Cert petitions: First applications

A recent Tennessee Court of Appeals decision involving the common law writ of certiorari highlighted a case decided by the Tennessee Supreme Court over a year ago, but one which I had missed. The recent case, handed down within just the last day or two by the Tennessee Court of Appeals, Phillips v Northwest Correctional Center, stands for the proposition that if a petition for writ of certiorari is properly verified, the fact that it does not state that it is the first application for a common law writ is not necessarily fatal to the cause of action. The Court of Appeals relies on a case, Talley v Tennessee Board of Professional Responsibility, 358 S.W. 3d 185 (Tenn. 2011), which so holds.

This is certainly a reasonable way to pursue these cases. The Supreme Court in Talley holds that because the proper verification is a requirement of the Tennessee Constitution, that is not waivable, and that the court loses subject matter jurisdiction if that requirement is not met. On the other hand, the requirement that the petitioner state that it is the first application for a writ of certiorari is merely statutory, and that its absence from the petition is not necessarily fatal. The court indicates that the petition can be amended, and that the amendment relates back to the time of the original filing of the petition.

While the requirement of the verification for an appeal from a land use planning board or commission is still a needless complication, hopefully, the Talley case will usher in a more sensible and relaxed approach to the common law writ of certiorari. If the statutory requirement that the petitioner must state that it is the first application for the writ of certiorari, perhaps the other statutory requirements are also waivable and not fatal as a jurisdictional matter. “Tis a consummation devoutly to be wished.”

Sign Regulations and the First Amendment

Unfortunately, everyone struggles with the applicability of the First Amendment to the federal Constitution in the context of sign regulations. One of the leading authorities in land use planning law in this country, Daniel Mandelker, has written a publication available online reviewing this area of the law and its impact specifically on business accessory and other on-site signs (as distinguished from billboards).

If you or your municipality are struggling with this area of legal doctrine, I highly recommend this publication. It is clearly written, and emphasizes the important points that need to be made in order to understand how best to avoid constitutional difficulties in the context of sign regulations.

The book is available here.

Zoning Seminar Today!

I'll be in a zoning seminar today. Come by and join us!

Lots of Record

Cheatham County v Cheatham County Board of Zoning Appeals, 2012 WL

This very unusual case involves two decisions by the Cheatham County Board of Zoning Appeals. The board originally heard an appeal regarding access to the subject property and granted it. Roughly a year later, after the property had been sold, the new owner obtained a building permit and bought a mobile home. The mobile home was placed on the property, electrical and utility connections were made, and just as he was about to request a final certificate of occupancy, the building official revoked the building permit. The building official ruled that the minimum lot size in that area of the county was 5 acres, and that the subject property being only 2 ½ acres, was too small for residential structures.

The owner, obviously surprised by this ruling, appealed to the zoning board and the zoning board once again indicated that this should be a legally cognizable lot and granted a variance for the property owner to use it. At that point, the county itself filed a lawsuit against its own zoning board, arguing that it improperly granted the variance.

The trial court affirmed the board’s decision granting a variance, but denied attorneys’ fees and the county appealed to the Tennessee Court of Appeals. About a week before the hearing before the Court of Appeals, the county found an old ordinance, adopted in 1991, but never codified, which specifically allowed the use of a lot if it had been created before the adoption of the zoning regulations, as this one had, even if it smaller than the minimum lot size.  As a result the county dismissed its appeal to the Court of Appeals, but the property owner requested permission to present his argument concerning attorneys fees.

The Court of Appeals, finding that the County had treated the property owner unfairly, concluded that there was a constitutional violation and awarded attorneys fees.

Perhaps the most interesting aspect of the Court of Appeals decision is the concurring opinion of Judge Cottrell, which emphasized that the county had no standing to appeal the decision of its own zoning board in the first place.

Perhaps equally importantly, this case is a reminder that non-complying lots of record (lots which were created before the adoption of zoning regulations) usually have special rules specifically attributable to them in almost all zoning regulations. Understanding how those rules operate and recognizing the importance of those rules is critical in handling these cases. Usually, most zoning regulations will simply allow a non-complying lot of record to be used for some purpose which is consistent with the zoning district in which it is located.

More on Corruption in Zoning

United States v. Plowman, No. 11-3781, 2012 WL 5846243 (7th Cir., Nov. 20, 2012)

Once again, I will briefly return to the subject of corruption in zoning. This time around, the case involves unethical pressure on members of the local board of zoning appeals. The case comes to us from Indianapolis, where a former law enforcement officer was elected to a position with the city council. Ultimately, he became the chairman of the council development committee, and as such had significant influence in who got appointed to the local zoning board. Over time he saw to it that his campaign manager was appointed.

The FBI stepped in and undertook a sting action, sending an agent to meet with the defendant, posing as the owner of a number of strip clubs with an interest in developing a new property in Indianapolis. The defendant assured the FBI agent that for a fee, he could get the zoning board to approve the location as well as the necessary permits and licenses regarding tobacco and alcohol.

What always astounds me about these cases is the small amount of money involved. The defendant was paid $8000 for his “influence” which he himself characterized as “control of the board of zoning appeals.”

The defendant attempted to defend on the grounds of entrapment, but both the trial court and the 7th Circuit Court of Appeals could find no legitimate grounds upon which to base an entrapment defense. The defendant was convicted and sentenced to 40 months in prison as well is two years of supervised release.

Seminar Next Week!

Next week, on December 11, 2012, Sam Edwards, Bryan Echols, and I will present a daylong seminar entitled, “Practical Guide to Zoning and Land Use Law.”

I'm sure there is still time to register. Here's the link.

McBride v Farragut BZA

McBride v. Farragut Board of Zoning Appeals, (Tenn App November 29, 2012)

The petitioning homeowner, lived in a residence constructed in 1971 with a raised concrete deck on the rear of her home. In 2011, she submitted an application to erect columns and a roof over the existing deck. The local zoning ordinance permitted patios and decks and other non-roofed and on enclosed appurtenances to be placed within 10 feet of the side and rear property lines. On the other hand, the principal building had to be 25 feet away, and the zoning administrator concluded that putting a roof over the existing deck which converted into a part of the principal building and as a result would require it to be 25 feet away from the property line. Since the deck was roughly 18'7" away from the rear property line, a variance was necessary.

The homeowner applied for a variance to the board of zoning appeals but was denied because there was no evidence that there was any exceptional physical feature the property justifying relaxation of the 25 foot side and rear yard requirement.

On appeal to the trial court, the zoning board decision was reversed. The trial court felt that the pre-existing deck, as a part of the original principal structure, was basically exempt from the 25 foot rear yard requirement. The colloquy between Court and counsel is reprinted in the decision, and the court carefully asks whether or not the deck will be enclosed. It was not proposed to be enclosed.

The trial court determined that McBride’s raised, concrete deck constructed on the same foundation as the principal building is part of the principal building – not a patio, deck, or similar appurtenance as identified in the ordinance.

As a result the Court of Appeals upheld the decision of the trial court.

The city argued that the trial court’s decision was a strained interpretation of the zoning regulations, and it seems to me that that argument is probably not far from the mark. The applicant here was an elderly woman who was suffering from skin cancer. That was the reason for the roof in the first place. Certainly, some sympathy for her personal plight may have ultimately affected the rationale of the court.

Another interesting facet of this decision is that if the property had been industrial or commercial instead of residential, it would have been protected by the Tennessee Non-Conforming Property Act, Tenn. Code Ann. §13-7-208. And under subsection (c), any nonconforming property may be expanded. So interestingly, a nonconforming commercial or industrial structure could be expanded, by adding new columns and a roof let's say, but this residential structure under the terms of the zoning board decision, could not be so expanded. Is the impact of adding a few columns and a roof to existing deck really that significant in terms of the impact on the surrounding property owners? Most likely, such addition in a commercial or industrial arena would be much more intense, yet it is protected statutorily.

Equal Protection, Class of One

Loessel v City of Frankenmuth, 692 F. 3d 452 (6th Cir. 2012)

This is an interesting case where a city with a historic town center attempted to keep Wal-Mart from opening a store in its downtown area. The owners of the property contracted with Wal-Mart to sell the property for the use as a store, for roughly $4 million. Upon hearing of the arrangement, the city adopted a zoning regulation which prohibited stores in excess of 65,000 square feet (the Wal-Mart store would’ve been roughly 105,000 square feet).

