § 13-7-208. Prime Locations v Shelby County (Tenn. App. 2011). We’ve discussed this issue several times, most recently on August 5, 2011, and while there certainly cannot be any question but that the Tennessee appellate courts have given us plenty of notice that you must first exhaust administrative remedies before pursuing an action involving interpretation of the TNCPA, we still seem to file cases which are lost because of a failure to exhaust those administrative remedies.

In this most recent case, Prime Locations sued over an interpretation of the TNCPA as applied to billboards. The company applied for permits but was denied, and rather than appeal the decision to the local zoning board, the company filed a declaratory judgment action seeking a determination that the TNCPA controlled and that they were entitled to their permits. The trial court found that the TNCPA did apply. The Tennessee Court of Appeals reversed. Essentially, the court held once again, that the case had to be dismissed for failure of the company to exhaust its administrative remedies. The court cited to Thomas v. Shelby County, 2011 WL 3558171 (Tenn. Ct. App. July 21, 2011), which held similarly. Actually, it is a little interesting to note that the Thomas case involved an appeal under the state Administrative Procedures Act, whereas this case came up under the local planning jurisdiction and the common law doctrine of failure to exhaust. The court seems to confuse the two somewhat, but certainly the practical impact of the cases is the same.

And once again, as I said back on August 5, while the decision certainly is grounded amply by Tennessee precedent, I still contend that the result is incorrect. In its simplest form, the argument is that zoning boards don’t have the power or jurisdiction to construe Tennessee state law. They do have the power to construe the local zoning ordinance. But §208 is not part of the local zoning ordinance. It’s the Tennessee state statute and should be construed only by the courts of Tennessee.

There is however another way to approach this situation. Applied to the board of zoning appeals, and assuming a that the board rules against the applicant, file a petition for a statutory writ of certiorari, which allows the court to substitute its judgment for that of the zoning board. The statutory writ of certiorari is not usually available in zoning cases, but in a situation where you are arguing that the use is legally nonconforming, a strong case can be made that the administrative decision-maker cannot take away a vested right and that the court is permitted to review the decision and base its decision on what the court thinks is appropriate. Contrast this situation with a variance request: there, the applicant is asking for a special relaxation of the rules as applied to his property. He’s asking for a favor in effect. But in the case of a legally nonconforming use, the property owner is asking for no favor. He is saying that he has a right which existed prior to the effective date of the applicable zoning ordinance, and that it simply illegal to take that vested right away from him. Under those circumstances, somewhat like the revocation of a law license or a medical license, the court under the certiorari process, would be entitled to review it de novo and make its own decision.

The Tennessee courts may not accept this argument. It certainly has not been made so far as I know and there is no appellate court decision on point. But if you have a legally nonconforming use, and you are forced to go to the zoning board, if the zoning board decides against you, an appeal under the statutory writ is the ideal way of getting the court to review the case without the customary deferential standard to the conclusions of the board.

Board Findings: A Mask for Discrimination?

Yesterday, we discussed an interesting case from Virginia involving the RLUIPA. That discussion focused on the holding of the court that the RLUIPA furnished no protection because the day school under consideration there was secular in nature and hence not subject to the protections of the act. The case is Calvary Christian Center v Fredericksburg, 2011 WL 5843641 (ED Va 2011).

Today I'd like to address one other issue that is interesting to me within the context of that decision. Remember that the church applied for a special use permit but was turned down by the local legislative body. The reasons advanced for the denial included the number of group homes and group facilities already functioning in the Fredericksburg area; the propriety of Fredericksburg providing services to special-needs students from outside the area; the nature of the disabilities of the Fairwinds students; the operation of Fairwinds; and the safety of the day care students. My thought today is whether these reasons really amount to a valid basis for the denial.

First, the city contended that there were already too many group homes and facilities functioning in Fredericksburg. Why is this a decision that the local government is permitted to make? Is this not a society that depends on supply and demand to make these kinds of decisions? Perhaps the school will take students from other schools that are currently operating because it's a better school? For the city to make a decision based on the number of existing facilities has always struck me as improper. What essentially is happening is that the city is favoring businesses which are already existing and discriminating against new arrivals. The zoning power is not designed to keep people out particularly people where, as here, who suffer from emotional and mental disabilities.

Remember that the US Supreme Court has already invalidated the denial of a conditional use permit for a group home under somewhat similar circumstances. City of Cleburne v Cleburne Living Center, 473 US 432 (1985). in fact, as a result of that case, there is at least some thought that conditional use permit should not even be required for such activities, including a decision from the Sixth Circuit.

In any event, denying a conditional use permit because there are already too many similar facilities has always seemed to me as a mask for irrational decision-making and a way to hide discriminatory animus.

The second reason was because several of the students would come from outside of the city to attend this private school. Once again, this reasoning strikes me always as specious. I'll bet that the customers to the local malls who come in from outside the city are welcomed with open arms. There is no fear about those people bringing their money into the city. It strikes me as discriminatory and frankly almost unconnected with land use as to where the people come from. The question is what is the severity of the impact on surrounding land uses, not where the users may ultimately be from.

The third reason advanced was the nature of the disabilities of the students themselves. Once more, this certainly seems like a rationale motivated by discrimination and not any valid land use planning concept. unless there was some proof that the specific disabilities was somehow have an untoward impact on the surrounding land uses, the specifics of the disabilities are largely irrelevant. Again, part of the decision in the US Supreme Court decision, City of Cleburne, was that the reasons advanced for denial masked the real reasons which were an underlying discrimination. That is certainly what seems apparent in this third reason.

Finally, the fourth and fifth reasons, were the nature of the operations and the safety of the students. The opinion is not much more specific about this and so it's unclear as to what precisely was at issue here. Certainly, if there was any kind of safety issue, those would have to be addressed. However, one would certainly think that if the operation met the requirements of the International Building Code for this type of occupancy, the safety requirements would be completely met. Furthermore it's not clear what type of operations the city was concerned about and this may very well be simply another way of masking discriminatory animus.

Overall, the reasons advanced by the local legislative body, without regard to the RLUIPA, or the First Amendment to the federal Constitution, seem highly unlikely to support a decision denying this special use permit. Frankly, it seems to me that the District Court to easily accepted the rationale advanced by the city. As the United States Supreme Court held in the Cleburne case, unsubstantiated fears of the local citizenry are insufficient by themselves and fall under the rational basis doctrine of the Equal Protection Clause. So to should this denial by Fredericksburg. The reasons advanced, based on the information contained in the federal decisions, seem extraordinarily sketchy and written in a way to mask discriminatory motivations.

Secular Purpose Doctrine in the RLUIPA

An interesting decision from the Eastern District in Virginia, relating to the RLUIPA was handed down last month concluding that the provisions of the act did not protect a church which wanted to lease space to a small school which provided education to children with emotional and mental disabilities. Remember that the federal act (RLUIPA) is somewhat more restrictive then the Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407. While the definition of religious exercise under both acts is similar (the federal act defines it as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 USCA § 2000cc (7)(A) and the Tennessee act, defines it as “exercise of religion under article I, § 3 of the Constitution of Tennessee and the first amendment to the United States Constitution”) the definition of "substantial burden" under the state act is much broader. Even without regard to the substantial burden definitions, one has to wonder whether a Tennessee judge might be a little more inclined to view religious activities on a broader scope.

