Vested Rights and Variances

I probably spend too much time talking about variances in New Jersey, but as anyone who might peruse my previous posts will know, the New Jersey variance statute is quite similar to ours here in Tennessee. In a recent case, Fernandez v Bloomfield Zoning Board of Adjustment, 2010 WL 5428868, the New Jersey Appellate Division considered a case in which the property owner obtained a permit for a stop work order was issued when it was determined that the construction violated setback in other bulk requirements. The board of zoning appeals denied the requested variance, not because they could not demonstrate that there was an exceptional physical feature (on the contrary, the property was quite your regular in shape) but because the Board found that the variance would not satisfied the so-called "negative criteria," that is, the variance would create a substantial detriment to the public good.

On appeal, the court affirmed the decision of the Board of Adjustment and also addressed the landowners claim that the town should be prevented from issuing the stop work order as a result of the doctrine of equitable estoppel. The difficulty with equitable estoppel or the doctrine of vested rights under the circumstances is that a clear error was made in issuing the permit. In effect, the building permit was void ab initio. The problem is that if the building official could bind the city and change the laws of the city merely by the issuance of a building permit, there would be a lot of modifications to city walls based on an erroneous permit issuance. The rule generally is that there is no estoppel created by the issuance of an invalid building permit. The developer must be careful and must check on his own to ensure that the construction is permitted within the guidelines of the city regulations.

 The Appellate Division agreed with this approach:

The law is clear that to prove equitable estoppel in these circumstances, plaintiffs must establish that the zoning ordinance was ambiguous and the municipal official's interpretation of the ordinance was at least "debatable." [citations omitted] "A less restrictive rule of law for invocation of estoppel against a municipality could invite intolerable vulnerability to mischief at the hands of unethical builders or construction officials." Irvin, supra, 305 N.J. Super. at 660. We do not imply here that plaintiffs acted unethically; we merely acknowledge that there are sound reasons to set a high standard for invoking estoppel based on the erroneous issuance of a land use permit.

Plaintiffs do not argue that the zoning ordinance at issue was unclear or that the municipal official's interpretation was debatable, as opposed to simply wrong. In fact, the record contains no explanation as to the responsible municipal official's interpretation of the zoning ordinance, and it is not even clear which person in the zoning office was responsible for erroneously issuing the permit. Because the zoning office acted contrary to an unambiguous ordinance in issuing a zoning permit, plaintiffs cannot invoke estoppel against the municipality.

Further, the equities do not favor plaintiffs, given the Board's finding that granting the variance would cause harm to their neighbors. As built, the second-story addition was 2.57 feet from the neighbors' property line on the westerly side, instead of the six feet required by the ordinance. As the Board reasonably concluded, in such a crowded neighborhood, that represented a significant incursion on the neighbors' privacy. Further, as previously noted, the Board credited the testimony of the objectors that the addition interfered with their available light and their views of the neighborhood.

 As a result, there was no equitable estoppel. For interesting case with much more serious ramifications, take a look at Park View Associates v City of New York, 71 NY 2d 274 (1988).

The denial of the variance was also affirmed.

Applicants for a variance bear the burden of proving that they satisfy both the positive and negative criteria. See Cohen v. Bd. of Adjustment, 396 N.J.Super. 608, 615 (App. Div. 2007). We agree with [the lower court] that there was nothing arbitrary in the Board's decision that plaintiffs failed to satisfy the negative criteria. Based on the Board's factual findings, which find ample support in the record, granting the variances would have caused some of the very harms the zoning ordinance was designed to prevent, including diminishing the neighbors' light and open space, and invading their privacy. See N.J.S.A. 40:55D-2(c). Therefore, on this record, plaintiffs did not satisfy the negative criteria, and the Board properly denied their application on that basis.

There is nothing unusual in the outcome of this case. But again, it runs somewhat counter to the result that common sense might indicate and serves as a warning to developers everywhere that care must be taken to ensure that the proposed development complies with local regulations.

Tennessee courts do seem to be somewhat more lenient under certain circumstances with regard to the doctrine of equitable estoppel and/or vested rights. There is a somewhat similar case here in Tennessee, Rebound v Goodlettsville Board of Zoning Appeals, 1989 WL 150670 (Tenn. App. December 13, 1989). In that case, the zoning official evidently made a mistake in advising the applicant about the potential use of the property. At the time of the revocation of the building permit, the construction of the facility was substantially complete. Several million dollars worth state. The majority of the court felt that a variance should have been granted, but under Tennessee law, as we have frequently discussed, that is certainly problematic. There was almost certainly no basis for a variance under Tennessee law. In a concurring opinion, Judge Ben Cantrell relied instead on the doctrine of equitable estoppel, feeling that the advice given by the local zoning officials was sufficient to commit the city. As the NJ case above demonstrates, many times that is not enough.

