Friday, October 28, 2011

Ready Mix v Jefferson County: S Ct accepts case for appeal

we have discussed this case previously, when the Tennessee Court of Appeals rendered its decision. See

My analysis at the time suggested that the decision of the Court of Appeals was consistent with previous appellate court decisions, but that those cases were decided incorrectly. I suggested that in cases where the land owner relied upon state statutory provisions such as Tenn Code Ann §13-7-208, it is inappropriate for a zoning board to be making a ruling on what is a matter of state statutory interpretation. Certainly, the local zoning board has the power and authority to interpret and construe the provisions of its own local zoning regulations. But that power and authority does not extend to state statutory law; it seems to me, that the judiciary should solely construe those provisions so that they remain reasonably uniform from Johnson City in the East to Memphis in the West.

I also indicated in that previous post, but I felt that it was unlikely that any court would so hold. I believed that the sheer weight of precedent would prevent the court from heading in another direction.

Well, the Tennessee Supreme Court has granted permission to appeal in this case, and maybe the Supreme Court is getting ready to head in another direction. It seems most logical that the court would grant permission to appeal only if there was some significant chance that it disagreed with the opinion below. This should be an interesting determination by the Supreme Court, and it continues the trend over the last several years which the current court has set, hearing more zoning and land use cases and providing answers for issues that up to now we have only been able to debate academically.

Thursday, October 27, 2011

Questions of Standing

In an interesting case for Massachusetts, the court dealt with the issue of standing to challenge the decision by the board of zoning appeals. In Massachusetts,

Certain “parties in interest,” as defined under G.L. c. 40A, § 11, are entitled to a presumption of standing as “persons aggrieved,” including (1) abutters, (2) property owners directly opposite the locus (i.e., directly across the street from), and (3) abutters to abutters within three hundred feet of the property line of the Locus. “[T]hose entitled to notice of the proceedings are presumed to have the requisite interest” under G.L. c. 40A and thus enjoy a rebuttable presumption that they are “persons aggrieved.”
The plaintiffs in this case indicated that they were "adjacent abutters." The court concluded that the presumption of standing was adequately rebutted by the applicant and the zoning board, and the burden of production and persuasion then shifted back to the neighbors to demonstrate that they were in some way aggrieved by the decision of the zoning board.

In this case, the plaintiffs hired a traffic engineer to demonstrate that the additional traffic would cause harm to their properties. However, the traffic engineer testified that the increased traffic would only be seven additional trips per day (10 trips per residential household, 17 trips for this elderly care facility). The court concluded that there was insufficient aggrievement for the plan is to have standing and dismissed the case.
Nihtila v. City of Brockton Zoning Bd. of Appeals, 2011 WL 3925596.

In Tennessee, I would suggest that the standing rules at least with regard to certain petitions are more liberal. For example, in Citizens for Collierville v Town of Collierville, 977 S.W. 2d 321 (Tenn App 1998), an allegation that the representative members of a local nonprofit Corporation lived within 2000 feet of the proposed development was accepted as sufficient for standing. in another interesting case, McCrae v Knox County, 2004 WL 1056669 (Tenn. App. 2004), the court accepted as sufficient allegations of "a diminution in the value of their property and loss of use and enjoyment due to the obstruction of their view of the Holston River and glaring lighting allegedly caused by the billboards." 

Because no proof is actually permitted under the terms of the common law writ of certiorari, to the extent that proof of standing is going to be admitted, it should be admitted before the local administrative tribunal. It is not been admitted there, then probably the issue of standing is been waived in any event.

From my perspective, it is far better for the courts to be somewhat relaxed on this issue so long as the neighborhood challengers live reasonably close to the proposed development. One of the reasons that standing should be liberally granted is because many zoning boards frequently blithely ignore the zoning regulations and the State enabling statutes in granting approvals for construction projects. In the McCrae case cited above, the board granted a variance which was clearly illegal. If the neighborhood challengers lacks standing, the clearly illegal decision of the zoning board would have stood. Liberal rules of standing allow neighbors to challenge governmental decisions which many times in the case of local zoning and planning commissions are suspect. If the courts restrict standing, many of these cases where the boards have granted developmental rights illegally will never be overturned.

Wednesday, October 26, 2011

Telephonic presence at the hearing?

I'm sure it's just a matter of time, but since I began practicing law, I can't remember a situation where a zoning board member attended the zoning hearing by telephone. In a recent case from Maryland,challengers to a nonconforming use argued that the failure of one of the board members to physically attend the meeting and his participation solely by speakerphone was in violation of the state Open Public Meetings Act.The Maryland court rejected the argument. The court found that there was nothing in the Open Public Meetings Act that rendered telephonic participation illegal, and that since the other members of the board, and the other attendees at the hearing could hear the board member through the speakerphone and a board member could hear them through the speakerphone, there was no apparent violation. Tuzeer v Yim, 2011 WL 4537172 (Md Ct Sp App 2011).