In this case, Calvary Christian Center v Fredericksburg, 2011 WL 5843641 (ED Va 2011), the church applied for a special use permit from the local legislative body in order to allow the church to lease space to a private school, Fairwinds Day School, which has 12 students all with disabilities meriting private educational facilities. It is also worthy of note that the Fairwinds Day School operates on a for-profit basis. The local Planning Commission recommended approval of the application, but on presentation to the local legislative body, the application was denied. Several reasons were advanced, including the number of group homes and group facilities already functioning in the Fredericksburg area; the propriety of Fredericksburg providing services to special-needs students from outside the area; the nature of the disabilities of the Fairwinds students; the operation of Fairwinds; and the safety of the day care students.

The church filed suit in federal court on several grounds, but we will restrict our consideration only to the RLUIPA claim. Although the church alleged that operation of Fairways was an exercise of “sincere religious belief to minister to emotionally and mentally disabled children” the court concluded that the church had not pled any facts “demonstrating that the operation of a day school by a third-party is a religious exercise.” The District Court had noted previously, on an application for a preliminary injunction filed by the church in the same case, that there were insufficient facts to demonstrate that the curriculum and administration of the school were anything other than secular. The court quoted several federal cases, including the Living Water case from the Sixth Circuit, to the effect that “structures used by religious organizations for secular purposes are not necessarily protected as religious exercise.”

Certainly, secular use of religiously owned buildings does not implicate the RLUIPA. However, Living Water did not really turn on that particular issue; the Sixth Circuit did indicate that the RLUIPA was not a blanket immunity from local codes regulations. But from my perspective, the Sixth Circuit relied more on the idea that there was no “substantial burden” under the terms of the RLUIPA and not that the use of the buildings were secular.

Following up on that, perhaps the mistake made here was not offering some religious overtone in the curriculum of the schooling as well as renting out the space to a third party instead of simply either buying the third-party and operating the school on its own as part of the church activities. For example, if a large church with a large campus, rants a part of the campus to a school teaching chess, could that be said to be protected within the scope of the RLUIPA, or for that matter, the broader Tennessee Religious Freedom Restoration Act? Most probably not.

On the other hand, if the church operated the school itself, with a curriculum that included religious studies, it would appear to me that it would be impossible to argue that the use of the leased premises was secular. Under those circumstances, it would seem that most any court would conclude that the operation of the day school would be protected by the RLUIPA, assuming substantial burden imposed by local regulation.

Furthermore, suppose that the school least the premises to an independently run day school, as was the case here, but a part of the agreement was that the curriculum would include religious training consistent with the teachings of that particular church. Once again, one would think, that such activities would not be secular and that they would fall within the protection of the RLUIPA.

Finally, what impact did the fact that the day school was a for-profit business have on the determination this case? Certainly, it would seem to me, that a profit-making enterprise makes it easier for the court to reach a conclusion of a secular purpose or for that matter even a finding of no substantial burden under the RLUIPA. Certainly, if the church operated the school, and did so at a loss, that which strengthened the argument that the purpose was religious rather than secular. Once again, however, having a curriculum that provided for religious instruction strengthens the position of the religious institution. It may be that without such a curriculum, simply operating a day school is an insufficient basis for protection under into the federal or the Tennessee act.

We still have no decisions regarding land use activities under the Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407. Until we get some decisions under the state act, we can only guess as to how broadly its provisions will be construed.

Lack of Findings by Planning Comm: Constitutional Violation!

In an interesting new case from Idaho, the Idaho Supreme Court concluded that the failure of the Zoning Commission (this involves a subdivision application, so this is a planning commission under Tennessee law) to make express findings of fact and conclusions of law sufficient to enable judicial review, was a violation of procedural due process of the neighbors who appealed the decision granting the subdivision approval. The case, Jasso v. Camas Ctny., 2011 WL 5299710 (Idaho 11/02/11), is an interesting illustration of a constitutional violation where the administrative tribunal failed to follow statutory requirements. By the Way, Tennessee has similar statutory requirements for planning commissions requiring findings of fact, although not for zoning boards.

This case suggests that if a neighbor files suit based at least in part on a failure of the administrative tribunal to make findings of fact and conclusions of law, that there might be a constitutional violation, and under Tennessee law, not only might you be able to obtain attorneys fees under the Tennessee Equal Access to Justice Act, TCA §29-37-101 et seq., but in addition, you might be able to sue under the Federal Civil Rights Attorneys Fees Act, 42 USC §1988.

Parking Trailers on Commercial Property

An issue which frequently comes up in codes enforcement cases involves the legality of restrictions on parking commercial vehicles, including tractor trailers, on property whether it be zoned residential or commercial. In a case decided last Monday, the Tennessee Court of Appeals concluded that a regulation of the Town of Smyrna precluded the use of tractor trailers as a means of storing furniture on-site at a local furniture store. Town of Smyrna v Bell, (Tenn App 2011).

The property owner evidently had been storing inventory on-site for his store in tractor trailers for many years, predating the local zoning regulations. The town however had a regulation which required:

In any commercial zone, tractor trucks, whether the cab alone or with a trailer attached, tractor trailers, including trailers and semi-trailers, whether empty or loaded, not attached to a truck or tractor truck, which are not being used for or engaging in normal loading or unloading purposes, or for activities directly associated with normal trucking operations, shall not be parked or stored on a lot unless they are located in a completely enclosed space, which enclosed space shall include a roof, or are located behind the front setback line created by the building closest to the street right-of-way and unless such tractor trucks or tractor trailers are located behind a completely opaque fence.

Interestingly, this regulation was not a part of the zoning regulations, but was instead found in the section of the local municipal code which regulated motor vehicles, traffic, and parking. Notwithstanding that, Mr. Bell contended that since he had been using tractor trailers for the storage activities many years prior to the adoption of the regulation, that the provisions of the Tennessee Non-Conforming Property Act, Tenn. Code Ann. § 13-7-208, applied and protected him from the enforcement of these provisions.

The trial court ruled in favor of the property owner, finding that the trailers were a necessary part of the business and protected under the Non-Conforming Property Act. On appeal, the Tennessee Court of Appeals reversed. The court first noted that not every regulation of activities on private property was a zoning regulation. The Tennessee Non-Conforming Property Act however only applies to zoning regulations and as a result, the property owner is only protected to the extent that the regulation at issue is a zoning regulation.

In the case of Cherokee Country Club v. City of Knoxville, 152 S.W.2d 466 (Tenn. 2004) the Tennessee Supreme Court acknowledged that a municipality’s police power enables it to enact regulations concerning the health, safety and welfare of the community without following the strict planning, notice, hearing and review requirements that must accompany its exercise of its zoning powers. It also recognized that under certain circumstances an enactment that is  ostensibly unrelated to zoning matters may constitute zoning by other means. The court  cautioned that “[a] municipality must not ‘evade the protections thrown about the citizen’s use of his property by the device of labeling a zoning act a mere exercise of police power.’” Cherokee Country Club v. City of Knoxville, 152 S.W.2d at 471-72.