Ransom School Update

The Ransom School case was argued before the Tennessee Court of Appeals yesterday and it will be interesting to see what the Court ultimately rules. we have discussed the case previously on several other occasions; see here and here and here. So far, the owners of the property had been unsuccessful in getting the Metro Historical Zoning Commission or the trial court to agree that there is an economic hardship sufficient to justify some demolition of the school itself. The latest plan does not call for the entire school be demolished, but only at a portion so as to make redevelopment of the property economically feasible. The trial court felt that the economic hardship provisions of the Historic Zoning Ordinance were entirely discretionary. The difficulty is that under the circumstances, the property owner lost approximately 40% of the density of the property immediately after purchasing it from Metro when Metro rezoned the property and lowered the density from 18 to 11 units. It is hard to see how the decision concerning economic hardship can be discretionary under such circumstances. Only time will tell.

Ripeness and RLUIPA

The Sixth Circuit decided an interesting RLUIPA case late last year, Miles Christi Religious Order v. Township of Northville, 2010 WL 5151645 (6th Cir. Dec 21, 2010) , concluding that even though the church had been sued by the township, there was no final decision sufficient for a claim under RLUIPA. The 6th Circuit felt that the church had a duty to go to the zoning board requesting whatever relief might be available. The case is available here.

It is an interesting case from the perspective of the new Tennessee RFRA, Tenn Code Ann § 4-1-407. Will the Tennessee courts, require that the permit applicant apply to the local zoning board before filing suit under Tenn RFRA? While exhaustion of administrative remedies is not technically required under the writ of certiorari in Tennessee, requiring that the zoning board or for that matter, planning commission issue a final ruling would likely assist the courts in having a reasonably clear position from the city authorities of the positions of each party. It is also very possible that no writ of cert should be filed: simply a suit under the Tn RFRA (the procedures are so different under the Tn RFRA that adding them to a writ of cert seems unwise). In any event we will likely find out soon about how these cases should be brought here in Tennessee.

Interestingly, the 6th Circuit noted that the township's oral argument did not display great sensitivity on the topic of religious freedom, quoting the municipal attorney, "“[F]ootball parties and tailgate parties” do not change “the residential nature of the use; whereas, what they’re [church members] doing here, they’re doing religious education and they’re worshipping.” The point evidently being that football watching parties are accessory to the residential use but religious education and worship is not. The Court observed that "one will search in vain for a Freedom to Watch Football on a Sunday Afternoon Act," as distinguished from RLUIPA and the federal RFRA.

The Plan of Nashville

Another book worth owning for the land use professional:

The Plan of Nashville -- from the front flap:


The Plan of Nashville is a community-based vision of how the urban core of Nashville should look and work in the 21st century. The purpose is to help the central city hold its place in civic life.Since Nashville assumed a metropolitan form of government—merging city and county—there have been almost a hundred plans that dealt with some aspect of the center city. This plan is different.

The Plan was conceived and orchestrated by the Nashville Civic Design Center, which is committed to the practice of urban design. This three-dimensional discipline integrates streets and buildings, land use and transportation—a new approach for Nashville.

Rather than taking a top down approach, the design center organized the process of listening to the community. Over 400 citizens attended a series of workshops in downtown and the surrounding neighborhoods to express their opinions and draw their dreams. The center’s staff translated the results into a series of maps and illustrations, with explanatory text—that articulate a three-dimensional vision for the city that will serve as a litmus test for current and future development.

The vision for Nashville includes:
*broad tree-lined boulevards that replace sections of the urban interstates, grand avenues into the city rather than high speed highways through it.
*the Cumberland River as a key focus, its banks treated as a prime place for recreation and residence.
*a balanced transportation system that integrates pedestrian and bike opportunities, as well as mass transit, into an infrastructure long dominated by cars.

Other elements of the Plan feature:
*a brief history focusing on the forces that sculpted the form that Nashville has taken.
*urban design guidelines and policy recommendations as tools to shape future development.
*an explanation of the process that produced the Plan.

