Tattoos in Memphis

Periodically it is interesting to survey the state see what interesting zoning issues are cropping up here and there. Over the last several months, there’s been an interesting battle in Memphis concerning a tattoo shop. Evidently the owner leased the premises in the recently renovated Broad Avenue Arts District without making sure that zoning was appropriate for operating a tattoo parlor, and after the lease was signed, discovered that in fact the zoning did not permit that land use.

He appealed to the Board of Adjustment in Memphis for a variance, but as we have discussed on this blog several times, variances in Tennessee are very difficult to obtain, and his application was denied.

He is evidently now attempting to rezone the property so as to be able to operate the tattoo parlor. The zoning change is a much more political decision, so it will be interesting to see if he is successful in obtaining the change. It appears that many of his neighbors are opposed.

Here’s a local article about the controversy.

Chancellor finds Mosque notice insufficient

The long-awaited decision by Chancellor Robert Corlew was handed down yesterday, concluding that the notice provided by the County in the Murfreesboro Post was insufficient public notice pursuant to the Tennessee Open Public Meetings Act, TCA  § 8-44-101 et seq. Chancellor Corlew evidently relied upon the smaller circulation of the Post in the County, as opposed to its more brisk circulation within Murfreesboro itself, as well as the fact that there was no Internet notice, and no notice by public television.

The statute, §8-44-103 requires "adequate public notice" of public meetings. In the past, fairly simple notice, indicating the date, time, and place, as well as the name of the board or commission, has been deemed sufficient. The difficulty here, from the perspective of the court, evidently was the circulation of the newspaper itself.

The mosque is almost complete and because the mosque was not a party to the litigation, no injunction issued against further construction.

There is one further interesting aspect of this decision. The Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. §4-1-407, subsection (c)(1), provides that "no governmental entity shall substantially burden a person's free exercise of religion" unless essential to a compelling governmental interest. Of course, the state of Tennessee, through the Open Public Meeting Act, requires "adequate public notice" of all public meetings, but if the application of that statute "substantially burdens" the free exercise of religion under the circumstances of this case, shouldn't there be some demonstration that there is some compelling governmental interest?

I haven't considered the application of the Tennessee Religious Freedom Restoration Act from this standpoint, and of course, before the act applies at all, there must be a substantial burden on freedom of religion. But the act defines the term "substantial burden" as anything that inhibits or curtails religiously motivated practice, and under the circumstances presented here, it seems as though the Open Public Meetings Act itself may inhibit or curtail religiously motivated practice. Under normal circumstances, certainly, adequate public notice as required by the Open Public Meetings Statute would not be seen as a potential violation of the Religious Freedom Restoration Act, but as applied here, it seems as though it might have the potential to violate the provisions of the Religious Freedom Statute.

And if there is a substantial burden, then there must be some demonstration of a compelling governmental interest to justify the notice required by statute. I'm sure that an interesting argument can be made that adequate notice of public meetings is compelling, but I'm less than sure about that given the fact that Tennessee state and local governments existed for 150 years without requiring such notice. Furthermore, recall that this application was for site plan review, basically a glorified building permit. Public notice of the meeting to consider such an application seems unwarranted in the first place.

This is just another complexity that the Religious Freedom Restoration Act adds to the already complicated system of land use controls we have here in Tennessee.

Finally, the Mosque might be well advised not only to appeal the decision of the trial court, but also to immediately request a new hearing before the county planning commission, this time with better notice to the public. Frankly, it would seem very difficult for the county planning commission to deny the application, although to be sure, the hearing room will be packed with opponents. In this way, the Mosque might get relief more quickly than it otherwise could through an appeal to the Tennessee Court of Appeals.

We'll just have to wait and see; I'm sure the coming months will bring some new twists and turns in this already interesting litigation.

Lots of Record

Tennessee isn't the only state that struggles with variances . . .

I follow the Law of the Land blog written by Prof.Patricia Sulkin; she gathers many interesting cases from across the country and discusses their impact and results. She had a case recently from Massachusetts involving a variance in Boston which had been granted by the local zoning board, but which was overturned on appeal.

