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.