The Tennessee Open Public Meetings Act, TCA §8-44-101 et seq., appears to permit participation by telephonic communication. At least there is no prohibition of attendance by conference call.

TCA §8-44-108 does limit participation by electronic or other means, but that section applies only to state government and not to local land use boards and commissions. It would seem, that to the extent that reasonable precautions are taken, telephonic or physiographic participation by board members should be appropriate.

However, the staff of the zoning board or planning commission should be prepared to make certain adjustments so that the physically absent board member has all of the documents that are available to those members present at the hearing. Furthermore, to the extent that new documents are presented by the parties to the hearings, those documents should at the very least be described to the physically absent board member so that the importance and significance of the documents can be evaluated. Certainly it would be better for the absent board member to participate by video graphic means so that he or she could see the documents on camera.

Finally, it is very common in Tennessee for the staff to make short presentations concerning upcoming hearings by way of setting the stage for the ultimate decision. Those kinds of presentations or recommendations should certainly all be submitted to the absent board member so that he or she can review those even though not physically present at the hearing.

By following those simple guidelines, it would seem that electronic participation should present no obstacle to decisions by local zoning boards and planning commissions. Perhaps however it is just simpler to have a couple of alternate members who can substitute if one or more of the board members has to miss a meeting. Certainly it seems much easier in the long run.

I might add, that although there is little or no authority for alternate members in local land use boards and commissions, it seems very likely that any court called upon to determine the legality of such alternative members would conclude that there's nothing inappropriate about them.

Tuesday, October 25, 2011

Unusual physical features don't always equal a variance

In an interesting case from Philadelphia, the Philly Board of Zoning Appeals granted a number of variances of fairly large magnitude to an applicant who insisted that his hardship was created by the exceptional physical condition of the property. The difficulty was on appeal, that although in fact the property did have some exceptional features, they appear to be unrelated to the variance requested by the owner and given by the board.

The case is Singer v Philadelphia Board of Adjustment, 2011 WL 4501939 (Pa Cmmw. Ct 2011), and the developer sought to construct a 30 story mixed-use commercial building in downtown Philadelphia. Some of the deficiencies included a lack of on-site parking, zero lot line construction (25 foot side yard required), and an increase from the permitted 1200% FAR to a requested 1600%. The developer also asked for a use variance to allow the construction in the tower of a take-out restaurant.

At the hearing before the zoning board, the applicant presented testimony that the design and density of the proposed development were the result of the physical constraints of the property. Based on that testimony, after the hearing, the zoning board issued a decision granting variances as to each of the requested deficiencies as well as the use variance. The board found that the property was unique in that it was midblock between Walnut Street and Sansom, and that it had an irregular shape which wrapped around a pub located on the street level.

The decision was appealed to the trial court which affirmed the decision of the zoning board. However, on further appeal to the Philadelphia Commonwealth Court, the decision was reversed. The court initially noted that the burden on an applicant for a variance in Pennsylvania is heavy, and that the grounds for a variance must be serious, substantial, and compelling. The appellants made the argument that the property was not unique (or, to use the language of our Tennessee statute, exceptional) simply because it wrapped around the back of the street level pub or because it was located in the middle of the block. The appellants suggested that the property could easily be developed if the scope of the project was simply scaled-back. The Court agreed.

The Commonwealth Court began by noting that in the case of the dimensional variances being requested, the quantum of proof was slightly reduced from those involving use variances. Parenthetically, is useful to note that use variances are generally considered to be illegal here in Tennessee; the only type of variances that are properly presented to a zoning board here is a dimensional variance. Notwithstanding the fact that the dimensional variances had a somewhat reduced evidentiary requirement, the applicant still had to show a hardship created by the unique circumstances of the property, and the applicant’s desire to increase profitability on the property could not be substituted for that type of proof.

In fact, the court noted that the variances to exceed the permitted width, to reduce the length of the loading dock, to exceed the floor area ratio, and to eliminate all off street parking resulted in much more than a technical or superficial deviation from the terms of the ordinance. On the contrary, these types of significant requests are more properly addressed by asking for a zoning change rather than variances from the zoning board.

Finally with regard to the request for a use variance so as to allow the use of one of the mid-level areas as a take-out restaurant, required under Pennsylvania law that the developer demonstrate that the property could not be used for a permitted purpose. Since the property was at the time of the application already being used as a parking lot, there was ample proof that one of the permitted purposes was appropriate for the property.

One final interesting point about this case is that the Philadelphia Zoning Ordinance includes a list of requirements for variances which is very similar to the old Metro Nashville variance requirements. Those requirements were changed greatly when the new zoning ordinance was adopted for the city of Nashville 1998. I always wondered where the original list had come from (the planning staff in place when I first started work for Metro in the late 1970s told me that the ordinance had been put together out of provisions from many other cities in the country) but I had never realized the connection between the provisions for variances in Metro’s old zoning ordinance and those found in the zoning provisions in Philadelphia. It’s an interesting connection.