In order to make the determination, the Supreme Court held that in order for the regulation to be deemed a zoning regulation subject to the protections of the Non-Conforming Property Act, the regulation must substantially interfere with the use of the land. This is a determination that turns largely on the facts of each case. In this case, the Tennessee Court of Appeals concluded that this regulation did not substantially interfere with the use of the property as a furniture store.

The court noted that there was no evidence that using tractor trailers as storage units was an inherent or necessary trade practice in the furniture industry, and although the owner testified that enforcement of this regulation would put him out of business, there was no evidence supporting that conclusion. On the other hand:

While the enforcement of the ordinance may affect to some degree the method through which Mr. Bell conducts his business, it is undisputed that the town of Smyrna has no objection to his continuing operation of a furniture store on his property. It simply wants him to comply with an ordinance that applies by its terms to all existing businesses in a commercial zone, and, the town is not expressly seeking the removal of the trailers per se. Mr. Bell can comply with the ordinance by moving the trailers behind the property setbacks and enclosing them within an opaque fence. In the alternative, he can remove them and store his excess furniture at some other location.

As a result, the Tennessee Court of Appeals reversed the decision of the trial court. The local regulation precluding the use of storage trailers on commercial property is enforceable, and the Tennessee Non-Conforming Property Act offers no shield from the enforcement of those code provisions.

Ready Mix v Jefferson County: S Ct accepts case for appeal

we have discussed this case previously, when the Tennessee Court of Appeals rendered its decision. See
http://tnzoning.blogspot.com/2011/08/exhaustion-of-administrative-remedies.html

My analysis at the time suggested that the decision of the Court of Appeals was consistent with previous appellate court decisions, but that those cases were decided incorrectly. I suggested that in cases where the land owner relied upon state statutory provisions such as Tenn Code Ann §13-7-208, it is inappropriate for a zoning board to be making a ruling on what is a matter of state statutory interpretation. Certainly, the local zoning board has the power and authority to interpret and construe the provisions of its own local zoning regulations. But that power and authority does not extend to state statutory law; it seems to me, that the judiciary should solely construe those provisions so that they remain reasonably uniform from Johnson City in the East to Memphis in the West.

I also indicated in that previous post, but I felt that it was unlikely that any court would so hold. I believed that the sheer weight of precedent would prevent the court from heading in another direction.

Well, the Tennessee Supreme Court has granted permission to appeal in this case, and maybe the Supreme Court is getting ready to head in another direction. It seems most logical that the court would grant permission to appeal only if there was some significant chance that it disagreed with the opinion below. This should be an interesting determination by the Supreme Court, and it continues the trend over the last several years which the current court has set, hearing more zoning and land use cases and providing answers for issues that up to now we have only been able to debate academically.

Questions of Standing

In an interesting case for Massachusetts, the court dealt with the issue of standing to challenge the decision by the board of zoning appeals. In Massachusetts,

Certain “parties in interest,” as defined under G.L. c. 40A, § 11, are entitled to a presumption of standing as “persons aggrieved,” including (1) abutters, (2) property owners directly opposite the locus (i.e., directly across the street from), and (3) abutters to abutters within three hundred feet of the property line of the Locus. “[T]hose entitled to notice of the proceedings are presumed to have the requisite interest” under G.L. c. 40A and thus enjoy a rebuttable presumption that they are “persons aggrieved.”

The plaintiffs in this case indicated that they were "adjacent abutters." The court concluded that the presumption of standing was adequately rebutted by the applicant and the zoning board, and the burden of production and persuasion then shifted back to the neighbors to demonstrate that they were in some way aggrieved by the decision of the zoning board.

In this case, the plaintiffs hired a traffic engineer to demonstrate that the additional traffic would cause harm to their properties. However, the traffic engineer testified that the increased traffic would only be seven additional trips per day (10 trips per residential household, 17 trips for this elderly care facility). The court concluded that there was insufficient aggrievement for the plan is to have standing and dismissed the case.
Nihtila v. City of Brockton Zoning Bd. of Appeals, 2011 WL 3925596.

In Tennessee, I would suggest that the standing rules at least with regard to certain petitions are more liberal. For example, in Citizens for Collierville v Town of Collierville, 977 S.W. 2d 321 (Tenn App 1998), an allegation that the representative members of a local nonprofit Corporation lived within 2000 feet of the proposed development was accepted as sufficient for standing. in another interesting case, McCrae v Knox County, 2004 WL 1056669 (Tenn. App. 2004), the court accepted as sufficient allegations of "a diminution in the value of their property and loss of use and enjoyment due to the obstruction of their view of the Holston River and glaring lighting allegedly caused by the billboards." 

Because no proof is actually permitted under the terms of the common law writ of certiorari, to the extent that proof of standing is going to be admitted, it should be admitted before the local administrative tribunal. It is not been admitted there, then probably the issue of standing is been waived in any event.

From my perspective, it is far better for the courts to be somewhat relaxed on this issue so long as the neighborhood challengers live reasonably close to the proposed development. One of the reasons that standing should be liberally granted is because many zoning boards frequently blithely ignore the zoning regulations and the State enabling statutes in granting approvals for construction projects. In the McCrae case cited above, the board granted a variance which was clearly illegal. If the neighborhood challengers lacks standing, the clearly illegal decision of the zoning board would have stood. Liberal rules of standing allow neighbors to challenge governmental decisions which many times in the case of local zoning and planning commissions are suspect. If the courts restrict standing, many of these cases where the boards have granted developmental rights illegally will never be overturned.

Telephonic presence at the hearing?

I'm sure it's just a matter of time, but since I began practicing law, I can't remember a situation where a zoning board member attended the zoning hearing by telephone. In a recent case from Maryland,challengers to a nonconforming use argued that the failure of one of the board members to physically attend the meeting and his participation solely by speakerphone was in violation of the state Open Public Meetings Act.The Maryland court rejected the argument. The court found that there was nothing in the Open Public Meetings Act that rendered telephonic participation illegal, and that since the other members of the board, and the other attendees at the hearing could hear the board member through the speakerphone and a board member could hear them through the speakerphone, there was no apparent violation. Tuzeer v Yim, 2011 WL 4537172 (Md Ct Sp App 2011).


The Tennessee Open Public Meetings Act, TCA §8-44-101 et seq., appears to permit participation by telephonic communication. At least there is no prohibition of attendance by conference call.


TCA §8-44-108 does limit participation by electronic or other means, but that section applies only to state government and not to local land use boards and commissions. It would seem, that to the extent that reasonable precautions are taken, telephonic or physiographic participation by board members should be appropriate.


However, the staff of the zoning board or planning commission should be prepared to make certain adjustments so that the physically absent board member has all of the documents that are available to those members present at the hearing. Furthermore, to the extent that new documents are presented by the parties to the hearings, those documents should at the very least be described to the physically absent board member so that the importance and significance of the documents can be evaluated. Certainly it would be better for the absent board member to participate by video graphic means so that he or she could see the documents on camera.


Finally, it is very common in Tennessee for the staff to make short presentations concerning upcoming hearings by way of setting the stage for the ultimate decision. Those kinds of presentations or recommendations should certainly all be submitted to the absent board member so that he or she can review those even though not physically present at the hearing.


By following those simple guidelines, it would seem that electronic participation should present no obstacle to decisions by local zoning boards and planning commissions. Perhaps however it is just simpler to have a couple of alternate members who can substitute if one or more of the board members has to miss a meeting. Certainly it seems much easier in the long run.


