Monday, February 7, 2011

Depot Property v Town of Arlingotn

The Tennessee Court of Appeals recently released an interesting new opinion concerning zoning changes. In Depot Property LLC v Town of Arlington, the Court of Appeals addressed several interesting issues concerning negative recommendations of municipal planning commissions and the effect on a vote by the local legislative body. We’ll get to that in a moment.

Perhaps more importantly, the court somewhat astonishingly concludes that this case was properly brought as a common law writ of certiorari. The court was evidently persuaded by the fact that the local zoning ordinance required both the Planning Commission and the Board of Mayor and Aldermen to make specific findings that  (1) the zoning amendment is in agreement with the general plan for the area, (2) the legal purposes for which zoning exists are not contravened, (3) the zoning amendment will not have an adverse effect on adjoining property owners unless the adverse effects are outweighed by the overwhelming public good, and (4) the zoning amendment will not benefit some property owners materially to the detriment of the public as a whole. But these four “requirements,” if such they can be called, appear in virtually every zoning ordinance across the state of Tennessee. More importantly, these so-called requirements really do not bind the local legislative body in any way.

Take a look at them. The first is that the proposed zoning amendment must be consistent with the general plan. But state law does not require the local legislative body make decisions “in accordance with a comprehensive plan.” In fact, the Court of Appeals has already looked at a city charter provision was substantially similar language and decided that it did not apply in this way (Family Golf, cited in the opinion). The general plan only offers a point of view as to how the city will develop; it is simply not binding on the local legislative body and the Court reiterates that holding in this case. Since the Court of Appeals concludes that the local legislative body has the power to override the recommendation of the planning commission which is usually based on the general plan, this first of the four requirements really is irrelevant. The local legislative body does not need to make a decision which is in accord with the plan. This may be bad planning, it may be bad law (and certainly I have criticized it myself on many occasions), but it is the law of the state of Tennessee.

The second requirement, that the legal purposes for which zoning exists or not contravened, is so vague as to be entirely meaningless. Can anyone really explain what that means?

The adverse effects on adjoining property owners are the third requirement. Was there really any proof concerning that in this record? A thorough and careful reading of the opinion reveals none. I would suggest that what was really going on here is that under the standards of a declaratory judgment action, the local legislative body didn’t have to consider any of these things. It can do basically what it wants under these circumstances. These requirements are not requirements at all; the legislative body surely does take some of them into account in making the decision, but if it fails to find the presence of one or more of them, it may nevertheless pass the zoning change.

The fourth requirement is that the zoning amendment will not benefit some property owners to the detriment of the public as a whole. And what is that other than a legislative judgment to be made by the local legislative body? These are not administrative requirements such that an appeal must be made pursuant to the common law writ of certiorari. Rather, these are general guidelines which are considered by local legislative bodies as it deems appropriate.

Compare the language of most planned unit development zoning ordinances: they are much more detailed and much more specific about what must be done. The language at issue here is simply not sufficient to give rise to review by common law writ of certiorari. The court did not seem to consider this in any detail, and perhaps the parties both agreed that that was the way that the case should be taken up. Certainly, there is a strong argument that whenever the local legislative body is considering one or two parcels of land to rezone, or even if there are more parcels, but of a very small size, that the rezoning should be administratively considered rather than legislatively. However, the Supreme Court has not adopted that argument and in fact  pretty much rejected it in Fallin v Knox County. The conclusion here that these four extraordinarily general and ambiguous factors somehow convert what should be a declaratory judgment action into a common law writ of certiorari is simply incorrect. A comparison of the administrative regulations for any PUD, including the granddaddy case, McCallen v Shelby County, reveals the extraordinary difference between the level of specificity in PUD regulations versus general zoning amendment concerns. But PUDs almost always have an extraordinarily high level of regulation. Usually, in the cases I’ve been involved in, 15 to 25 pages are devoted exclusively to planned unit development. The four very short, general, and ambiguous factors found here, and found in most other zoning ordinances across the state, are simply insufficient to convert an appeal such as this one from a declaratory judgment action to a common law writ of certiorari

Setting aside the procedural issue, the court’s conclusion on the applicability of the override proviso certainly is correct. Tenn. Code Ann.  § 13-7-204 provides:

The zoning ordinance, including maps, may from time to time be amended; but no amendment shall become effective unless it is first submitted to and approved by the planning commission or, if disapproved receives the favorable vote of a majority of the entire membership of the chief legislative body.

