Friday, December 16, 2011

When to file the appeal: MS and TN

In interesting case out of Mississippi, comparable to the cases here in Tennessee, the Mississippi Court of Appeals recently reiterated that the 10 day time limit for an appeal from a decision of a local land use board begins on the date of the hearing before the board, not the date on which the minutes are approved. Alias v. City of Oxford, 70 So. 3d 1114, 1116 (Miss. App. 2010), reh’g denied (May 24, 2011), cert. dismissed, 69 So. 3d 767 (Miss. 5/24/2011). The court cited its earlier decision in Rankin Group v. City of Richland, 8 So. 3d 259, 261 (Miss. Ct. App. 2009), which held similarly, based on the statute, Mississippi Code Annotated section 11-51-75 which provides:

Any person aggrieved by a judgment or decision of the board of supervisors, or municipal authorities of a city, town, or village, may appeal within ten (10) days from the date of adjournment at which session the board of supervisors or municipal authorities rendered such judgment or decision . . .

 The appellant argued that the judgment or decision was not final until the minutes of the local zoning board or planning commission are approved at a subsequent meeting. The Mississippi Court of Appeals was having none of it: both in the original Rankin case and in this case, the court concluded that the appeal had to be filed within 10 days of the date on which the judgment was rendered (to use Tennessee language) as opposed to when the judgment was actually entered by means of the minutes.

As we have discussed here several times, the well-known Tennessee case,  Advanced Sales v Wilson County, 1999 WL 336305 (Tenn. App. 1999) holds somewhat similarly. There is an important difference in that Judge Cantrell, writing for the Tennessee Court of Appeals, concluded that there was a writing signed by the secretary of the board, with a checkmark indicating that the case had been denied, and that the writing memorializing the decision of the board sufficiently so that the 60 day timeframe within Tennessee began to run on the date of the meeting. Absent such a document (really, a scrap of paper), under Tennessee law, the 60 days would not begin to run until the entry of the minutes.

However, as I have said on so many occasions, attorneys for parties wishing to appeal cannot rely on the customary procedure of adopting minutes at a later meeting. Given the conclusion in Advanced Sales, to be safe, any attorney filing an appeal from a local land use decision should file within 60 days of the date on which the decision was orally announced by the board. Otherwise, there is a risk that a scrap of paper similar to the one in Advanced Sales might have been signed and included in the record on the date of the hearing, meaning that any appeal must be filed within 60 days of that date. The risk is too great to ignore this possibility and so all appeal should be filed within 60 days.

Finally, I have written and anticipate that a new piece of legislation, the Tennessee Land Use Review Act, will be introduced before the Tennessee General Assembly at its next session. The Land Use Review Act, if passed, will replace the common law writ of certiorari as the mechanism by which to file an appeal from a local land use administrative board. Hopefully, it will make the process much less complicated and clarify issues such as this one. Section107 of the proposed act addresses this issue, retains the ruling in Advanced Sales capitalize advanced sales, and extends it so that a petition for land use review must be filed within 60 days of the date of the meeting at which the administrative land use decision was made… without regard to whether any writing memorializing the decision has been created, entered, or approved. Although quite frankly, I have always disagreed with the holding of Advanced Sales, it has been the wall of the state for at least 10 years and most land use planning attorneys are well familiar with the by now. Rather than change the rules again, it seemed to me in drafting the Land Use Review Act that all we really needed was uniformity in the application of the 60 day timeframe, so that it didn’t make any difference when the 60 day started, so much as it was clear as to when it does start.

As a result, the Land  Use Review Act attempts to make clear that, like the holdings by the Mississippi Court of Appeals, in Tennessee, the 60 day time for filing an appeal begins to run on the date of the meeting where the ruling is announced, and not from the date of the adoption of the minute entry.

By the way, my original reason for disagreeing with the holding of Advanced Sales, was that I have always believed that having a copy of the minutes which indicate clearly the reason for the decision by the local administrative body makes for a better decision as to whether to file an appeal in the first place. If the decision of the board is well thought out and recorded in its minutes, it may be that I conclude that there is no reason to file an appeal because I probably can’t reversed the board in any event, especially given the fact that the standard of review in such appeals is quite high (illegal, arbitrary and capricious, or beyond its jurisdiction). A scrap of paper, on the other hand, signed by the Secretary, with the word denied circled on it, fails to give that level of specificity, and leaves the attorney in doubt as to what the basis of the ruling might’ve been.

If the attorney was not at the hearing before the zoning board or planning commission, unless a transcript of the hearing is prepared, the attorney will have very little knowledge as the basis upon which the board made its decision. That was true back in 1999, but today, many of the zoning board some planning commissions record their meetings digitally and these recordings can be obtained by counsel for a very small fee. For example, Metro Nashville will provide a DVD of the zoning board meeting for a dollar. As a result, even if you don’t have the benefit of a minute entry or an order from the administrative tribunal, the attorney can frequently obtain a copy of the digital recording and see what actually happened at the zoning board. As a result, the lack of a minute entry these days is less difficult to overcome.

In any event, keep your eyes out for the Tennessee Land Use Review Act, which will hopefully be introduced before the Tennessee General Assembly in January. Once the bill is introduced, we will discuss its provisions in more detail.

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