I might add, that although there is little or no authority for alternate members in local land use boards and commissions, it seems very likely that any court called upon to determine the legality of such alternative members would conclude that there's nothing inappropriate about them.

Unusual physical features don't always equal a variance

In an interesting case from Philadelphia, the Philly Board of Zoning Appeals granted a number of variances of fairly large magnitude to an applicant who insisted that his hardship was created by the exceptional physical condition of the property. The difficulty was on appeal, that although in fact the property did have some exceptional features, they appear to be unrelated to the variance requested by the owner and given by the board.

The case is Singer v Philadelphia Board of Adjustment, 2011 WL 4501939 (Pa Cmmw. Ct 2011), and the developer sought to construct a 30 story mixed-use commercial building in downtown Philadelphia. Some of the deficiencies included a lack of on-site parking, zero lot line construction (25 foot side yard required), and an increase from the permitted 1200% FAR to a requested 1600%. The developer also asked for a use variance to allow the construction in the tower of a take-out restaurant.

At the hearing before the zoning board, the applicant presented testimony that the design and density of the proposed development were the result of the physical constraints of the property. Based on that testimony, after the hearing, the zoning board issued a decision granting variances as to each of the requested deficiencies as well as the use variance. The board found that the property was unique in that it was midblock between Walnut Street and Sansom, and that it had an irregular shape which wrapped around a pub located on the street level.

The decision was appealed to the trial court which affirmed the decision of the zoning board. However, on further appeal to the Philadelphia Commonwealth Court, the decision was reversed. The court initially noted that the burden on an applicant for a variance in Pennsylvania is heavy, and that the grounds for a variance must be serious, substantial, and compelling. The appellants made the argument that the property was not unique (or, to use the language of our Tennessee statute, exceptional) simply because it wrapped around the back of the street level pub or because it was located in the middle of the block. The appellants suggested that the property could easily be developed if the scope of the project was simply scaled-back. The Court agreed.

The Commonwealth Court began by noting that in the case of the dimensional variances being requested, the quantum of proof was slightly reduced from those involving use variances. Parenthetically, is useful to note that use variances are generally considered to be illegal here in Tennessee; the only type of variances that are properly presented to a zoning board here is a dimensional variance. Notwithstanding the fact that the dimensional variances had a somewhat reduced evidentiary requirement, the applicant still had to show a hardship created by the unique circumstances of the property, and the applicant’s desire to increase profitability on the property could not be substituted for that type of proof.

In fact, the court noted that the variances to exceed the permitted width, to reduce the length of the loading dock, to exceed the floor area ratio, and to eliminate all off street parking resulted in much more than a technical or superficial deviation from the terms of the ordinance. On the contrary, these types of significant requests are more properly addressed by asking for a zoning change rather than variances from the zoning board.

Finally with regard to the request for a use variance so as to allow the use of one of the mid-level areas as a take-out restaurant, required under Pennsylvania law that the developer demonstrate that the property could not be used for a permitted purpose. Since the property was at the time of the application already being used as a parking lot, there was ample proof that one of the permitted purposes was appropriate for the property.

One final interesting point about this case is that the Philadelphia Zoning Ordinance includes a list of requirements for variances which is very similar to the old Metro Nashville variance requirements. Those requirements were changed greatly when the new zoning ordinance was adopted for the city of Nashville 1998. I always wondered where the original list had come from (the planning staff in place when I first started work for Metro in the late 1970s told me that the ordinance had been put together out of provisions from many other cities in the country) but I had never realized the connection between the provisions for variances in Metro’s old zoning ordinance and those found in the zoning provisions in Philadelphia. It’s an interesting connection.

NJ's Time of Decision Rule

On May 5 of this year, a new law took effect in New Jersey changing its “Time of Decision” doctrine. Up until then, New Jersey had always followed the rule that if a change in the law took place between the time of an application and the time of issuance of the approval, the new law was effective. This was true even if the new law was introduced and passed in direct response to the application. In other words, if the municipality changed the rules during the course of the game, that was okay.

The new law changes that. It reads:

Notwithstanding any provision of law to the contrary, those development regulations which are in effect on the date of submission of an application for development shall govern the review of that application for development and any decision made with regard to that application for development. Any provisions of  an ordinance, except those necessary for the protection of health and public safety, that are adopted subsequent to the date of submission of an application for development, shall not be applicable to that application for development.

NJSA 40:55D-10.5.

How the law will be interpreted will certainly be interesting. The last sentence, excepting new laws “necessary for the protection of health and public safety” could certainly be argued on virtually any municipal ordinance. But overall, this is a welcome advance and certainly something which would be appropriate here in Tennessee. We follow the same old rule, allowing municipal government to change the rules during the course of the game if it so desires. The trouble with that is that ultimately allows for abuse: the rules are changed simply to stop a particular project without really evaluating the project's desirability.

Tennessee should follow the bright line approach that a significant number of states are now following, including it would appear, the state of New Jersey. Once the application is filed, only the rules applicable at the time of the filing of the application would apply to the project. Any new rules would apply to new projects, but not to projects which have already submitted the application. Perhaps someday in the future legislation to that effect could be considered by the Tennessee General Assembly.

Cash v Wheeler: Appealing to the City Council

Yesterday’s decision by the Tennessee Court of Appeals in Cash v Wheeler continues the slow abrogation of the powers of local zoning boards. In Cash v Wheeler, the issue was whether or not the city of Knoxville could properly provide for an appeal from a decision of the zoning board up to its legislative body. While some states clearly hold that only the zoning board has the power to grant variances, the Tennessee court found that such an appeal was entirely appropriate under the Tennessee Zoning Enabling Statutes, Tenn. Code Ann. § 13-7-201 et seq. One state with enabling language very similar to ours in Tennessee experimented with these direct appeals but ultimately gave up on them. Surely the reason for this is the inherent difficulties of having political officers make determinations that are administrative in nature, requiring due process, not just political judgments.

In this particular case, the neighbors appear to have won, but given the political nature of the legislative body, perhaps this ruling is more advantageous to developers. If the zoning board won’t grant the variance, an appeal to the local legislative body may provide the desired relief. After that, the neighbors will have to appeal to court and the cost inherent in that process may make it more difficult for them to do so.

Only a short time ago, the Tennessee Court of Appeals found that the Metro Council has the power to consider a case before it went to the Metro Board of Zoning Appeals. The real issue in all of these cases has to do with the type of hearing afforded by the local legislative bodies. Those bodies, especially here in Metro Nashville, with its 40 person Council, is not really equipped to provide due process to an applicant for administrative relief. In fact, in the Metro case, no notice and no opportunity to be heard were provided at all.

The bottom line here is that land use planning issues and controversies are complicated enough without adding an extra layer of controversy when a legislative body attempts to make administrative decisions.

Exhaustion of Administrative Remedies

A question which comes up from time to time involves the issue of failure to exhaust administrative remedies in the context of nonconforming properties. The Tennessee Court of Appeals reaffirmed several previous cases requiring that the administrative remedies be exhausted before appealing to a court of law or equity in Ready Mix v Jefferson County (June 9, 2011). In this case, the plaintiff filed a declaratory judgment action alleging that it had a vested right to operate a quarry and that there was a pre-existing non-conforming use of the property for mining quarrying. The plaintiff alleged that the use was non-conforming under both the local ordinance and the Tennessee Non-Conforming Property Act, Tenn. Code Ann. § 13-7-208. The trial court found that the quarry was legally nonconforming and that there was no need to exhaust administrative remedies before filing the declaratory judgment.