The property owners sued the city after Wal-Mart canceled the deal as a result of the new zoning regulation. The case was tried to a jury based solely on an equal protection theory (the trial court dismissed the other the other claims in the complaint) known as the “class of one.” Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam). The jury returned a verdict in favor of the owners in the amount of $3.6 million.

The city appealed contending that there was insufficient evidence for the plaintiffs to prevail on the class of one theory, in that there was little evidence that the plaintiffs were similarly situated to other differently treated property owners, the plaintiffs failed to demonstrate that there was no rational basis for the 65,000 square foot cap on size, and there was little evidence of personal animus or ill will against the owners.

The Sixth Circuit concluded that there was sufficient evidence concerning similarly situated property owners, and concerning the irrational basis of the cap, but that there was insufficient evidence concerning personal animus or ill will.

Because it was unclear as to what basis the jury actually relied upon in returning its verdict, the Sixth Circuit remanded for new jury trial. Because the jury could have relied upon the personal animus or ill will upon, and because there was insufficient evidence as to that prong, the case had to be remanded.

From a litigation standpoint however, it would certainly be scary for the city to take that case back into a federal courtroom. Having already had one jury returned a large verdict, trying the case again is probably not the best of ideas.

ICFG RLUIPA case settled for $2.3 million

In an interesting case from California, a city which had prevented the location of a church in an industrial zoning district agreed to pay $2.3 million in settlement of the case against it. The city did get significant concessions: the original industrial site cannot be used for religious purposes; the church may continue to search for an eligible site properly zoned, but cannot see the city for any denial outside the appropriate zoning districts. The city released a statement in September 2012 announcing the agreement.

The city, in the press release, maintained that it had a strong position to defend the litigation but given the unpredictability of litigation, and the potential for a large loss, settlement was the most prudent course of action.

Once again, it is extremely interesting to note that this result was obtained by the church under the terms of the federal act; it would certainly seem that a church in Tennessee given similar facts, would have an easier time under the Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407. Certainly the payment by the city, $2.3 million, is a significant settlement.

The 9th Circuit Court of Appeals had reversed a dismissal of the case by the trial court. 2011 WL 505028 (2/15/2011). The settlement was agreed to after the appellate court decision.

Recent Tennessee Cases: 2012

These cases were decided late last year, or during this year and are listed here for the benefit of my seminar participants. Click on the case name to view the court's decision:

Cheatham County v Cheatham Cty BZA

McBride v Farragut BZA,  2012 WL 5984887 

Loessel v City of Frankenmuth, 692 F. 3d 452 (6th Cir. 2012)

Wright v Shelbyville BZA, 2012 WL 5378267

Ready Mix v Jefferson County, 2012 WL 3757025

Carruth v City of Etowah, 2012 WL 3025863

Smith County RPC v Carver Trucking, 2012 WL 2859931

Depot Property LLC v Town of Arlington, 2012 WL 2849515
    previous decision here, 2011 WL 334472

Murfreesboro Mosque

Shore v Maple Lane Farms, 2012 WL 1245606

Gillham v Mount Pleasant, 2012 WL 1079333

SNPCO v Jefferson City, 363 SW 3d 467 (Tenn. 2012)

Abbington Center v Town of Collierville, 2012 WL 440701

Fielding v Metro Lynchburg, 2012 WL 327908

Brundage v Cumberland County, 357 SW 3d 360 (Tenn. 2011)

CK Development v Town of Nolensville, 2012 WL 38287

Prime Locations v Shelby County, 2011 WL 6140871 

411 Partnership v Knox County,  2011 WL 8106248

Legislative vs administrative actions

The Utah Supreme Court recently decided an interesting case concerning the distinction between legislative and administrative action. Applying the reasoning from an earlier case, Carter v Lehi City, 2012 UT 2, ¶ 32, 269 P.3d 141, the court concluded that a revised development agreement concerning a planned unit development was legislative and not administrative.

With that in mind, two guidelines that we set forth in Carter are particularly applicable to the matter before us. The first guideline is that “legislative power
gives rise to new law, while executive power implements a law already in existence.” To clarify this distinction, we recognized “two key hallmarks of legislative power.” One hallmark is that “[l]egislative power generally . . . involves the promulgation of laws of general applicability.” Another hallmark is that “[l]egislative power generally . . . is based on the weighing of broad, competing
policy considerations.”

Suarez v Grand County, 2012 UT 72


Of course, here in Tennessee the landmark decision is McCallen v City of Memphis, 786 SW 2d 633 (Tenn. 1990), which essentially concludes that if the challenged action merely follows policies already established that it is administrative in nature. Trying to distinguish between these two different forms of action is often difficult, but it is an important aspect of land use planning all. For example, assuming that the decision could be characterized as administrative, even a zoning change might be challenged in a manner that is more easily overturned. However, here in Tennessee, based on Fallin v Knox County, 656 SW 2d 338 (Tenn. 1983), virtually all zoning changes are regarded as legislative.

RLUIPA Jury Awards $1.1 million

In Academy of Our Lady of Peace v. City of San Diego, a jury has awarded over $1.1 million to a religious school which was unable to expand because the local council in the city of San Diego overturned approvals given by the city staff and the city planning commission. Whenever the local legislative body overturns decisions made by professional staff, you immediately begin to get concerned that politics has interfered in the process. Most of the time, that’s not any difficulty: politics in the city Council’s not unexpected certainly. But when you’re dealing with the federal statutory right, such interference inexorably leads to substantial jury will awards. And that’s just what happened here.

Historic treehouses

Sometimes, the zoning and planning issues involved in a particular controversy are buried by the personality conflicts in a neighborhood setting. Recently, construction was begun on a treehouse in the Richland West End Historic District here in Nashville. The owner of the property evidently discussed the necessity of a building permit with Metro Codes and was informed that no building permit was in fact unnecessary. He also checked with the staff at the Metro Historic Zoning Commission, and after review, the staff issued a permit for the treehouse as an accessory building.

Once construction on the project had begun, the neighbors were not pleased. Complaints were lodged with the MHZC staff, and ultimately an appeal was filed from the staff decision to the commission itself. The matter was taken up and considered by the commission on November 14, and while it was not clear that the commission in fact had jurisdiction, it supported the decision of the staff.

Part of the difficulty in this situation is that the lot sizes are fairly small and the homes are very nice, and of significant size. As a result, any additional construction, even in one’s own backyard, is not very far away from the backyard of your neighbors. This can frequently lead to conflicts, and it seems likely that that is what happened here.

The Commission’s response, having a hearing, allowing everyone to have their say, certainly seems a reasonable response. Unless these kinds of children’s playhouses are of gargantuan proportions, their temporary nature would seem to belie any need for them to comply with historic, or for that matter, even regular zoning requirements. At the same time, if I was constructing one, I would make sure to keep the playhouse out of the rear and side yards just so I didn’t run into any problem from a zoning standpoint.

Perhaps the historic zoning commission would be best off simply saying they have no jurisdiction or creating a policy that precludes review of this type of construction.

Murfreesboro Mosque Opens!

The Nashville Tennessean today reported that the Islamic Mosque in Murfreesboro, Tennessee, finally opened this past Saturday. It took a long while to get it done, but it is finally complete and open for services. Ultimately, it took a federal district court order to get it open, and the issue concerning the continuing viability of the use of the Murfreesboro Post as the newspaper of record for notices of County meetings is still suspect as a result of the local court ruling. The last I had heard, the County had appealed that decision and I guess we will get a resolution from the Tennessee Court of Appeals.

Third Edition of Tenn Zoning Board book!

I have just finished updating my book,  Tennessee Zoning Boards: Practice and Procedure, which should be available on Amazon soon. The book adds sections devoted to the Tennessee Religious Freedom Restoration Act, conditions on granted applications, non-conforming uses and others. The last chapter is particularly valuable covering the common law writ of certiorari in detail, as well as including a sample form petition, and a list of the critical components which must be included in the petition.

Take a look and pick up a copy if you do any work before a zoning board or ever file cert petitions.

The book is also available for purchase ($25) here.

Zoning Seminar Today!

I'm in a zoning seminar today. Come by and join us at the Millennium Maxwell House Hotel.