In this case, the local legislative body was composed of seven members. To the members were asked to recuse themselves by the proponent of the amendment which they did. The remaining five members, split the vote with three voting in favor and two voting against. But that leaves the problem of Tenn. Code Ann. §13-7-204 quoted above. The last phrase of the statutory provision requires that if the proposed amendment is disapproved by the planning commission, that it received a favorable vote of a majority of the entire membership of the chief legislative body. Not a simple majority as would be needed if the planning commission recommended favorably but instead the favorable vote of the majority of the entire membership of the chief legislative body. Since the Arlington local legislative body was comprised of seven members, and since the planning commission recommended against the amendment, the proponent had to get four of the seven votes of the entire membership. He received only three votes, good enough for a simple majority of the members present and voting on the night in question, but one short of a majority of the entire membership of the local legislative body as required by the statute.

The author of Tenn. Code Ann. §13-7-204 was Alfred Bettman, the extremely influential zoning lawyer from Cincinnati. As it happens, Mr. Bettman contributed to a book which was published in 1935, just a year after the Tennessee General Assembly passed the statute which we are reviewing. In that book, entitledModel Planning Laws, Bettman provides his preferred forms for zoning and planning  legislation. Section 4 of the Immiscible Zoning Enabling Act, found on page 82, reads as follows:

The zoning ordinance, including the maps, may from time to time be amended; but no amendment shall become effective unless it shall have been proposed by or be first submitted to and approved by the planning commission of the municipality, or, if disapproved, shall receive a favorable vote of not less than two thirds of the entire membership of Council.

Notice the extreme similarity to the version adopted by the Tennessee General Assembly, except for the omission of the language concerning a two thirds majority. The Tennessee General Assembly took out the language requiring a two thirds majority and required simply a majority of the entire membership of the Council. Bettman specifically mentions the two thirds vote requirement on page 63, indicating that the supermajority vote is recommended for the same reasons as he previously discussed with regard to the location of public Works and uses. We now know that provision as the “mandatory referral” provision of the Tennessee zoning and planning statutes. Here’s what Bettman has to say about the two thirds majority requirement in that context:

This [model] form provides that when the report of the planning commission is adverse to a proposed location or use, a two-thirds vote of the Council or determining body is required to overrule the commission’s disapproval. The issue between a majority or a two thirds requirement is often stated to be whether the planning commission should be purely advisory or should have more than advisory powers. This is not an accurate way to state the issue. In the form here presented, the planning commission is not granted the power to decide finally on any question of location or extent of a public structure or use. That power resides in the legislative or administrative departments. The planning commission’s function is, in the last analysis, purely advisory; and this is not less true when a two thirds vote of the Council is necessary for decisions adverse to the advice of the commission. The two thirds requirement is simply a device for bringing about a more careful consideration of planning problems then these would be apt to receive it the ordinary majority control decision; and it could be stated that the experience of American cities has verified this, for the use of planning techniques in the recognition of planning principles have prevailed to a greater extent where this two thirds majority is required in the legislation and where is not. We are conceding of planning not as a matter of councilmanic way more fancy to be taken up or lay down as the clamor or fashion of the moment may favor, but as a basic step in the process of legislating about determining the allocation of the public and private uses of the land within the municipality.

One can certainly second-guess Bettman’s conclusion that a two-thirds majority would prevent in some way councilmanic whim or fancy from carrying the day. One only has to look at the Metro Nashville zoning changes, to understand that the two-thirds majority is no panacea. On the other hand it is clear that Bettman wanted somehow to push the ultimate decision maker to seriously consider the recommendations of the planning commission. The Tennessee general assembly did not believe that the two-thirds majority vote was lenient enough, but they did require a majority vote of the entire legislative body.

And, in a case such as the one here, where there is a negative recommendation by the planning commission, and the vote of a seven member legislative body is split 3 to 2 in favor, with two abstaining, the result must be, given Bettman’s point of view, that the zoning amendment does not pass. Not only was the court correct concerning the interpretation of the state statute, but there was a fundamental public policy which Bettman was attempting to acknowledge and enforce: careful consideration of any zoning amendment which the planning commission recommended against, and which also presumably meant that either the land use plan did not contemplate.

There is one final aspect of this case which seems at odds with the policy underlying state land use legislation. The proponent of the amendment argued that the plan was a “growth plan” within the meaning of Tenn. Code Ann. §6-58-107. First, although the court simply assumes that the General Plan of the municipality is the same as a growth plan, generally there are separate documents. In fact, usually, but growth plan is much less precise, and very vague and general. However, having assumed that the municipal General Plan was the growth plan, the court then turned to the language of the Smart Growth Statute, which mandates consistency with the growth plan, and concluded that there was no real inconsistency. That the fact that the area of the town which was the subject of the amendment did show in the plan that should be rezoned commercial did not specify the time frame within which that would happen.

Respectfully, it seems that if the plan itself does not indicate that the change should take place some time in the future, then that change is appropriate immediately.

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