On appeal, the Tennessee Court of Appeals reversed. Citing several cases from the appellate courts of Tennessee, the court concluded that at least as a matter of prudence, exhaustion of administrative remedies was required under Tennessee law so as to allow local officials to make an original decision concerning zoning controversies.

Certainly, the decision by the Court of Appeals is consistent with previous case law. However, under the circumstances relating to a non-conforming property, whether this line of cases is correct is open to question. Certainly, to the extent that the property owner relies on the local ordinance and its provisions relating to non-conforming properties, an appeal to the zoning board should be required before proceeding to court. The zoning board is empowered by the relevant statutes, in particular, Tenn. Code Ann. § 13-7-207 (1) to hear appeals where there may be an error in any order of the municipal zoning official.

Nevertheless, §13-7-208 is not an ordinance adopted pursuant to the enabling legislation, it is rather a part of the enabling legislation itself. Furthermore, it acts as a restriction upon the discretion of the local governmental officials. There is no indication anywhere that a local zoning board should be able to directly construe a provision of Tennessee state law such as this particular statute. Certainly, we don’t want different results in Nashville when construing this statute from the results obtained in Memphis when construing the same statute. Yet if local zoning boards are permitted to make those decisions, that’s exactly what we are asking to get. Inconsistent results.

Zoning boards don’t have the power or jurisdiction to construe Tennessee state law. They do have the power to construe the local zoning ordinance. But §208 is not part of the local zoning ordinance. It’s the Tennessee state statute and should be construed only by the courts of Tennessee.

For example, part of the statute requires that no expansion of a nonconforming property may be made if it creates a nuisance. Nuisance law is difficult enough when a trial judge is giving direct instructions to a jury; allowing a lay board to make decisions about what might be a nuisance seems totally inappropriate.

From my perspective, a declaratory judgment such as the one filed in this case should be allowed to proceed without exhausting administrative remedies because the state policy should be to allow Judges, not zoning boards, to construe Tennessee statutory provisions.

As I have mentioned above, at this point, it seems to me that the horse is out of the barn. Not only does the Ready Case itself rule against my argument, but there have been several others ruling similarly, and it’s unlikely now that any court would accept my argument.

However, attorneys representing property owners may switch to a different strategy. Instead of filing an action for declaratory judgment themselves, it may be far preferable to sit back and require the County to sue the property owner. Frankly, there are several advantages to this strategy. First, a court of law or equity will make the initial decision, not a board of zoning appeals. Second, an added benefit, is that the burden of proof will now be on the local government to prove a violation as opposed to placing the burden on the owner of the non-conforming property. Finally, the well-known rule of statutory construction, that zoning ordinances are to be strictly construed against the local government and in favor of the property owner is more likely to be enforced in accord of law as opposed to a board of zoning appeals.

In fact, when you consider that the property owner may ultimately get a better hearing in the court, there is often no incentive for the property owner to file suit on his own. Furthermore, it cast doubt on the efficacy of the doctrine of exhaustion of administrative remedies in the zoning context. If all the property owner has to do in order to get a hearing before a court of law is sit back and challenge the local government to sue in state court, there is often no reason to do otherwise. In fact, in these kinds of situations, I always make a judgment call as to whether I think I can more easily persuade the local board of zoning appeals of the correctness of my position versus how difficult it might be to persuade the local judge. These kinds of judgment calls have to be made on a case-by-case basis obviously, but frequently I find it easier to persuade a judge that I am correct.

One other thing is worthy of consideration here. Under the Tennessee Equal Access to Justice Act, Tenn. Code Ann. § 29-37-101 et seq., attorneys fees for a successful property owner may be recovered if the government acted arbitrarily capriciously. It is probably a little bit easier to recover the attorneys fees by demonstrating arbitrary action in the context of an appeal from a zoning board rather than an original action in state court. The reason for that is that in order to reverse decision of the zoning board, you must demonstrate that it acted arbitrarily and capriciously in any event. If you’ve already proven that, it’s easy for the court to award attorneys fees. In a direct enforcement action by the local government, the court may conclude that your client is not guilty of a zoning violation, but at the same time may not conclude that the local government acted arbitrarily and capriciously in bringing the enforcement action in the first place.

As you can see, the best strategy in these cases is often a judgment call by the attorney. A lot depends on who the members of the local zoning board might be, who local judge might be, the clarity of the factual situation and so forth. These are extremely interesting cases but also very complicated.

Can you lobby the Zoning Board?

A recent decision by the Tennessee Court of Appeals opens a can of worms concerning lobbying in the context of administrative decision-making once again. In Binkley v Metro Board of Zoning Appeals (June 1, 2011), the Tennessee Court of Appeals held that when considering a special exception, pursuant to Tenn. Code Ann. § 13-7-207 (2), the local city council could set up a procedure whereby the application had first to be considered by the city council and only after the application is approved by the council, can it be considered by the Board of Zoning Appeals. Of course, if the application is denied by the city council, the application never makes it to the board of zoning appeals.

In this particular case, no notice was given of the consideration of the proposal by the Metro Council, and there was no hearing and no opportunity to be heard given to the applicant. Unsurprisingly, the application was denied by the Metro Council. In justifying the lack of notice and opportunity to be heard, the Court of Appeals indicated in an almost off-hand fashion that the applicant have the right to contact any of the members of the Council to lobby for passage of the proposal.

This is an extraordinary conclusion. Surely, an application for special exception, where there are special conditions relating to that particular use, must be considered an administrative decision even if it’s being made by what is ordinarily a legislative body. This is after all the holding of the Tennessee Supreme Court in McCallen v City of Memphis, 786 S.W. 2d 633 (Tenn. 1990). After the decision in McCallen, most land use planning attorneys in Tennessee felt that the issue of ex parte contact (lobbying) in the context of administrative decision-making had been settled: it was strictly inappropriate.

But this new case from the Tennessee Court of Appeals, seems to indicate otherwise. It is at least now arguable that ex parte contact is appropriate given the opinion of the Court of Appeals. I’ve been asked to assist in an application for permission to appeal to the Tennessee Supreme Court, and it would seem appropriate for that court to review the case if only to clarify this issue.

However, the related question of whether procedural due process must be given under the circumstances of an administrative appeal seems also to be an important public policy. The statute requires a hearing before the Board of Zoning Appeals; in this case not only was there no hearing before the board, but there was no hearing before the Metro Council. No notice was given; the applicant had no idea that the issue would be decided on that particular night, and even if notice had been given, there is no procedure for the applicant to discuss why the application should be granted. This flies in the face of virtually every zoning statute in this state or any other state. Virtually every zoning decision requires at some point in the process notice and an opportunity to be heard. Yet here’s a case where an application was denied summarily without either.