I won't bore you with the actual case, Shepherd v Zoning Board of Boston,2012 WL695557 (Mass. App. March, 2012), but Prof. Sulkin provided a link to a short article in a Boston bar Journal. Take a look at it here.

The upshot is that the attorneys in Boston aren't any more pleased with the restrictions on zoning variances up there then we are down here. Perhaps at some point, an effort to assist in cases like this where the variance requested doesn't seem to cause much harm, could be permitted. Any event, it's an interesting read.

Right to Farm Act

Last month, the Tennessee Court of Appeals issued an interesting decision concerning the Tennessee Right to Farm Act, Tenn. Code Ann. § 43-26-101 et seq. Essentially, a number of subdivision lots were aggregated by the “farm,” and used as a pumpkin patch, corn maze, and for concerts on the property.

Some 18 years after the “farm” began operations, the plaintiff bought one of the lots in the subdivision, not far away from the farm operations. The plaintiff’s lawsuit contended that the farm operations, if such they can be called, began to expand after she moved in, including additional concert performances, helicopter rides, and ATV use, disturbing her use of her property. She furthermore contends that about 75% of income of the farm is derived from these non-farming activities.

The farm discontinued the helicopter rides, but attempted to get a zoning interpretation that would support the concerts. Ultimately the County board of zoning appeals ruled that the farm could have only one concert per year.

The trial court ruled that under Tenn. Code Ann. § 13-7-114, there were sufficient agricultural activities on the land to merit exemption from the County zoning regulations. In particular, the trial court concluded that the definition of agriculture located at Tenn. Code Ann. §§ 1-3-105 and 43-1-113 include recreational and educational activities on land used in the commercial production of farm products and nursery stock. The Court of Appeals agreed. I assume that this means that the farm could have more than one concert on a yearly basis but that is a little unclear from the opinion.

Applying the protections of the Tennessee Right to Farm Act, the Court of Appeals first noted that the General Assembly likely never conceived that the protections of the statute might be called upon under circumstances such as these. But the court made the point that the General Assembly has defined farming to include agri-tourism, Tenn. Code Ann. § 43-39-101, and that could be interpreted fairly broadly given the statutory references. One of the experts in the trial court testified about a  state publication which defined agri-tourism as

a style of activity in which hospitality is offered on farms. This may include the opportunity to assist with farming tasks during visits. Participants can pick fruits and vegetables, visit mazes cut in crop fields or “Halloween” mazes, ride horses, taste honey, learn about crops, participate in hayrides (which may include picnics, campfires, bonfires, and entertainment, music, dancing), shop in gift shops and farm stands for local and regional produce or hand-crafted gifts, purchase food and beverages, purchase photographs, and much more.

The Court felt that this was consistent with the Act, and based on the Right to Farm Act, the plaintiff failed to rebut the presumption under the act that the farming operations were not a nuisance and as a result, the Court of Appeals affirmed the decision of the trial court, dismissing the complaint.

This is probably one of the first interpretations of the Tennessee Right to Farm Act, and it is a broad interpretation not only of the act itself, but also of the zoning provisions which have always exempted agricultural activities from zoning regulation.

This is perhaps appropriate, particularly in a state like Tennessee, where farming activities have a long and hallowed history. In addition, the state remains relatively rural and agricultural; perhaps the true holding of this case is that farms are nothing other than a different type of commercial activity, and before buying property anywhere close to farming activities, the purchasers should be extremely comfortable with living in that kind of environment.

I tell many of my own clients that I grew up on a nursery. In fact, my father and brother both now run the family nursery, and far from being an idyllic place of quiet and rest, it is to the contrary, a place of boisterous commercial activity. Tractors and trailers are moving in and out constantly, there are approximately 75 to 100 workers who show up on a daily basis to plant, care for, and dig up shrubs to ship to various locations across the eastern seaboard. In addition, mulch, fertilizer, peet moss, and all manner of other materials and accessories are trucked into the nursery in support of the agricultural activities.

This is certainly not a bad thing: my family has depended for decades upon the income from this agricultural endeavor. But as cityfolk move out to the country, frequently they don’t quite understand the nature of farming activities, and the inconveniences they can create as a result.

