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.