Finally, to add insult to injury, the reliance by the Metro Council on its Solid Waste Plan is certainly suspect. The solid waste plan indicates that only two waste transfer stations are appropriate in Davidson County. The Metro Council apparently relied on the Solid Waste Plan to deny this application. The problem here is that it is totally anti-competitive. Who says which two waste transfer stations can be located in Davidson County? Why can’t a third waste transfer station come into the county and prove that it is more efficient and can provide the same service at a lower cost? There was no opportunity for the applicant in this case to raise these issues at all because there was no opportunity for him to be heard at all.

All of this seems to indicate the inappropriateness of this particular system used by Metro Government. The Metro Council should not act as some kind of clearinghouse for special exceptions. Special exception cases should go to the board of zoning appeals and be decided on conditions established in the zoning ordinance for that particular use. Interjecting the political process is an abuse of the process.

Churches in Industrial Zones

In a recent federal district court decision from New York, a church proposing to purchase property in a light industrial zoning district, sued the city contending that the city violated its rights under RLUIPA by not permitting a church use in that district. The court expressly noted that zoning claims alleging a “substantial burden” were rarely justified. In this case, the fact that there were obvious options for the religious entity, including expansion at its current site, or buying adjacent parcels to its current site and expanding on those parcels, augured against the validity of the claim. As a result, the District Court dismissed the RLUIPA suit. Wesleyan Methodist Church of Canisteo v. Village of Canisteo, 2011 WL 2149444 (W.D.N.Y., 6/1/ 2011)

There are two interesting questions here. First, under Tennessee law, in particular, the Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407, would the same result obtain? Remember, under the Tennessee act, the term “substantial burden” is defined to mean anything that “inhibits or curtails” religious practice. Does the failure to permit a church in a light industrial zoning district inhibit or curtail religious practice? I don’t know. One of these days we may find out.

The second interesting point here is to contrast this case with a case from California decided recently. In that case, the Ninth Circuit found a violation of RLUIPA where a light industrial zoning district did not permit the religious activities, but there was testimony from a realtor demonstrating that there was little or no other choice for location of the church. International Church of the Foursquare Gospel v City of San Leandro, 2011 WL 505028 (9th Cir. 2/15/2011).

I think probably there was a distinct difference in judicial attitude towards the religious land uses involved between the New York and California district courts, but certainly the lack of any options in California made the case much easier.  It would appear clear that under the Tennessee act, if there are no other real options for the church, there would also be a violation of the Tennessee act, as well as possibly the federal act.

A Man and His Potty

The old expression, “Beauty is in the eye of the beholder,” certainly applies in the context of code enforcement proceedings. In Oak Ridge, a week or so ago, a local homeowner named William Terry, was cited to court for a code violation because he had a planter made out of an old toilet filled with plants and potting soil. Terry contends that the toilet is an antique and a good way to recycle materials which would otherwise wind up in the landfill. City codes officials (and presumably some of his neighbors) seem to disagree. Katherine Baldwin, the city director of community development, said that “toilets are not something that people typically like to look at.” She said the city had launched a campaign to clean up unsightly areas.

The city officials and Mr. Terry squabbled over dictionary definitions of rubbish and toilets. The city attorney pointed out that according to Webster’s dictionary, a toilet is not a flower pot. Mr. Terry responded by pointing out that it didn’t fit the definition of rubbish either because it had been recycled and was not useless waste. The city judge observed that the codes enforcement officials always brought him interesting cases.

A week or two after the hearing in city court, the city judge ruled in favor of Mr. Terry, concluding that the city’s definition of “rubbish,” was so broad as to encompass virtually all types of planters within the city. As a result, finding that the definition was overbroad, the city judge ruled that Mr. Terry could keep his garden potty.

Mr. Terry said he was surprised at the amount of publicity his case received. Now, he said, "I might get two toilets and put them beside what you could call my driveway.''

Click here to  see Mr. Terry stating his case from the Knoxville News Journal.

Who do you sue?

An interesting question which frequently comes up in land use planning litigation involves the identity of the proper governmental respondents to name in a petition for writ of certiorari. When I began practicing law some 30 years ago, the common method was to file against the members of the municipal board of zoning appeals, naming and serving each member individually. I have always assumed that the attorneys preparing these petitions felt that there was no power to sue or be sued in municipal or county zoning boards, and as a result, without that express power, a suit against the zoning board itself was in essence a suit against no one. For example, you could not sue the Metropolitan Police Department; it does not exist as anything other than a subsidiary of Metro Nashville.

Presumably, the same analysis would apply to a municipal or county board of zoning appeals. There is no power given to the board to sue or be sued. In a recent case from Wisconsin, Acevedo v. City of Kenosha, and City of Kenosha Zoning Board of Appeals, 2011 WI APP 10, this issue was squarely presented. The petitioner originally sued only the city, but when a motion to dismiss was interposed, the petitioner added the board of zoning appeals.

The court characterized the issue as whether the city was the proper party for a writ of certiorari challenging a decision of the board. The city’s position was that the petition cannot compel any action from the city, and as such, failed to state a claim against the city. The petitioner pointed out that old number of cases decided by the Wisconsin courts named only the municipality as a defendant challenging decisions of boards created by those municipalities. The Wisconsin Court of Appeals agreed that a number of lawsuits had been so filed, but distinguished those cases on the basis that this issue had not been raised and as a result there was no reason to rule on it at that time.

The court noted that WIS. STAT. § 68.13(1), a part of the Wisconsin certiorari provision, was of little help to the petitioner:

Any party to a proceeding resulting in a final determination may seek review thereof by certiorari within 30 days of receipt of the final determination. The court may affirm or reverse the final determination, or remand to the decision maker for further proceedings consistent with the court’s decision.

The court pointed out, that the language concerning a remand to the decision maker, clearly implies that the board or other administrative agency was the proper respondent. The court dismissed the city as a respondent. There was no discussion concerning whether the boards in Wisconsin had the power to sue or be sued and what that might mean for naming of proper respondents.

So what does this tell us about Tennessee? The right of review pursuant to certiorari in Tennessee is controlled by Tenn. Code Ann. § 27-9-101 which provides:

Anyone who may be aggrieved by any final order or judgment of any board or commission functioning under the laws of the state may have the order or judgment reviewed by the courts, where not otherwise specifically provided, in the manner provided by this chapter.

Note the similarity between this part of the Tennessee certiorari process and the Wisconsin statute quoted above. Tennessee provides further. Tenn. Code Ann. § 27-9-104 specifically addresses the “defendants” to be named in the petition. That section provides as follows:

The petition shall be addressed to the presiding Chancellor and shall name as defendants the particular board or commission and such other parties of record, if such, as were involved in the hearing before the border commission, and who do not join as petitioners.

This provision of  Tennessee law seems to settle the issue definitively. But does it? If the board or commission under Dillon’s Rule, lacks the power to sue or be sued, then can petitioner sue what is essentially a nonexistent board, commission, or agency? In fact, in essence, even if the court allows a lawsuit to proceed against a zoning board named all by itself, who does the attorney filing the lawsuit serve? Is the attorney for the city authorized to accept service? There is no statute or rule of law which provides for such service. Certainly, Rule 4.04 (7)  of the Tennessee Rules of Civil Procedure specifically allows service upon a County by delivering a copy of the summons and complaint to the chief executive officer of the county. Similarly, Rule 4.04 (8) allows service upon a municipality by delivering a copy of the summons and complaint to the chief executive officer or the city attorney. But there is nothing in the Tennessee Rules of Civil Procedure with regard to how you obtain service on a county or municipal board of zoning appeals if the County or city themselves are not proper parties.