Seminar Next Week!

Next week, on November 13, 2012, I will present at a seminar, "Legal Issues involving Local Governments," here in Nashville. I will briefly discuss some of the basic issues relating to land use and zoning in Tennessee

I’m sure there is still time to register if you would like to attend.

For more information on the seminars, please visit the NBI website.

Wright v Shelbyville BZA (II)

Yesterday, the Tennessee Court of Appeals released its opinion in Wright v Shelbyville Board of Zoning Appeals, the second time this case has been before the appellate court. The saga continues.

In the first iteration, the city had adopted a new zoning district (I-3) and all proposed quarries were to be located in that district. Unfortunately, wouldn’t you just know that the Wright property was located in an I-2 zoning district. The Wrights challenged the adoption of the new I-3 district and prevailed in the first case. The Court of Appeals found that the new zoning had not been adopted properly.

After the decision of the Court of Appeals, the Wrights requested that their application be considered under the existing (I-2) zoning. The city denied this request, and the Wrights appealed that decision to the Board of Zoning appeals which affirmed the denial. The city’s position evidently was that the ruling in the original trial court was res judicata, because the Wrights had failed to demonstrate that there was a vested right to have the original application considered under the original zoning rather than the I-3 zoning. This decision was affirmed by the trial court in the second case, although the court added that to the extent that the doctrine of res judicata was not available, the decision of the board of zoning appeals prohibiting consideration of the original application would otherwise be arbitrary and capricious.

The Tennessee Court of Appeals was certainly not impressed with the res judicata argument. The court began by saying that the law of vested rights has no relevance to the appeal. If the original argument in the first case was that the application was submitted before the I-3 was adopted, it doesn’t make any difference because the I-3 zoning was declared void in any event. There’s no vested rights argument to be made at this point because the zoning which purportedly took effect in fact never did.

The court summarized the law of vested rights:

The concept of a vested right in a zoning, which has long been recognized in Tennessee, allows property owners, who have acquired the requisite ‘vested’ interest under an existing zone, to use and develop the property pursuant to said zone even if a subsequent zoning ordinance is enacted.” Westchester Co., LLC v. Metro. Gov’t of Nashville and Davidson County, 2005 WL 3487804, at *3 (Tenn. Ct. App. December 20, 2005). Rights under an existing ordinance do not vest until substantial construction or substantial liabilities are incurred relating directly to construction. State of Tennessee, ex rel. SCA Chemical Waste Services v. Konigsberg, 636 S.W.2d 430, 437 (Tenn. 1982). In summary, a landowner who asserts a vested right to develop under a prior zoning ordinance must demonstrate good faith reliance on final prior government approval coupled with substantial expenditures or liabilities incurred that relate directly to construction.

But the court emphasized that this doctrine is not applicable under the circumstances here. The challenged law was found to be void and therefore the doctrine of vested rights was simply not necessary to protect the interests of the plaintiffs.

The Wrights were entitled to have their application considered under the only zoning in place at the time of their application. There was no “prior” zoning, no subsequent (2004) amendment, and no need for the Wrights to assert the vested rights theory. The Wrights’ property remained zoned I-2, a category that allowed quarries as a conditional use.

As a result, the Court of Appeals reversed the conclusion of the trial court concerning that issue. However, with regard to the trial court’s alternative finding, that the board of zoning appeals did act arbitrarily and capriciously, the court upheld that decision. In this part of the case, evidently the city argued that the original application was not still pending. The court thought otherwise.

The application was originally submitted in 2004, but when the zoning change took place, the plaintiff simply asked that the application be removed from the agenda and specifically asked that the application remain pending. There was no time limit in the zoning ordinance within which such applications had to be heard. The city never notified the plaintiff that they had to proceed on the application. And the delay was occasioned by the appeal which was successful in striking down the original zoning change. The plaintiffs asked on numerous times to have the application considered on its merits but were denied.

Finally, the zoning board also argued that because the plaintiff updated their application in 2010 that this operated to invalidate the original application. The court concluded that updating the application after a significant delay was perfectly reasonable given the circumstances in this case.

The court addressed two final issues, the remedy and attorneys fees. With regard to the issue of attorneys fees, the Court of Appeals remanded the case for consideration by the trial court. Since below the plaintiffs had been unsuccessful, but that issue has now been reversed, the Court of Appeals indicated that attorneys fees would be appropriate.

With regard to the issue of remedy, the concern was whether to remand to the board of zoning appeals or simply have the court order that the permit be issued. Ultimately, the court felt that under the common law writ of certiorari the most appropriate remedy was to remand.

The court however did go into a discussion of the differences between conditional use permits and variances. To my knowledge, this is the first time I’ve seen this in a case here in Tennessee. I think the objective was to make sure that the zoning board understood that their discretion was not limitless, and to suggest that they needed to tread carefully in considering whether to deny this permit.

Here’s the courts language which I think is instructive generally on the issue of special exceptions and conditional use permits.

A special exception, unlike a variance, is not an exception to a zoning ordinance. Instead, it is a use that is expressly permitted. “Special exception” is clearly a misnomer. Since the use is specifically provided for in the ordinance as one to be permitted where the conditions legislatively prescribed are found, no exception to the ordinance is being made. The use permitted by approval of the board of adjustment, the legislative body, the planning board, or the “zoning administrator,” as the case may be, contingent on meeting the standards and conditions set forth in the ordinance, is more correctly termed a “conditional use.” This is, in fact, the term which is used in some statutes.
3 Rathkopf’s THE LAW OF ZONING AND PLANNING § 61:9 (4th ed.) (emphasis added). 

A conditional use or special exception allows a landowner to put his property to a use which the ordinance expressly permits. It requires only a finding that the conditions stated in the ordinance have been met. “The inclusion of the particular use in the ordinance as one that is permitted under certain conditions, is equivalent to a legislative finding that the prescribed use is one which is in harmony with the other uses permitted in the district. Id. Where the legislative body has authorized a use by special exception or conditional use, courts will presume that such use serves the public interest when located in the district where it is authorized. Classification of a use as one that is permitted as a special exception constitutes a legislative finding that the use accords with the general zoning plan, is in harmony with, or will not adversely affect, the surrounding neighborhood, and meets a public need. 

Tennessee law follows these generally applicable principles. In fact, state statutes recognize the difference between a variance and a use permitted under certain conditions. Tennessee Code Annotated § 13-7-207 sets out the powers of boards of zoning appeals. Subsection (3) authorizes such boards to grant a variance from strict application of zoning regulations where exceptional difficulties to, or undue hardship upon, the property owner would otherwise result. On the other hand, subsection (2) authorizes a board of zoning appeals to “[h]ear and decide, in accordance with the provisions of any such ordinance, requests for special exceptions.” (Citations omitted).

Although the facts in this case are somewhat obscure, the opinion by the Court of Appeals is very instructive. Not only does it give a thumbnail sketch of the doctrine of vested rights, but for the first time in the state of Tennessee, we have an appellate court discussing the distinctions between variances and conditional use permits. It’s a very useful opinion and will no doubt figure prominently as land use planning cases continue to be decided here in Tennessee.

Aesthetics and Cell Towers

In a recent case at New York, a request by T-Mobile for the placement of a new cell tower, denied by the local zoning board, was affirmed by the trial court under the terms of the federal Telecommunications Act. Interestingly, the denial was based in significant part on the aesthetics of the cell tower, and the court accepted that rationale and affirmed the decision of the zoning board. Take a look at the case, T-Mobile v Town of Islip, 2012 WL 4344172 (ED NY 2012).

Can a county sue its own zoning board?

I had prepared this post about a week ago, before the county dismissed its appeal as a result of finding an amendment to the zoning regs that makes clear that my clients were right all along. As a result, the most interesting aspects of this case are now not going to be argued. There remains an issue about attorneys' fees, which is certainly important, but is not the subject of this post. I thought I'd post my thoughts on the standing issue, because from time to time, this issue does come up.
       _______________________________________________________________


On Thursday, October 25, I have an argument before the Tennessee Court of Appeals involving two interesting issues: first, under what circumstances may a home be constructed on a noncomplying lot, and second whether the County can sue its own zoning board when it disagrees with its conclusion. Setting aside the first issue until some later date, the standing question is certainly fascinating.