Findings of Fact and Zoning Boards

There's always been some controversy concerning findings of fact and conclusions of law in zoning Board cases. Generally speaking, courts across the entire country believe that findings of fact assist the reviewing court in understanding what the zoning board found as a matter of fact, and what their conclusions were as a matter of law. Unfortunately, here in Tennessee, there's been a split of opinion with regard to whether such findings were mandatory. At least one Tennessee Court of Appeals decision ruled that findings of fact and conclusions of law were not required in the zoning Board context, and another Court of Appeals decision ruled that findings of fact were required.

Some local zoning ordinances require findings and under those circumstances, certainly the zoning board must make findings in order to comply with local law. But the real issue always was if there were no local requirements, must the zoning board make findings of fact anyway? Because of the split in the opinions here in Tennessee, a reasonable argument could always be made that no finding was required. That was unfortunate because as mentioned above, such findings are virtually indispensable in trying to assist a reviewing court in understanding how the zoning board arrived at its decision.

Legislation will likely be introduced this year before the Tennessee General Assembly requiring such findings of fact to be made. The legislation which amends Tenn Code Ann. §§13-7-107 and 205 provides:

Each board of appeals shall adopt rules of procedure requiring that the board of appeals:
(1) make findings of fact, statements of material evidence, and statements of reasons forits actions as part of each motion or action of the board of appeals and
(2) keep a record of its resolutions, transactions, motions, actions, and determinations, which shall be a public record.

From my perspective, this is certainly a reasonable piece of legislation, very much overdue. There are several federal statutory provisions which essentially require findings of fact anyway. For example, the federal telecommunications act requires written findings on the part of the zoning board to justify its decisions. If federal statutory provisions are requiring such findings, the various boards of zoning appeals here in Tennessee might as well get accustomed to making findings of fact and conclusions of law in all other cases. It certainly makes it easier to understand how the decision was arrived at, and it is certainly easier to review the case on appeal before a reviewing court.


The various Planning Commissions across the state of Tennessee have always had to make findings of fact under the relevant enabling legislation for both regional and municipal planning commissions. Now sometimes some of the planning commissions fail to make those findings, but it is a requirement and the failure to do so could certainly result in a reversal of the decision of the planning commission. Assuming that this new proposed legislation passes, it will require that the zoning boards across the state of Tennessee follow the same procedural requirements as planning commissions have always had to. It is a laudable step in the right direction.


One final point which I think is important. The proposed amendment requiring findings of fact and conclusions of law does not require that the zoning board make those findings and conclusions on the date of the public hearing before the zoning board. I would suggest that one way to make these required findings and conclusions easier to record, would be to simply follow the same procedure with regard to voting for or against a particular proposal immediately after the public hearing on that proposal has concluded. However, the staff should then be directed (by a standing rule of the zoning board) to draft a minute entry or separate order for each case with suggested findings of fact and suggested conclusions of law. Those suggestions can be presented to the zoning board at the next meeting and they can then be adopted by the zoning board at that time. If the suggested findings as submitted by the staff do not fully encompass the basis of the board's decision, the suggestions can be modified to more closely correspond to the board's decision. Alternatively, if an attorney represented the prevailing party before the zoning board, the attorney could be charged with the responsibility of drafting the required findings of fact and conclusions of law.

By giving the staff additional time to develop appropriate findings, the overall process will be improved. This is essentially how a court of law arrives at its findings. Usually, the court indicates which way it intends to rule, and requests that the prevailing attorney prepare the order.

The requirement of making findings of fact and conclusions of law should not necessarily be perceived as an onerous task by the zoning board. By simply delegating the responsibility for drafting those findings to the staff, and postponing adoption of the findings until the subsequent meeting, the findings can be made in a reasonably simple manner but hopefully with an accuracy which allows reviewing courts to understand how and why the zoning board arrived at its conclusions.

The Zoning of America

Michael Wolf has written a very interesting history of the landmark zoning case in all of the US: Euclid v Ambler Realty. The case was hard fought and extremely interesting, well, at least to urban planners and land use lawyers. It is another book well worth reading especially if you work in the area of land use, and why would you be reading this blog if you didn't have some connection to land use issues?

Here's a link to the University Press of Kansas web site; the book is available on Amazon of course.

Sonny West Auditorium

Sonny West with wife Barbara (L)

The Nashville Tennessean ran a story Sunday on the possible naming of the auditorium at the newly renovated Howard Office Building for Lon F. (Sonny) West. Sonny is the long time Metro Zoning Administrator, appointed 1986. He has worked for Metro since the mid-50's! He has a law degree from Vanderbilt University.