Bolstering this argument somewhat is Rule 4.04 (6) which expressly provides for service of process upon the state of Tennessee or “any agency thereof,” by serving the Attorney General. Notice that the agencies of the state can be sued and served by service through the Attorney General. There is no similar provision for service on county or municipal agencies, boards, or commissions. So the question remains here in Tennessee, if you must sue the board of zoning appeals alone, how do you obtain service other than by suing each individual member, which seems anachronistic and, dare I say it, idiotic.

Well, as you can tell, I’ve given some thought to this matter over the years. It’s not clear to me why. When you play with zoning issues as much as I do in your practice, your mind seems to just conjure up these issues that frankly, nobody else in the civilized world really cares about. Having said that, it seems to me that there is a simple solution, and it is the one that I employ in all my zoning and land use litigation.

I simply name the city or county, and then tack on the words “acting by and through its Board of Zoning Appeals.” Such as, for example, “Metropolitan Government of Nashville and Davidson County, acting by and through its Board of Zoning Appeals.” Let’s assume for a moment that this strategy of actually suing the city or county is incorrect. Assume further, that the city or county moves to dismiss the petition based on a failure to name the correct parties. While it is certainly true that the Tennessee appellate courts have over the last 10 or 15 years developed hypertechnical requirements for filing petitions for writ of certiorari here in Tennessee, I simply cannot believe that any trial or appellate court would find that this manner of naming the city or county, acting by and through its board of zoning appeals, inappropriate. Even if I’m wrong, and the city or county should not be named, I think the court would allow the petitioner to amend the pleading. Furthermore, since the petition in almost all cases is served on the city or county attorney, and since in almost all cases of which I’m aware, the city or county attorney either defends or refers the defense of the administrative agency out to a private attorney, under the relation back doctrine of Rule 15.03 of the Tennessee Rules of Civil Procedure, the amendment changing the defendant from my designation, to a simpler designation of the Columbia Board of Zoning Appeals, should protect the petitioners right to proceed with the case even after the amendment. That is to say, one would expect that the Tennessee courts would allow the relation back of the amendment changing the name of the respondent to the time of the filing of the original petition, so as to avoid the expiration of the 60 day stature of limitations. The statute is of course jurisdictional; but again my feeling is that the court would certainly allow that relation back.

One final point might be in order here. In some cases, some municipal planning commissions have the power to contract and as a result, I assume the power to sue and be sued. Certainly, if the planning commission can enter into a binding contract with its executive director for the provision of planning services, one would assume that the executive director could sue the planning commission for breach of the contract without the necessity of naming the municipality itself. Under those circumstances, it seems to me that the planning commission itself may be the proper respondent in a certiorari proceeding here in Tennessee without the necessity of also naming the municipal government. I don’t know how many planning commissions are out there which have those kinds of powers, but the Metro Planning Commission certainly does have that power by virtue of the Metro Charter § 11.504 (a) & (b). Out of an abundance of precaution, when I sue the Metro Planning Commission, I nevertheless use the same formulation: Metropolitan Government of Nashville and Davidson County, acting by and through the Metropolitan Planning Commission. But it may not be necessary.

Building Permit information via Smart Phone

In late February of this year, New York City Department of Building Safety announced that it would be providing QR codes on its building permits so that anyone walking past a construction site could obtain information related to the property and construction via smart phone. While most of this information is already available on the department website, this instant access will certainly lead to increased complaints and increased litigation. Notice the QR code in the upper right hand corner of the work permit.

It won't be long before smart phone access to such information will be available all over the country.

Joining an Original Action with the Common Law Writ

Recently, the Tennessee Court of Appeals handed down its decision in Murfreesboro v Lamar Advertising. This is an enforcement action by the city against the sign company to prevent the continued use of an electronic sign constructed illegally. Lamar had previously appealed the city order requiring discontinuation of the use of the sign; 2010 WL 1742077 (Tenn. Ct. App. April 30, 2010) perm. app. den. Dec. 7, 2010. The trial court in this enforcement action concluded that it was barred by the doctrine of prior suit pending. The Court of Appeals reversed, "The two cases do not involve the identical subject matter, and the trial court thus could not have heard the issue the City raises in its complaint or granted injunctive relief in the certiorari proceeding."

This result seems clearly correct under current law. I write today to suggest that the rule that original actions cannot be consolidated with the common law writ makes little or no sense, and has no public policy justification. In Goodwin v. Metropolitan Bd. of Health, 656 S.W.2d 383, 386-87 (Tenn. Ct. App. 1983), the Court said:

Before considering the first issue, we wish to heartily condemn that which appears to us to be a growing practice, i.e., the joinder of an appeal with an original action and the simultaneous consideration of both at the trial level. This Court is of the firm opinion that such procedure is inimical to a proper review in the lower certiorari Court and creates even greater difficulties in the Court of Appeals. The necessity of a separation of appellate review of a matter and trial of another matter ought to be self evident. In the lower Court one is reviewed under appropriate Appellate rules and the other is tried under trial rules. In this Court our scope of review is dependent upon the nature of a proceeding. In this case one matter would be limited by rules of certiorari review and the other would be reviewed under 13(d), Tennessee Rules of Appellate Procedure. Like water and oil, the two will not mix.

The problem for me is that it is not self-evident why joining a so-called original action with an appellate action is somehow difficult. These cases are tried without a jury; even if there was a jury, the court could decide the cert issue and the jury the other claims. Why is that so difficult? Under the Tort Liability Act there is often a need to try a third party to a jury and the government to the court. How different is that? It seems very similar.

Furthermore, aren't there instances where allowing such cases to proceed makes common sense? Suppose there is a zoning board decision which depends on a zoning regulation that the petitioner thinks is unconstitutional. If the petitioner thinks proof is needed to demonstrate unconstitutionality, probably he must file a separate action to challenge the constitutionality. Why not challenge the zoning board decision and the regulation in the same case. Why can't the court figure that out? It's not difficult at all. In fact several of our cases suggest that the legal standard is the same. McCallen v City of Memphis.

There is already one exception: attorneys' fees. A claim under Section 42 USC 1988 for fees can be joined under the UAPA; certainly that holding would also apply to certs. So if the court can award attorneys fees, why not other types of relief?

Writ of Certiorari

Back in August, I wrote a short note about the writ of certiorari as applied in Brundage v Cumberland County. Your can find it here. I complained then (and now) that the writ has outlived its usefuless, at least in terms of review of local government land use decisions. Actually, I have drafted a proposed bill to remove most of the hypertechnical details required in a writ of certiorari, to make review of local land use cases easier. I probably won't get it filed until next year (assuming I can find a sponsor), but it's an effort to simplify the process.

Just a few days back, I heard that the Tennessee Supreme Court has granted permission to review the Brundage case. Permission was granted on Feb 16th; it appears that the Supreme Court may weigh in on this issue. It seems an unusual case for the Court to take for review unless it wants to liberalize the appeals process under the Jackson Law. Perhaps the Court will conclude that the statutory writ is not necessary under the terms of the Jackson Law, and thereby eliminate some of the technical requirements associated with the statutory writ in appealing a local government decision under that law. Such a decision would not really have much impact on the vast majority of land use cases, and would only apply to cases arising under the Jackson Law itself, but hey, it's a start. Any small steps in the direction of making it easier to get a hearing on the merits is movement in the right direction.