In this case, Cheatham County contends that its zoning board granted a variance to my clients which the County believes was illegal. For our part, we don’t believe that the variance was necessary at all, that the board was simply applying the County zoning regulations and correctly at that. The County filed the appeal and the trial court indicated that the County did have standing to appeal a decision of its own zoning board. However, the trial court ruled that the zoning board acted properly and affirmed its decision.

Now the County has appealed to the Tennessee Court of Appeals, again arguing that the zoning board improperly granted a variance. My clients contend on appeal that the zoning board properly overturned the building code official’s decision to revoke the building permit, but that in any case that Cheatham County has no standing to prosecute this appeal.

The statute, Tenn. Code Ann. § 27-9-101, requires that a person be aggrieved in order to file such an appeal; the petitioner “must be able to show a special interest in the agency’s final decision or that it is subject to a special injury not common to the public generally.” Trosper v Cheatham County Planning Commission, 2010 WL 175094 (Tenn. App. 2010).

But assuming for the moment that the County does not own property in close vicinity to the property applying for the permit, should the County otherwise be permitted to appeal? In City of Brentwood v Metro Nashville Board of Zoning Appeals, 149 S.W. 3d 49 (Tenn. App. 2004), the Court of Appeals specifically approved an appeal by the city of Brentwood concerning a decision by the Metro Nashville Board of Zoning Appeals. But in that case, the appeal is somewhat understandable: these are two different governmental entities, which may have different policies and procedures. If the agency of one government improperly approved a development, it certainly does not seem unusual that the adjacent government might contest the issue.

But here we have a County government suing its own zoning board, a board which has no other legal existence other than as a part of the County itself. Furthermore, it would certainly seem that the County could solve whatever problem might be caused by the zoning board’s decision by simply amending it zoning regulations to preclude that from ever happening again. In my case, I believe that the true issue is permitting a mobile home in this area the County; by amending the zoning regulation to prohibit mobile homes on less than 5 acres, it would not happen again in the future. So there are certainly an alternative method of resolving this difficulty in the absence of an appeal to court.

Another interesting quirk under the circumstances is the fact that most counties do not bother to retain counsel for their zoning boards when they sue them. So for example, in my case, no one is arguing that the zoning board properly granted these variances. My clients are arguing that the zoning board granted relief appropriately but the variances were a necessary. The zoning board has no attorney. No one is arguing for its position.

On the other hand, the County did retain special counsel to challenge the decision of the zoning board. The County’s attorney is being paid by the County for his efforts to overturn the zoning board. It seems drastically unfair for the County to pay a lawyer to overturn the zoning board’s decision without at least making some effort to provide counsel to defend the zoning board’s position. In fact, it were not for the fact that my clients felt strongly about this issue, the case would likely have been overturned without opposition whatsoever because of my clients had not been willing to pay for my services, there would’ve been no opposition to the lawsuit.

From my perspective, the County suing its own board of zoning appeals is like the County suing itself. It’s the same entity. There is nothing for the County to sue about, there is no harm done to the County’s interests, and there should be no standing.

This case however will likely not turn on that broad general issue. In the papers filed with the trial court, the County neglected to make allegations concerning the basis for its standing in this case. It is far more likely that the Court of Appeals, even if it finds the argument regarding standing to be legally sound, that it will rule that the failure of the County to specifically allege the grounds for its standing in this case prevents it from concluding that the County did have standing. In other words, it will be a somewhat narrow ruling rather than the broader ruling I argue for above. Certainly, that’s fine for my clients' position. They win either way if the court rules in that fashion.

But this is nevertheless an interesting issue. Can the County appeal a decision of its own zoning board? Certainly, if he can, there should be some procedural safeguards built into make sure that the zoning board has some type of representation on appeal.

Bribes and Zoning

Unfortunately, bribery in the context of land use planning decisions is an all too frequent occurrence. The First Circuit Court of Appeals recently upheld a decision convicting an attorney who acted as a go-between in a zoning change for pay scheme. The council members got $25,0000 for their vote, around $ 5,000 each. One of the councilmen was an FBI informant. The technical issues on appeal aren't important for this blog entry. My point is the prevalence of bribery in the zoning context. It is a very unfortunate by-product of the zoning system. The case is US v Ciresi, 2012 WL 4757916 (1st Cir. 2012).

Variances

Professor Salkin has written a short intro to the law of variances which may be found here. It is an excellent overview but remember that our state statute is very restrictive and its terms must be met in order to legally obtain a variance. Professor Salkin speaks generally in the article but not only are use variances likely illegal here in Tennessee, but even getting an area (or bulk) variance is quite difficult here. The applicant must show some exceptional physical condition of his/her land which is different from his/her neighbors. Without some exceptional physical condition, any variance granted is likely illegal and could be overturned by a court of law.

TAPA Conference in Memphis

I'll be in Memphis tomorrow for the TAPA Conference. I'm on a panel and giving a short talk on What Planners Don't Know About Land Use Law. Here's the outline of my talk:

What Planners Don't Know About Land Use Law

1. Introduction

a. There's certainly not much planning law that the planning profession is not familiar with

b. We’ll discuss some issues where the answer is just aren’t clear so that no one knows what the law really is

2. Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407

a. Similar to the federal act that we all know, RLUIPA

b. But with several important differences:

i. Definition of substantial burden: infringes or curtails; very low threshold

ii. Burden of proof is clear and convincing, not preponderance

iii. “Essential to” [in furtherance of] a compelling governmental interest

c. Examples: homeless shelter, required dedications, athletic fields

3. Tennessee Non-Conforming Property Act, Tenn. Code Ann. § 13-7-208 (g) (4)

a. If the activity on the property is discontinued for 30 months or more, may it be resumed?

b. What is the meaning of subsection (g) (4): applies only if the owner intentionally and voluntarily abandons the nonconforming use and the government has the burden of proving an overt act of abandonment

c. Does (g) (4) strip all meaning from the 30 month discontinuation clause? How can these two sections be reconciled? Can they be reconciled?

d. I’ve only seen it addressed once in a trial court, and that court (a very fine judge) pretty much ignored the 30 month discontinuation clause.

4. Nolan and Dolan (and then BAM!!)

a. Nollan: Essential nexus

b. Dolan: Rough proportionality

c. BAM v Salt Lake County, 2008 UT 74, ¶ 8:

Of course, the Court did not mean rough proportionality at all. While 1 to 1 is a proportion, so is 1 to 1000, as any fifth grade student will be happy to tell you. Any two numbers, measured by the same units, form a proportion. So to be roughly proportional literally means to be roughly related, not necessarily roughly equivalent, which is the concept the Court seemed to be trying to describe. The proportion of 1 to 1.01 is roughly equivalent, while the proportion of 1 to 3 is not, for example. Unfortunately, by using the phrase "rough proportionality," the Court has engendered vast confusion about just what the municipalities and courts are expected to evaluate when extracting action or value from a land owner trying to improve real property. In this instance, rather than adopting the name chosen by the United States Supreme Court, we will use the more workable description of rough equivalence, on the assumption that it represents what the Dolan Court actually meant. 

d. Of course, it is still difficult to tell what rough equivalence is too. 

5. The Common Law Writ of Certiorari

a. This is the way most zoning cases are appealed to court

b. From the perspective of staff putting the papers together, there are several important considerations:

i. Ordinarily, the trial judge is limited to a consideration of the evidence that was heard by the planning commission/zoning board and included in the record; no additional evidence!

ii. Ordinarily, the trial judge may not substitute his/her judgment for that of the planning commission/zoning board, and then only reverse if the decision was arbitrary and capricious, beyond the board’s jurisdiction, or otherwise illegal

c. As a result, the staff should:

i. Make sure that all of the evidence necessary to support the decision of the planning commission/zoning board is in the written record which goes up to the trial court

ii. That includes ordinarily a copy of the subdivision/zoning regulations – just include a copy of the entire document in the record before the planning commission/zoning board

(1) If necessary, amend the rules of the commission/board and indicate in those rules that a copy of the regulations will always be included in any appeal

(2) Recently, in 411 Partnership v Knox County (2011), the Court of Appeals refused to consider certain arguments because the regulations were not in the record.

iii. Finally, writing the minute entry or order of the commission/board in the best way possible always assists a trial court in affirming the decision of the zoning board or planning commission.