Even before his appointment as the Metro Zoning Administrator he was the legal advisor to Metro Codes and in that capacity worked closely with the Metro Zoning Board. The city has benefited from the expertise that Sonny has always brought to his codes enforcement positions. We all owe a debt of gratitude to Sonny for the professional and sensitive interpretations he has always given the zoning ordinance and other codes provisions. Sonny's breadth of understanding of the interplay between the various codes and the impact of codes administration on our everyday lives is second to none. He is very likely the most knowledgeable codes enforcement official in the state of Tennessee. His knowledge of zoning law is vast: he's forgotten more than I'll ever know!

I first met Sonny when I was a young Metro Attorney in 1978. Because of my youthful ignorance, I often asked Sonny for help trying to figure what the law required under the particular circumstances of a law suit. He was always glad to help out and explain what was going on. Back in those days, the zoning board had a habit of granting variances for no good reason whatsoever. Sonny, in consultation with several members of the Council, worked to get a bill passed that required such appeals to be sent to the Planning Commission as a zoning change, where the matter really belonged. The bill was passed into law, and saved many cases where the board would have illegally granted a variance without any factual foundation, resulting in litigation and increased costs for the taxpayers.

The Tennessean mentioned that he was suspended in 2005 for issuing a permit in violation of departmental policy. The writer did not mention that Sonny was completely exonerated on appeal. In fact, if Sonny had not issued the permit, Metro likely would've been sued successfully for wrongful failure to issue the permit. The real issue was that Mayor Purcell didn't want the permit issued. Sonny did the right thing and followed the law.

It is certainly altogether fitting that the auditorium be named the "Sonny West Auditorium" in honor of this wonderful public employee. Most likely he has spent more time than any other person in the various places, including the auditorium in the old Howard Office Building, advising the Metro Zoning Board, trying to ensure that its decisions were correct under Tennessee law and local zoning ordinances and regulations. He's always done a terrific job for the citizens of Nashville.

Last Harvest

Another interesting book, related to land use issues, follows a developer in southeast Pennsylvania, as he develops a piece of farmland from raw land to a residential subdivision. 

It is definitely worth a read. Highly recommended.

Here's a link the the author's Amazon page: click here.

 

Triangular lot a basis for variance?

During my 30 years of practicing law, I have frequently taught my law students, and forcefully asserted in courts of law and equity here in Tennessee that there must be some exceptional physical feature of the property before a zoning board can grant a variance pursuant to the terms of the Tennessee Zoning Enabling Statutes, Tenn Code Ann §§13-7-109 & 207. However, sometimes it is easy to forget that the exceptional physical feature of the property must be the justification for the variance. The exceptional physical feature must create some hardship or difficulty for the owner which he seeks by variance to address. Just because there is an exceptional physical feature of the property does not mean that you can get a variance for something totally unrelated to that particular physical feature.

In a recent New Jersey case, DeVito v. Middletown Zoning Bd. of Adjustment, 2010 WL 4977105 (N.J. Super A.D. Dec 9, 2010), the owner of a triangularly shaped lot requested a variance from the local zoning board to construct a six foot tall fence along his property line (no more than 3 feet in height is permitted under the terms of the zoning ordinance).

On appeal, the applicant argued that the unusual triangular shape of the lot, the lot fronting on two streets,  and its proximity to the highway and commercial property all served as a basis for the variance because of the need to be screened from the traffic and the commercial properties in the area. He also argued that there were many fences in the vicinity and a denial of his application was arbitrary and capricious and lacked a rational basis.

The Board argued that the application was properly denied because DeVito's lot, although unusual, did not itself create the need for the variance. The uniqueness of the property itself must create the need for the variance. There is nothing inherent in the nature of the lot that prevented DeVito from complying with the ordinance, which was intended to prevent a tunneling effect in the neighborhood that is caused by high opaque fences. The neighboring houses that have high fences did not receive variances. Those fences were either installed without a proper application or were grandfathered as non-conforming, existing uses.

The trial court reversed the decision of the zoning board denying the application. On appeal, the New Jersey Appellate Division reversed the trial court, siding with the decision of the zoning board:

First, [the] hardship does not arise from the unusual nature of the property because the shape of the lot does not cause the need to erect a six-foot fence. Second, the Board's resolution articulated coherent reasons for the denial of the application. These reasons are based on findings that are supported by the proofs before the Board, which was the fact finder. Therefore, the Board's findings are binding . . .