Shore v Maple Lane Farms, Tenn Court of Appeals, April 2012

The Fourth Amendment and Zoning Inspections

In an interesting new case from Connecticut, Town of Bozrah v. Chmurynski, 2012 WL 371893 (Conn. 02/14/2012), the state Supreme Court reviewed principles relating to zoning inspections under the fourth amendment to the federal Constitution. The trial court had, at the request of the city, issued an order permitting the inspection of the subject property, but the Supreme Court, while concluding that a lawsuit to gain permission to perform an inspection was appropriate procedurally, ruled that under the facts of this case, there was insufficient evidence to establish probable cause.

The court discussed the well-known US Supreme Court precedents, Camera v San Francisco, and See v City of Seattle. The court noted that in the Camera case, the request for the inspection was part of an overall citywide inspection process and not focused on any particular property. The Connecticut court distinguished that situation from the case before it, where the authorities sought permission only to inspect one property, because of the owner’s refusal to permit an inspection, even though the city officials felt that there was a reason to believe that there were zoning or codes violations present. Emphasizing that “the privacy interest . . .  is at its peak when a search of the home, or its curtilage, for zoning violations is contemplated,” the Court concluded:

When a zoning inspection is aimed at a particular property, we find that the government’s interest does not sufficiently outweigh the threat to individual privacy to warrant suspension of the fourth amendment requirement of particularized suspicion.

The Court reversed the decision below because the trial court did not make a determination concerning whether probable cause existed to believe that there was a zoning violation on the property. In fact, the state Supreme Court cast doubt on whether under the facts, such a conclusion could be reached in any event.

This case is interesting and it is certainly worthy of comparison with the 6th Circuit decision in Jacob v West Bloomfield, 531 F.3d 385 (6th Cir.2008). In that case, even though the trial court had ordered the inspection, the property owner (already convicted of the codes violation) refused to give consent and sued when the inspection was made over his objection. The Sixth Circuit concluded that indeed there was a violation of the fourth amendment and that the Township was liable.

The best advice that any inspector can get is to make absolutely certain that he or she has the consent of the property owner before entering any property to do an inspection, or that an administrative search warrant has been issued. Certainly, if there are other exceptions to the Fourth Amendment’s requirement of a search warrant which might apply, such as the open fields doctrine, or heavily regulated industry exception, entry without a warrant or consent is also appropriate. But the further the inspector strays from having consent or a warrant, the closer to potential legal liability he or she comes.

Church faced substantial burden

In an interesting case from the Northern District of Illinois, a federal district court has ruled that there was sufficient proof of a substantial burden under the federal RLUIPA to send a church’s claim of religious discrimination to a jury.

In Liberty Temple Church v Town of Bolingbrook, 2012 WL 1230728 (N.D. Ill. 4/12/2012), the facts do seem somewhat egregious. First, when the church inquired about the possibility of renting not just at one location but at a second location as well, the owner of the property was skeptical that the local mayor would permit a church not only at that location, but anywhere in the town. Allegedly, the mayor made similar statements directly to members of the church itself.

In addition, at least at the second location, the church had already consulted be published documents constituting the town’s zoning regulations, and had determined that they were in an area zoned for religious land uses. However, when they apply for a permit, the town turn down the application based on its claimed that the maps were in effect erroneous.

The court relying on several Seventh Circuit decisions concluded:

Based on the Village's own published map and zoning ordinance, a jury could reasonably find that the church reasonably believed a SUP was not legally needed. Moreover, based upon Mayor Claar's representation on February 28, 2011 to Plaintiff's attorney, a jury could construe it as a definitive pre-emptive denial of any SUP Plaintiff might have filed. Therefore, Plaintiff was not obligated to go bang its head against a wall and apply for a permit it was told it would never get. In respect to the SUP, this case is almost a fact-for-fact parallel of the World Outreach case.

The town’s motion for summary judgment was denied, and the case is going to a jury.

Remember, that under the Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. §4-1-407, the standard for proving a substantial burden is significantly less than it is under the federal act. As a result, certainly the comments of the mayor alone would have doomed the town's case here in Tennessee.