(1) If the case is very controversial, have the city/County attorney prepare it or the attorney for the prevailing party before the board/commission
 d.Can a local government appeal a decision of its own zoning board?
6. Conclusion

Non-Conforming Uses: Digital Display Billboards

Next Monday morning there is scheduled another interesting argument concerning nonconforming uses  before the Davidson County Chancery Court, Part I. In this case, the Metro Board of Zoning Appeals considered and declared that a billboard located adjacent to the Corky’s barbecue near Brentwood was legally nonconforming notwithstanding the fact that it converted from a standard billboard sign to a digital display.

The Tennessee Non-Conforming Property Act, Tenn. Code Ann. § 13-7-208 (c) permits a structure or building to expand as needed for business purposes. This type of expansion, from a standard to a digital display, seems to fit nicely within the code provision.

Metro itself has appealed the decision in the case. One wonders first, how the Metropolitan Government can appeal a decision of its own zoning board, but we have discussed that issue in connection with my case involving the Mooneyhans previously here.

Second though is the substantive issue: Metro contends that the prohibition of digital displays is not a zoning regulation and as a result, the protections of the Tennessee Non-Conforming Property act do not apply. The difficulty with Metro’s argument is that the regulations concerning digital displays on billboards are in the zoning ordinance. It seems to me much harder to argue that it’s not a zoning regulation when the regulation itself is contained in the zoning ordinance.

Metro makes something of a novel argument, relying on cases where regulations which were not contained within the zoning regulation but which function as zoning regulations have been held to be zoning regulations and subject to the protections of the Tennessee Non-Conforming Property Act. One of those, is a case I tried several years ago, Metro v Buchanan, where the Tennessee Court of Appeals construed the Metro Property Maintenance Standards as applied to Mr. Buchanan’s property, as a zoning regulation and since Mr. Buchanan had been utilizing his property for more than 50 years, before the adoption of the Property Maintenance Standards, the Tennessee Non-Conforming Property Act protected against the regulation of his property by those standards.

But it’s one thing to apply that doctrine to non-zoning regulations which appear to work as restrictions on the use of property and appear to be zoning regulations in effect, and another entirely to take a regulation in the zoning ordinance and say that it’s just a general health, public safety and welfare regulation, not a zoning regulation. The argument appears to be that MetZo §17.32.050(h)(2) is not a zoning regulation. But the language of the regulation belies that assertion:

The following signs are expressly prohibited:
LED message boards and digital display signs in the AG, AR2a, R, RS, RM, RM-A, MUN, MUN-A, MUL, MUL-A, MUG, MUG-A, ON, OL, OG, OR20, OR20-A, OR40, OR40-A, CN, CL, SCC and SCN districts, except for time/temperature/date signs.

So, in the zoning districts referenced above, digital display signs are not permitted. But there are several remaining districts which are not covered by the prohibition, including all industrial, and several commercial, and also downtown districts. It is extremely difficult to argue that the above-referenced section of the zoning ordinance is not a zoning regulation since it expressly refers to some of the zoning districts established by the zoning ordinance, but not all of them. This is the epitome of what a zoning regulation is: you’re allowed to do digital displays in some districts and not others. That is exactly what zoning is all about.

As a result, the argument that the Corky’s billboard is not legally nonconforming seems to underestimate the policy and power behind the Tennessee Non-Conforming Property Act, which as I mentioned above, seems to apply directly to this type of case.

This should be an interesting decision. It will be an important decision, because it will have an impact on digital displays all over Davidson County, and perhaps, if the case is appealed, all over the state.

Intergovernmental Immunity

In a recent case from Missouri, the Missouri Court of Appeals concluded that a County choosing to construct a new government building within a small city was subject to the city’s building code requirements. Warren County v City of Warrenton, 2012 WL 4077370 (Mo. Ct. App. 2012). The ultimate result is based on a detailed reading of the enabling legislation in Missouri.

Such a detailed reading is probably not necessary here in Tennessee. Generally speaking, all local governments are exempt (or immune) from the building and zoning regulations of all other local governments. In fact so to is the state government, and also the federal government. There are differences for the final results, but the conclusion is clear: one local government cannot regulate the construction of a public building or other project, even within its jurisdiction, because the second local government is most often totally immune.

Probably the most significant case and certainly the most recent case is the Harpeth Valley Utilities District v Metro Nashville, 1998 Tenn. App. LEXIS 384 (Tenn App 1998). Judge Koch said there:

The Harpeth Valley Utility District has been operating since 1959 under the aegis of the Utilities Law of 1937, Tenn. Code Ann. §§ 7-82-101, -804,  providing water and sewerage disposal services to areas of Davidson, Williamson, and Cheatham Counties. As such, it is a governmental entity. See Tenn. Code Ann. § 7-82-301(a)(1) Unless specifically provided otherwise, a city's zoning power does not extend to state government instrumentalities located within its borders.

In the Harpeth Valley case, the utility district desired to expand its wastewater treatment plant located within the geographical jurisdiction of Metro Nashville. The city believed that the district had to comply with its zoning provisions and unfortunately for the district, the zoning precluded that particular use. As quoted above, the Tennessee Court of Appeals have little trouble finding in favor of the utility district.

The same is true with regard to building code regulations.

This is probably not the best way to resolve these difficulties. It seems to me that some type of a balancing test is warranted on those occasions where we have contests between different governmental entities regarding their right to use or construct a particular property within another government’s geographical jurisdiction. There are several different formulations which attempt to balance the equities under those circumstances I won’t get into a detailed review of those. But the law here in Tennessee remains as it has been for the last 50 years or so, that there is what amounts to an automatic exemption. At some point, the General Assembly needs to address this issue and allow some balancing depending on the particular circumstances of each case.

Recording studios as a home occupation

The Tennessean this morning had an article on that wonderful zoning concept known as home occupations. Zoning regulations for the most part regulate the principal uses of property, but there are many accepted “accessory” uses which are often associated with the principal use. For example, a single-family home in a zoning district which permits single-family residences is a principal use, but there may be many other accessory uses, such as a garage for parking the cars, tennis courts and swimming pools for recreational use and so forth. Note that these accessory uses, if they were the principal use would probably not be permitted: for example, if the swimming pool was on the property without a home, and admission was charged, it would be a commercial use and prohibited in the residential district. But if it is accessory to the use of a home by the occupants of the home, it is permitted in the residential zoning district.

A large category of these kinds of uses are known as home occupations. Many zoning regulations have restrictions on the types of home occupations which are permitted. Metro’s regulations prohibit more than one employee not living in the home, and no clients or patrons may be served on site. MetZo §17.16.250 (D). Unfortunately, this means that home recording studios, frequently desired by musicians, are likely illegal. Generally, while one or two of the musicians may live in the home, usually a number of others will have to come to the home to participate in the recording session. That is illegal under the current provisions of the code. Megan Barry, an at-large member of the Council, has proposed a new amendment which would specifically permit an accessory use to be called “home recording studio.” As many as 10 musicians would be permitted on a daily basis with off-street parking provided on-site. The recording studio would be subject to the noise restrictions already adopted.

Certainly, with the increasing numbers of people working at home, this type of flexibility is highly to be desired. Modern technology makes it much easier for many people to work from their homes, cutting down on traffic, helping the environment, and saving fuel. So long as there is a minimal disturbance on the surrounding neighbors, it would seem that these home occupations are generally a good thing.

The bill, pending in the Metro Council now, is 2012-292; it may be reviewed here.

We wrote about bee hives in residential neighborhoods a few weeks ago, and beekeeping might be viewed as a home occupation as well, accessory to the residential use. The question comes down to, as always, the impact on the neighborhood. If the home occupation disrupts of inconveniences the neighbors, it's not likely to be favorably viewed or permitted to stay.

The Bright Line Rule regarding Permits

Whenever I have a chance to lecture concerning the issuance of building permits, I always distinguish between the general rule across the United States known as vested rights, and a doctrine that I call the “bright line” rule which only a handful of states follow.

Generally speaking, the majority rule is that an applicant vests rights under a building permit only if the permit has actually been issued, and if substantial construction has taken place based on the issuance of the permit. Unfortunately, when you look at the majority of the cases which have been decided under this rule, the developer almost always loses. Certainly, there are a few cases where the courts have determined that substantial construction had taken place, but for the most part, the courts conclude that no substantial construction has been accomplished, and as a result, any change in zoning which took place after the permit was issued, may now legally prevent the construction.