The New Jersey variance provision and the Tennessee variance provision are almost word for word as contained in the enabling legislation of the two states. Therefore, a decision like this one from New Jersey, is especially instructive here in Tennessee. It is important to realize that even though the key threshold issue in any variance case is the existence of some exceptional physical feature of the property, the fact that there is an exceptional feature does not by itself constitute grounds for the issuance of a variance.

Rather, the applicant must demonstrate that the exceptional physical feature causes some practical difficulty or undue hardship. If there is no causation between the difficulty or hardship and the exceptional physical feature cited by the applicant, then the variance and should not be granted. We don't see too many cases like this in Tennessee, although I have tried one or two myself.

Finally, one other aspect of this case which is interesting in the context of the Tennessee enabling legislation, is the Court's discussion of the so-called "negative criteria" are contained in both the New Jersey and Tennessee zoning enabling legislation. The New Jersey statute reads:

No variance ... may be granted under the terms of this section ... without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance. . . .

N.J.S.A. 40:55D-70. The Tennessee statute provides:

provided, that such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zone plan and zoning ordinance.

Tenn. Code Ann. §§13-7-109 (3) &  207 (3). Notice the striking similarity between the provisions. The reason for the similarity is pretty simple: the same nationally known land use attorney, Alfred Bettman, consulted both in Tennessee and New Jersey and the legislation adopted in both states reflects his input.

In any event, the New Jersey court found in this case that the applicant had not presented any proof sufficient to demonstrate that the "negative criteria" were met. "Here, the zone plan expresses a preference in favor of open views in the neighborhood. DeVito failed to produce evidence that the zoning plan would not be substantially impacted by the fence." 

When representing a client seeking a variance, generally in order to provide evidence sufficient to demonstrate compliance with a negative criteria, I will submit a portion of the Comprehensive Plan for that area of the city, and demonstrate that the plans proposed are not inconsistent with the plan. To the extent that there is very little difference between the requirements of the zoning ordinance and the proposed variance, I will certainly also emphasize that small difference. Furthermore, there may be other aspects of the project which will be beneficial to the public good, such as an increase in employment, property taxes, and important or improved visual vista, or, for that matter, anything else which might seem beneficial to the community.

Often times, the applicant simply forgets this provision entirely and there is no evidence submitted in any attempt whatsoever to deal with the negative criteria contained in our zoning statute. Many times, the zoning ordinance does not reference the negative criteria contained in the zoning enabling legislation. But that does not mean that you can ignore it. From my perspective, the fact that the negative criteria is specified in the zoning enabling legislation requires an applicant for a variance to demonstrate somehow compliance with those provisions. Sometimes it takes a little imagination, but the negative criteria should always be addressed. Simply ignoring those provisions might mean the difference between winning and losing in a court of law or equity.

Sign Issues

I have the most fun with the small sign issues and relatively uncomplicated sign cases. Bowden v. Town of Cary, 2010 WL 5071613 (E.D. N.C. Dec 7, 2010) is one such case. Already in a dispute with the city over a street widening, Mr. Bowden spray painted a simple sign in large florescent orange and pink letters on the white siding of his home, reading "Screwed by the town of Cary." The sign overall occupies approximately 48 square feet of the front exterior of his home. The town issued a Notice of Violation because only certain signs are permitted by the zoning ordinance in residential districts. In particular, the sign was in excess of 5 square feet and more than 42 inches in height. Mr. Bowden was given 72 hours to bring the property into compliance, otherwise he would risk a $500 per day fine. The photo to the right is from WRAL.com in North Carolina.

The court found the Cary ordinance similar to the sign ordinance declared unconstitutional in Metromedia, Inc. v City of San Diego, 453 US 490 (1981). The District Court was concerned that the various exemptions rendered the ordinance overall content-based as opposed to content neutral. For example, one of the exemptions included holiday decorations. The court pointed out that presumably "Merry Christmas to the Town of Cary" would be a holiday decoration and exempt. It would not make any difference how big the sign was, what size letters were used, what color of paint was employed, or any of those other relevant and interesting details. The city argued that the ordinance was in fact content neutral, but was unable to persuade the court given the exemptions and the similarity to Metromedia.

Applying the "strict scrutiny" test to the town's sign ordinance, the court concluded that it was unconstitutional. The court could not find any "compelling governmental interest" to justify the content-based regulation. Interestingly, the court noted that the Fourth Circuit Court of Appeals had previously held that neither aesthetics nor traffic safety are compelling governmental interests; the court had no choice but to invalidate the ordinance as applied to the plaintiff's sign. The court issued a permanent injunction preventing the city from attempting to enforce the sign ordinance against the plaintiff.