Thursday, August 4, 2011

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.

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