Frankly, most developers have no idea that the law of vested rights is this conservative. Furthermore, I frankly think it makes little or no sense.

Contrast that with what I call the “bright line” rule. In those jurisdictions which follow this rule, if a building permit has been applied for, and the application is complete, then even if the permit had not been issued before a change in zoning, it can still be issued based on the law as it was at the time that the application was submitted.

Maybe I should call this the common sense rule, because it seems too common sensical for the courts or the legislatures to adopt it. Why shouldn’t the developer who has submitted an application which is essentially complete before a change in zoning, get the benefit of the law as it was at the time he submitted the application? There is no good reason for it. The applicant should be able to rely on the law as it existed at the time he submitted the application.

I saw an interesting case just in the last few weeks, Engley Diversified v. City of Port Orchard, 2012 WL 4023333 (USDC WD Wash. 2012), which exemplifies the bright line doctrine.

In that case, Engley applied for permits for billboards in March and April 2010 which were denied by the city. In June of 2010, the city passed new legislation which prohibited billboards within the city. The applicant which had already filed an appeal from the denial of the permits pressed forward with its fight and ultimately filed a lawsuit in state court challenging the city Council decision that the rights had not vested. That lawsuit was removed to federal district court by the city and the District Court concluded that the applications submitted in March and April 2010 had the effect of vesting the rights before the change in the law in June even though no actual permit had been issued.

It is interesting to me that the city removed this case to federal court. Here in Nashville, it would be somewhat unusual to see this kind of a case get removed. I did have a case within the last two or three years where the city removed only my allegations of a civil rights violation to federal court, but left the remainder of the case (a common law writ of certiorari) in the state court. I’m not sure you can do that either – it seems to me that you have to remove all or nothing. But surely, most cities and towns here in middle Tennessee would see federal court as not wanting to be involved in these types of zoning controversies. So, the removal by the city in this case is interesting, I wonder why they felt that they would get a better reception in federal court than they would in state court.

As it turned out, the reception federal court wasn’t very good. The city’s main defense seemed to be that because the applications were technically for sign permits, the applicant did not actually submit applications for building permits, and only building permits would have the effect of vesting rights under Washington law.

The federal court concluded that the request for sign permits instead of building permits was a distinction without a difference. The city failed to show that it treated the application any differently in any meaningful way, than it would have an application for a building permit. In addition to the permit applications, the applicant submitted sketches, site plans, engineered drawings from a professional engineer, and structural calculations for the proposed billboards. Furthermore, the city charged the applicant fees under the provisions of the building code for at least four of the permits and could not explain why such a fee would be charged if the applications were for “sign permits” as opposed to building permits. Finally, although the city argued that additional information was needed, the city failed to say what additional information was missing from the applications.

The federal court concluded that the applications were complete and that the city’s decision to the contrary was erroneous; as a result, Engley’s applications had vested under the terms of the controlling Washington statutes.

As I mentioned above, the fact that the city removed the case to federal court seems unusual to me; but the case is nevertheless an interesting application of the bright line rule applicable in Washington state. The other interesting factor here is the city’s fight to prevent the billboards from being constructed. It seems pretty clear when you read the case, that the city was trying to do anything to avoid having those billboards constructed after the adoption of its new ordinance prohibiting such billboards within the city limits.

Truly, this kind of a fight seems ill-advised and it is the kind of thing that makes owners, developers, and building permittees distrustful of all government regulation. Ultimately, it seems like the local government tries to use regulation to subvert legal construction activity, rather than to apply it in a fair and honest manner.

Tennessee APA 2012 Fall Conference

The Tennessee APA 2012 fall conference will be held in Memphis this year. I will be there for a panel discussion on the first day, Wednesday, October 17, and will also present a short topic,What Planners Don't No About Land Use Law. Setting aside the obvious answer, not much, I thought I'd take several issues which are problematic for all of us, for example mandatory dedications under the Supreme Court decisions in Nollan and Dolan; owner's intent under the Tennessee Non-Conforming Property Act; the Tennessee Religious Freedom Restoration Act; and finally a practical discussion concerning the common law writ of certiorari, which I'm sure not many planners have an understanding about. It is nevertheless, a good idea to have a basic concept of what that review process is all about, that is how the case gets in the court, and how the planning or code staff can maximize the possibility that the decision of the planning commission/zoning board will be upheld on appeal.

In any event, it should be an interesting conference. Unfortunately, I can't stay long, having to be back in Nashville on Thursday. But there are a number of interesting topics which I wish I could attend.

Bee Hives

The Tennessean also reported this morning (it’s a rare day when there are two zoning/codes issues in the morning newspaper) that there is a controversy in spring Hill concerning a beekeeper whose bees are prohibited by the restrictive covenants applicable to the subdivision in which he lives. There is a state statute which governs legislation prohibiting the maintenance or establishment of honeybees in hives. It is pretty interesting, and one that I had not really bumped into before.

It is found in the Tennessee Apiary Act of 1995, Tenn. Code Ann. § 44-15-101 et seq., and specifically at §124, which reads:

No county, municipality, consolidated government, or other political subdivision of this state shall adopt or continue in effect any ordinance or resolution prohibiting the establishment or maintenance of honeybees in hives, provided that such establishment or maintenance is in compliance with this chapter. This section shall not be construed to restrict or otherwise limit the zoning authority of County or municipal governments; provided, however, that a honeybee hive being maintained at a location in compliance with applicable zoning requirements on June 10, 2011, shall not be adversely affected and may be maintained at the same location notwithstanding any subsequent zoning changes.

The second sentence of the statute certainly limits the impact of the first sentence. Basically, a local government can’t adopt legislation prohibiting honeybee hives unless part of the zoning regulation. And probably, that is the most common type of regulation which would be adopted by a local government so the prohibition in the first sentence seems much less powerful when the entire provision is considered.

The issue in the case highlighted by the Tennessean article has to do with homeowners associations and restrictions adopted by those associations. Although there is a debate of some type in the paper about whether an HOA is some type of local government covered by the terms of the statute, clearly homeowners associations are not local governments. As a result, while the statutory provision which doesn’t offer much protection from local governments anyway, it offers none in the case of restrictive covenants adopted by HOAs.

Furthermore, isn’t that the way we would like our neighborhoods to operate? In effect restrictive covenants are rules adopted by all of the homeowners living in a given area prohibiting conduct which those homeowners find inappropriate in their neighborhood. The regulations aren't adopted by any government, they are adopted by the homeowners themselves, or by the developer who establishes the neighborhood in the first instance. They can be changed by action of the homeowners however at any time. Should local neighborhoods be able to make those kinds of decisions? It would certainly seem so.

One would think that the homeowner would check the restrictions and in this case, the property owner indicated that he knew of the restriction:

When I put the bees in, I knew it probably would be against the covenant, but I knew it was going to be a safe situation and if it wasn’t, I was going to remove them. I was bending the rules, but it’s not like I was raising vicious pit bulls in my backyard. I wasn’t doing anything I felt was unsafe. 

So, he did know and chose to go ahead anyway. The point is that if it disturbs others in the neighborhood, wouldn't it be better somewhere else?

In any event, this case seems to be headed for the courthouse and we’ll see what the local judge has to say about the statute and its applicability to local homeowner regulations sometime in the future.

Homeless Shelters at Green Street Church

The Tennessean reported this morning that the Green Street Church of Christ has been cited by the Metro Department of Codes Administration for a zoning violation by allowing homeless people to live in tents adjacent to the church. The church is in an industrial zoning district and surrounded by industrial uses, but the homeless "camp" does not comply with zoning. The comments from the Metro Legal Department (Tom Cross) sound as though the city would like to accommodate the church’s mission if possible.

This is another one of those areas where the Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407, would seem to apply. The attorney for the church, Tripp Hunt, mentioned the applicability of RLUIPA, the federal act, but as we have discussed here in the past, the Tennessee version is much more powerful. Again, the main reason is that under the federal act, you must demonstrate that there is a substantial burden on religious activities, and the federal courts interpret the phrase “substantial burden” as a fairly high burden which is somewhat difficult to overcome.