We won't know what the Court has in mind until it issues its opinion, and of course, the briefs have yet to be filed. But this case should prove interesting. The decision of the Court of Appeals in the Brundage case may be found here: Brundage v Cumberland County.

Some Observations on Morikawa v ZBA of Weston

Yesterday, we discussed Morikawa v. Zoning Bd. of Appeals of Town of Weston, 126 Conn.App., 2011 WL 341683 (Conn.App.2011), a Connecticut case where the court reversed the issuance of a zoning variance based on the self-created hardship doctrine. Today, it might be useful to compare and contrast the Connecticut case with how a Tennessee court might apply Tennessee law to a similar fact pattern. there are several points I wish to make including the following: the importance of the exceptional physical features clause under the Tennessee zoning variance enabling legislation (Tenn Code Ann §13-7-207 (3)); equitable estoppel issues; and the the minimus theory of zoning variances.


Today I want to focus on the difference between the Connecticut situation and a variance under similar circumstances here in Tennessee. As I alluded to yesterday, the Connecticut variance statute does not emphasize that the undue hardship or practical difficulty must be found in some exceptional situation or condition of the property. The Tennessee statute however does make that quite clear. The hardship or difficulty must be as a result of some exceptional narrowness, shallowness, shape, topographic condition or some other situation or condition of the property. Thus, in Tennessee, the court would not need to reach the issue of self-created hardship. The lack of some exceptional physical condition of the property, different from the surrounding properties, would be sufficient to deny the variance. To be sure, the fact that the violation was created by the property owner makes it even easier, but there is, frankly, no reason to even reach that issue. In the absence of some unusual physical condition of the property, there is no grounds for a variance. The threshold issue has not been met, and there is no need to go further.

As an example, the leading case on variances here in Tennessee is McClurkan v Metro Board of Zoning Appeals, 565 S.W. 2d 495 (Tenn. App. 1977), a case where the property owner converted an existing residential dwelling to a four family residential dwelling. Unfortunately for the property owner, the building was located in a zoning district which only permitted one or two family dwellings, and was thus a violation of the local zoning regulations. While the Tennessee Court of Appeals mentions the self-created hardship, the court relied mainly upon the fact that there was no evidence of any exceptional physical feature justifying the relaxation of the zoning standards. As another example, unpublished case that I tried many years ago, Biggs v Metro Board of Zoning Appeals, the property owner had built his garage 22.5 feet from the side property line, and 25 foot side yard were required. As a result, he asked for a 2.5 foot side yard variance. While I represented the Board of Zoning Appeals, I nevertheless felt very sympathetic to the property owner’s plight. The construction of the garage inside the minimum allowed side yard had simply been in error, but to would cost a substantial amount of money and frankly not benefit anyone. Unfortunately, the property owner on that side of the applicants property, opposed issuing the variance, and the zoning board found no justification for granting a variance. The case ultimately wound up before the Tennessee Court of Appeals, and again, while I was fairly sheepish about representing the board on such a minor deviation from the law, the law of variances in Tennessee is very clear, and there was no way to justify any variance in the fact that the zoning board had not granted one made even easier. The courts defer to the decision of the board and refused to reverse.

The Connecticut court did briefly discuss siting issues and topographic issues but it dismissed those indicating that they were clearly not sufficient to justify the variance. It is unclear why: based on the case, my best guess is that those issues were not dissimilar from other properties in the surrounding vicinity and there was therefore no exceptional physical feature justifying a variance. Again, that most likely would’ve been the end of it in Tennessee.

Two other quick notes are worthy of mention. First, the applicant for the variance argued just up to the edge of an estoppel, but then backed away, evidently based on the fact that Connecticut follows the majority rule, and then estoppel against the building official does not accomplish anything. To be more specific, the applicant argued that the building code official should have discovered the violation of the 35 foot height regulation long before he actually discovered it. Possibly during construction, although it’s not entirely clear what the homeowner’s argument was. If the building code official had discovered the violation during construction, perhaps it could have been corrected before the building was completed, that significantly less cost to the homeowner. Therefore, the homeowner try to argue that the building code official’s failure to discover the violation caused the hardship in some respect. The difficulty here is that the majority rule across the United States, recognized here in Tennessee is well, is that to the extent that there is a violation of building or zoning law, the property owner gains nothing from the failure of the building code official to properly enforce the requirements. The policy reasons for this is that otherwise any mistake by the building code official would work a zoning change or change the building code. And that would be done without a vote of the local legislative body. In other words, the local building code official or zoning administrator would buy Fiat be able to change the requirements of the code. The majority rule across the United States is that this cannot happen. There is no estoppel against the local government based on the actions of the building code official in most circumstances. That is especially true where there is a violation of the law.

Finally, one other quick note. The homeowner also argued that the violation of 2'7" was de minimus and that no showing of any unusual or exceptional physical feature was necessary. The problem of course is that Connecticut law does not recognize de minimus variances, for lack of a better term. Without enabling legislation to specifically authorize such actions, the board had no power or authority to grant in the absence of an exceptional physical feature of the land.

However, it is worth considering the idea of de minimus variances. The plight of the homeowner in the situation is not uncommon; assuming that there was no intentional violation of the law (and one could argue here that perhaps there was based on the fact that the original plans showed a 38 foot tall roof, and at the end of construction, although the plans had been revised, the roof stood at just under 38 feet tall), there can always be some minor violation just because of simple measuring mistakes and other errors. Does society benefit by requiring a property owner to go to great lengths and significant expense to correct a fairly minor violation of the law? From my perspective, the answer is no. It would be well worth having a provision within the Tennessee variance enabling legislation allowing the zoning board to grant a de minimus variance (perhaps we should call it something else, and I’ll suggest the term minor adjustment) where the applicant did not intentionally create the violation, and the violation itself is no more than 10 or 15% of the permitted zoning regulations.

So for example, in the case of the 35 foot height regulation in Connecticut, so long as the property owner did not exceed the height regulation by more than 3.5 feet, the zoning board could grant the minor adjustment without a demonstration that there is any exceptional physical feature justifying that decision. There are several problems with this approach unfortunately. First, property owners may come to feel that they are entitled to the 10 or 15% adjustment. Second, in terms of larger variances where exceptional physical features must be demonstrated, the fact that a 10 or 15% variance can be granted for no reason whatsoever, would encourage applicants to ask for even greater amounts for particular projects. And those requests might seem justified given the fact that the legislature has seemingly given its blessing to a 10 or 15% variance without any particular demonstration of hardship.

On balance, it seems to me that the minor adjustment theory is worthwhile and would make a reasonable and legitimate extension of the powers of municipal zoning boards. It would be interesting to review a large set of variance requests, say from the city of Nashville, to see how many cases involve relatively minor variances where this kind of mistake was responsible for the requested relief. My guess is that a fairly significant quantity of zoning variance cases come about in just this way. And so long as the relief granted is relatively minor, and does no harm to the fabric of zoning protection in the neighborhood overall, it would not seem to be against public policy to allow the zoning board to grant such minor adjustments.