Wednesday, February 15, 2012

A legally existing use of land . . .

Abbington Center v Town of Collierville, Tennessee Court of Appeals, filed on February 13, 2012, is a good example of the requirement that a legally nonconforming use demonstrate that it was established legally before the effective date of the zoning ordinance. For example, if you don’t have the required permits from the city, such as for example, a business license and/or a zoning permit, and possibly others, as well as any state permits that might also be required, the use of the property may not have been legally established, and is therefore not protected by the Tennessee Non-Conforming Property Act, Tenn. Code Ann. § 13-7-208. In this case, the failure to have the municipal permits prevents the application of the protections of the act.

No one disputed that the two billboards at issue were constructed in 1979 before the town of Collierville prohibited additional billboards. The problem was that no one could find the municipal permits demonstrating that they were legal at the time of construction. In 1993, the current owner purchased the billboards and began looking into the question as to whether or not they could be destroyed and then reconstructed under Tenn. Code Ann. § 13-7-208 (d). Originally, the new owner received assurances from the town that the billboards were legally nonconforming. After approval by the design review commission, the signs were destroyed, and construction was begun on two new signs to replace the old ones.

However, the sign owner failed to get a permit and a stop work order was posted. When the owner applied for permits, they were denied, with the town now saying that the signs were not nonconforming under §208. The owner appealed to the board of zoning appeals, which held against the owner, and on appeal to Chancery Court, there was a remand with a second hearing before the board of zoning appeals with the same result.

Once again, the owner went to Chancery Court, and this time the court reversed the decision of the board of zoning appeals. The Tennessee Court of Appeals in this case reverses the decision of the Chancery Court, and reinstates the decision of the Board of Zoning Appeals.

The difficulty in this case for the owner of the billboards is the extremely narrow scope of judicial review under the common law writ of certiorari. Since the court cannot substitute its judgment for that of the zoning board, that means that if the zoning board weighs the evidence in a way that might not seem quite appropriate, the court is nevertheless restrained from reversing as long as there’s some reasonable grounds upon which the decision of the board may be upheld.

In this case, there was almost a total dearth of proof concerning the issuance of any municipal permits for the signs. This is perhaps to be expected, since the signs were constructed originally over 30 years before the decision. The only real evidence of any municipal permit having been issued, was given by the owner/general manager of the sign company who owned the signs at the time of the original construction. He testified that he was aware that municipal permits had been issued. Unfortunately, the difficulty with his testimony was that it was based on a contingency fee arrangement with the current owner of the billboards. The former owner would testify, and if the permits were issued, he would receive $5000 for his testimony. If the permits were not issued, he would receive nothing.

While evidently the current owner of the billboards corrected this and simply paid him the $5000 at a later date, this was not until after he is sworn testimony was taken. Most of the members of the board of zoning appeals found his testimony to be suspect as a result and since his testimony was the only testimony related to the issuance of an actual municipal permit, if his testimony is discarded, there was no basis upon which to conclude that the proper permits had been obtained prior to the original construction of the billboards.

As a result, the board of zoning appeals denied the appeal, and the Tennessee Court of Appeals was in a position where it could not reinstate the testimony of the former owner because that essentially would amount to weighing the evidence.

It may be a better option in these kinds of cases to allow the appeal on a de novo basis before the trial court. In essence, a nonconforming property is something like a species of property right, and it certainly seems as though a court of law should have the last say in those types of cases, unfettered by the restrictions found in the common law writ of certiorari.

Legislation would be necessary to work this kind of a change although there is certainly some common law authority for arguing that the statutory writ of certiorari would apply to these kinds of cases. Judge Ben Cantrell’s landmark law review article in the University of Memphis law review, back in the early 70's established that. But so far as I know, no Tennessee court has actually reviewed the issue as to whether or not a statutory writ of certiorari would apply. Several cases have certainly indicated that the appeal is pursuant to the common law writ of certiorari, but usually without consideration of the statutory writ.

Distinguish these kinds of cases where there is a property right from an application for a variance or even a conditional use permit. When you apply for a variance, you are basically asking for special relief because of some hardship found on the property. When you apply for a conditional use permit, you’re asking for a new use based on your compliance with certain restrictions. Both of those cases certainly get reviewed under the common law writ of certiorari. These types of cases however do not involve pre-existing uses of the property.

On the other hand, a nonconforming property is as I mentioned above, a species of property right. Arguably, the owner has a property right which may be taken away if the local administrative body makes the wrong decision. Under those circumstances, where there is arguably a pre-existing property right, a hearing de novo in court should be permitted/required, where the court makes a final decision about the weight of the evidence.

Bear in mind, that opening this up to a trial de novo in the court changes the arguments up in the court room itself as well. I’ve been practicing almost 35 years in this area of the law, and I’ve had this argument in the back of my mind for virtually all of those 35 years. But when push comes to shove, and a final decision has to be made about the kinds of allegations to make in an appeal to the court of law, I have always felt better with the common law writ of certiorari in my cases. Obviously, if the owner of the nonconforming property prevails before the board of zoning appeals, it is almost always better to allow the decision pursuant to the common law writ (obviously, if my client won below, he is a respondent and he does not file the petition; he just responds to the neighbor’s petiton). In that way, there is an astoundingly high chance that the trial court will uphold the decision of the board of zoning appeals.

On the other hand, if I have lost before the zoning board, and I think I have an opportunity to win in the trial court, I have been usually involved in cases where I thought that the other side might have a better argument in a trial de novo and that appealing pursuant to the common law writ actually would suit my clients purposes better. Usually there has been some technical legal argument that I could make that I felt would reverse the board and get my client’s position upheld.

By way of an example, within the last two or three years, the Ransom School case was decided. It is not a nonconforming property, but a historic zoning matter. However, under the statutes, the appeal can up under the statutory writ of certiorari, just as I am arguing a nonconforming property case may. Before the appeal was made from the local historic zoning commission, I spoke with Tom White who was handling the case, and the decision was made to appeal under the common law writ of certiorari. Tom ultimately felt that the statutory writ would allow the city to put on more proof and that ultimately the city’s proof might actually be better. So a strategic decision was made to go with the common law writ of certiorari.

My guess is that over the next five years or so, legislation changing this may be passed. But until that time arrives, keeping in mind that the statutory writ of certiorari may be available is certainly a valid idea.