The Tennessee act however defines “substantial burden” as anything that “inhibits or curtails religiously motivated practice.” At least to me, that seems like a much easier burden to overcome. If part of the Green Street Church of Christ’s religious mission is to help accommodate and care for homeless people, then a zoning ordinance which prevents them from helping them on-site may very well inhibit or curtail the church’s religious practice.

Obviously, one of the difficulties here is that since most churches are located in residential areas, and since many residential neighborhoods would object to having homeless people moving alongside them, there is a conflict that will surely arise.

In any event, this Codes case certainly seems like an interesting case to watch. It will be even more interesting if the church employs the Tennessee Religious Freedom Restoration Act in its defense as well as the federal act.

Practical difficulties or unnecessary hardship?

Land use planning law has perhaps no other area of greater complexity than variances. And one of the interesting issues that comes up in the context of variances, is the actual standard by which the zoning board is supposed to judge whether a variance should be granted or not.

Many state statutes, including Tennessee’s, indicate that a variance should only be granted where there are “practical difficulties” or “unnecessary hardship.” But what do those two terms mean? Are they synonymous? Do they have some independent meaning each to their own? And what does it mean in the context of granting a variance?

Here in Tennessee we don’t have too many answers. Personally, I believe that it is easier to construe the two terms synonymously. But there are certainly a number of states who refuse to do that, or who will apply let’s say the “practical difficulty” standard in the context of bulk variances, and the “unnecessary hardship” standard in the context of use variances. The theory is that use variances should be more difficult to get, and that the “unnecessary hardship” standard requires a higher level of proof. Other states, such as New Jersey, construe the two standards as the same.

I don’t think use variances are legal in Tennessee, for the most part, and that makes the distinction between bulk variances and use variances pretty much academic, and there is therefore not much need for any distinction between the two standards, “practical difficulty” and “unnecessary hardship.”

The reason I bring this all up is the release of a new opinion from the state of New Hampshire discussing this very issue. The New Hampshire Supreme Court concluded that given recent legislative initiatives in their state, that the “unnecessary hardship” and “practical difficulty” terms refer to the unnecessary hardship test and are interchangeable. Merriam Farm, Inc. v. Town of Surry, 2012 WL 2913206 (NH 2012). 

I’m hopeful that if the issue ever arises here in Tennessee, that our Supreme Court will reach a similar result.

Non-Conforming Uses: Owner's Intent

I have an interesting argument coming up in Davidson County Chancery Court, Part I, this morning. The case, Richland Creek Watershed Alliance v Metro BZA, is an appeal from a decision of the Metro Board of Zoning Appeals, where they agreed that my clients property on Charlotte Avenue was legally nonconforming for a used car lot. The interesting aspect of the case is that it focuses on a provision of the Tennessee Non-Conforming Property Act, Tenn. Code Ann. § §13-7-208, which is rarely mentioned in any of the cases. This particular section, §(g) (4), provides that “the restrictions of this subsection… shall only apply if the property owner intentionally and voluntarily abandons the nonconforming use of the property. In any contested matter on the use of such property, the government has the burden of proving an overt act of abandonment in such matter.”

In our case, it was clear before the Board of Zoning Appeals that the owner never voluntarily or intentionally abandoned the nonconforming use. Furthermore, there was really no proof of any overt act of abandonment. On the other hand, nonconforming use cases rarely addressed this particular aspect of the statute, and so this case will be unusual in that way. It will be interesting to see what the Chancellor rules, and how she approaches the language of the statute. It seems relatively clear, but certainly reasonable people can differ about interpretations on what seems to be rather straightforward legislative language.

Failure to Exhaust

Last week, we discussed the new Ready Mix v Jefferson County case, 2012 WL 3757025, decided by the Tennessee Supreme Court. One of the most interesting aspects of the case to me is the issue of exhaustion of administrative remedies. When must an applicant appeal to the zoning board before going to Court? This question is a bit more difficult to answer than it should be. Back in 1992, the Tennessee Court of Appeals ruled in a somewhat similar case:

. . .  we find that the landowners have a right to obtain the board of zoning appeals' interpretation of their rights under the state laws and zoning ordinances pertaining to the erection and maintenance of a billboard on their property. We also find that review by the board of zoning appeals would be efficient and effective. Accordingly, we concur with the trial court's dismissal of the landowners' complaint because they have not exhausted their remedies before the board of zoning appeals.

Robison v. Metro. Gov't of Nashville & Davidson County, 90-3031-I, 1992 WL 205268 (Tenn. Ct. App. Aug. 26, 1992)

Ready Mix itself cites State ex rel Moore & Associates v West, 246 S.W. 3d 569, 577 (Tenn. App. 2005). In that case, the owner of a newly constructed hotel in Nashville filed suit concerning the interpretation of the zoning ordinance by Sonny West who concluded that a landscape buffer was required. The trial court ruled in favor of the owner, but on appeal, the Court of Appeals dismissed the lawsuit, holding that the owner first had to file an appeal to the zoning board, explaining that the "challenge was to the zoning administrator's denial of the certificate… [rather than] the validity of the ordinance requiring the buffer or the applicability of that ordinance to its hotel."

Notice however, that in the Moore case, the interpretation involved the zoning ordinance, not the applicability of a state statute.

In  Ready Mix, the Supreme Court ruled that the "primary issue for consideration was the applicability of the grandfather statute," and that no administrative appeal was required.

In this instance, the Company has, in our view, presented a challenge to the applicability of the zoning ordinance rather than to the discretion of the zoning official who issued the stop work order. The complaint required an assessment of whether the Company, by its actions prior to the passage of the zoning ordinance, invoked the protections of Tennessee Code Annotated section 13-7-208 and qualified as a direct challenge to “the applicability of th[e] ordinance” to the property. An administrative appeal to the board of zoning appeals “would have afforded no review over the key issue[].”

I certainly believe that the Supreme Court reached the right conclusion. I approach it from a similar standpoint but carry it to a further extreme.

In my opinion, the board of zoning appeals has no business construing a matter of state statutory law. Tenn. Code Ann. §13-7-109 (and as to municipalities, §207) grants the board of zoning appeals the power to "hear and decide appeals where it is alleged… that there is error in any order, requirement, decision or refusal made by the County building Commissioner or any other administrative official in the carrying out or enforcement of any ordinance enacted pursuant to this part."

The key words, from my perspective, are "enforcement of any ordinance enacted pursuant to this part." There was no error in the interpretation of the ordinance enacted pursuant to that section of the Tennessee Code. In these non-conforming property cases, the question is the interpretation of the state statute, §13-7-208. The zoning board only has the authority to interpret and conduct hearings concerning ordinances enacted pursuant to the enabling legislation. TCA §13-7-208 is not an ordinance; it is a state statute that has direct impact and should only be interpreted by members of the state judiciary. A zoning board, a planning commission, the local legislative body, all have no business interpreting the provisions contained within §13-7-208. Those provisions apply directly to the local governments; they are not adopted by local regulation or at least, need not be. It seems to me therefore that when the principal issue in the case is the applicability of §13-7-208, there is no jurisdiction before any administrative body, and the case must be litigated in the state courts.

Let's approach it from another angle just briefly. There are 95 counties in the state of Tennessee most of which now have zoning; there are many more municipalities. We could wind up with a different interpretation of the state statute in each of the countys and each of the municipalities if zoning boards are allowed to interpret these state provisions. It makes much more sense to have state judges  rule on the applicability and interpretation of state statutory requirements, rather than allowing a zoning board or planning commission or local legislative body, the majority of whose members have no training in the law anyway.

Certainly, if the applicant is relying on a local zoning regulation to demonstrate that the property is legally non-conforming, such as where the issues involve residential properties not protected by the state statute, the zoning board certainly has jurisdiction to hear and decide those cases. But where the owner relies on the protection of the state statute, there is no reason to go to the zoning board. The case should be considered by the state judiciary without the interference of local administrative decision-making.

As a result, the decision in Ready Mix certainly seems to be correct; I would even extend it further based on my analysis above. In any event, it is a very interesting case, and it strongly suggests that the Supreme Court believes that in cases involving non-conforming properties, that direct action in the state courts is generally appropriate when the primary issue for consideration is the applicability of the grandfather statute.

New Philly Zoning Getting Good Reviews (so far)

The new Philly zoning ordinance seems to be getting reasonably good reviews in the first week or two after its adoption. One news source up there reported that generally the developers and neighbors were supportive and that obtaining permits and demonstrating compliance was simpler and easier than under the prior version of the zoning regulations. We probably should wait and check back in a year or two, and then see what everybody is saying. Take a look at the report here.

Memphis UDC

A few days ago,Josh Whitehead posted on the Shelby County blog that the final version of the Memphis and Shelby County UDC had been approved by both the city and County legislative bodies in August and the final modified and paginated document was up on the website. It was a controversial process, but likely well worthwhile. You can find the final version of the UDC [Unified Development Code] here.

Vested Rights

In the case I mentioned yesterday, Ready Mix v Jefferson County,  2012 WL 3757025,  the court briefly discusses the vested rights doctrine in a way which I think simply and accurately describes the doctrine. Justice Wade drops a lengthy footnote (#18) discussing the doctrine indicating that "in general, the vested rights doctrine provides the zoning ordinance may not retroactively deprive a property owner's use of property. According to one authority, two conditions must be met in order to claim protection under the doctrine: (1) prior approval by the governmental authority; and (2) a substantial change in position by the property owner in reliance on the prior approval." The court cites the well-known McQuillin on Municipal Corporations as authority.

I have always found this formulation of the vested rights doctrine to be the easiest and simplest understand. When I speak about this topic, in fact I simplify it further: the developer must have (1) a building permit, and (2) substantial construction must've taken place. Of course, the governmental authorization does not necessarily have to be a building permit, but that is generally the type of approval given; and in addition although a substantial change in position is the actual legal formulation of the doctrine, generally speaking, it takes substantial construction on the property in order to best the rights. Simply expending monies in preparing the property, doing architectural or engineering work, or other kinds of activities, is usually insufficient.

The court recognizes that the vested rights doctrine does not technically apply in this case inasmuch as the County did not give prior approval to the quarry operation. but it is interesting that the court discusses the vested rights doctrine and uses it as an additional consideration in concluding that the newly adopted zoning regulations do not prevent the operation of the quarry.

It is worthwhile keeping in mind the simple formulation of the vested rights doctrine which the Tennessee Supreme Court now has approved: "In sum, reliance on the vested rights doctrine requires issuance of the building permit, plus substantial construction and/or expenditures." Citing CK Development LLC v Town of Nolensville, 2012 WL 38287 at *11. I don't think that there is anything particularly new about this, but it just serves to emphasize the simplicity of the vested rights doctrine and the importance of obtaining a building or other permit in order for the doctrine to apply.

The Diminishing Assets Doctrine

Last week the Tennessee Supreme Court handed down an interesting and important case relating to nonconforming properties here in Tennessee, and reversing a decision of the Tennessee Court of Appeals. The case is Ready Mix v Jefferson County, 2012 WL 3757025, and the issue presented was whether or not the quarry activities were sufficiently established on the property such that a new zoning resolution adopted by the County did not limit the continuation of the quarrying activities. The Court of Appeals had ruled that the quarry owners had failed to exhaust administrative remedies because they proceeded directly to court, rather than to the Board of Zoning Appeals. the Supreme Court found that the quarry owners did not need to appeal to the zoning board, because the real question was a legal one concerning the applicability of the zoning ordinance itself rather than to the discretion of the zoning official who issued a stop work order in this case.

After a discussion of nonconforming properties, and the requirement of "substantial" activity before the adoption of the zoning regulations in order to validate the existence of the nonconforming use, the court turned to an analysis of the diminishing assets doctrine.

The Supreme Court emphasized that whether a particular business is "in operation" depends to some extent upon the nature of the business itself. Since the mining and quarrying industry is comprised of the excavation and sale of the very natural resources that make up the property, those reserves may be considered pre-existing uses themselves in the event of a more restrictive zoning change. Applying the doctrine to the facts in the case, the court concluded that the company had engaged in a variety of activities on the property prior to the adoption of the zoning regulations. The company applied for permits from the state government, analyzed suitability as a quarry site, cleared overgrown brush and vegetation from the pre-existing bits which had been used previously, and moved substantial equipment on the property. In addition, at least two completed blast shots were performed on the property before the adoption of the zoning regulations.

The Supreme Court held that the evidence did not preponderate against the trial court's finding that the activities established a  pre-existing use and qualifed for protection under the Tennessee Non-Conforming Property Act. the court indicated that "substantial steps" in construction may often satisfy the Non-Conforming Property Act, and that a demonstrated "devotion of the property" to particular use can also result in a finding of a non-conforming use protected by the statute.

Over the next week or so, I will come back to discuss both the diminishing assets doctrine, and the failure to exhaust issues presented by this case. in addition, Justice Wade, writing for the Court, briefly discusses the vested rights doctrine which is worth considering as well. We will try to take a look at that also in the next few days.

It is certainly an interesting case, applying the "in operation" language of the Tennessee statute in a flexible way so as to protect the demonstrated assets of this quarrying company.

New Philly Zoning Ordinance: Fewer variances?

One of the objectives of the draftors of the new Philadelphia Zoning Ordinance was to decrease the number of variances granted by its zoning board. As the Philadelphia Inquirer said last Saturday,

Variances are supposed to be an exception to the rules, granted only rarely. Because the previous code was so outmoded, the Zoning Board of Adjustment had gotten in the habit of handing out variances almost at whim, even when a project deviated dramatically from the neighborhood context. The haphazard process invited abuse from powerful gatekeepers, most of them Council members. It often seemed you only needed to make a campaign contribution to obtain a variance in Philadelphia.

I hope to take a look at some of the variance provisions in the new zoning code up there, and contrast them with the ones we have here in Tennessee soon. It is certainly clear that the objectives are similar: variances in both cities should be granted sparingly, and the overall legislative view of city development should be allowed to control. It will certainly be hard to make any informed judgment from here in Nashville about the Philadelphia experience under the new zoning regulations, but I'm sure that will be able to contrast and compare new cases from the courts in each state concerning the experiences in each city.

Shore v Maple Lane Farms

Bill Herbert, the Metro Zoning Administrator, told me the other day that the Tennessee Supreme Court has granted permission for an appeal in the Shore v Maple Lane Farms case which we have discussed previously here. As you may recall, the Tennessee Court of Appeals took a fairly broad approach to agricultural zoning, and the Tennessee Right to Farm Act. The fact that the Tennessee Supreme Court has decided to review the case may indicate that the Supreme Court has a more conservative approach in mind.

In any event, it should be pretty interesting. Our Supreme Court is very knowledgeable concerning land use planning matters, and this is another area of zoning and land use which needs some attention. Perhaps the court can give us some guidance about how to apply agricultural zoning, including the limits of what it means to be agricultural.

New Zoning Regs in Philly

Effective today, the City of Brotherly Love will have a new set of zoning regulations. They are supposed to be easier to read and understand, more lenient with regard to construction and other improvements, and right up to date. Here's a link to a building industry website. Over the next several weeks, I may take some sections from the new Philly code, and compare and contrast that with our zoning regulations here in Nashville.

Here's a link to the city zoning commission web site with more details.

NYC: The Rainbow Room

The famous NYC landmark, the Rainbow Room closed in 2009, when the owners of Rockefeller Plaza evicted the restaurant operators. a part of the feud between the owners and operators was the application by the operators for a listing as a historic landmark under New York City historic regulations. While the operators are now long gone, the New York Historic Commission is now getting around to a public hearing on the application. It is scheduled for September 11 of this year, as the NY Times reports.

A part of the reason for the application in the first place would seem logically have been to put pressure on the building owners. Certainly, once the restaurant was landmarked, it would be harder for the owners to lease to any other person, and consequently, its value as rental property would also be diminished. Thus the owners of the building may not be enthusiastic in their support for the application.

It will be interesting to see what the landmarks commission actually does. the commission has previously given landmark status to a restaurant separately from the building itself in the case of the Seagram Building and the Four Seasons Restaurant. In that case as well, both the building and the restaurant were given landmark status. The building owner objected to a separate classification for the restaurant, but supported the landmark status as to the building. One must assume that similar economic factors were involved in the request for landmark status for the restaurant and the position of the owner. There's another NY Times article on the Four Seasons decision here.