Friday, June 8, 2012

Public Comment via Text Messaging

Perusing the Internet the other day, I came upon an article from the city of Philadelphia dealing with the use of text messages to solicit public input on new planning projects within the city. This means that the citizens of Philadelphia don’t actually need to attend public meetings in order to have input into the decision-making process. Obviously, attendance at the meetings has to be more persuasive, but you can get there, perhaps a text message is almost as good.

The article allows the public to submit ideas and feedback to the planners about local initiatives. It seems that most of these are in the form of surveys, and a number corresponding to the response to the survey is texted and the responses tabulated.

I’m not sure how effective this would be in the context of a contested case being heard by the planning commission, but these types of responses might very well be useful when trying to develop policy initiatives and to get a better understanding of how certain spaces might be used in particular areas of the city. In particular, Philadelphia is using it to get feedback concerning the continuing development of its 2035 Comprehensive Plan.

Obviously, text messaging seems to lower the barriers to public participation. Think of the limited numbers of people who ordinarily are involved in charrettes; with the use of this technology, many more citizens could have a say in the overall vision for the future of the city.

In any event, I’m sure that we’ll be seeing other examples of the use of this technology as time moves along.

The original article may be found here.

Vested Rights and the Mosque

Another interesting twist on the Murfreesboro Mosque case is the potential applicability of the so-called vested rights/equitable estoppel doctrine here in Tennessee. I summarize this doctrine as requiring a building permit and substantial construction. Howe Realty Company v City of Nashville, 176 Tenn. 405, 141 S.W. 2d 904 (Tenn. 1940). Technically, a building permit may not be necessary but some substantial change of position by the applicant based on assurances from the city/County is certainly necessary.

Of course, under the circumstances presented in the Mosque case, there is no doubt that substantial construction is taking place. The real question is whether or not the building permit could be relied upon for purposes of the doctrine. The building permit was issued based upon the approval of the site plan by the County planning commission. And of course, the site plan has now been declared void ab initio as a result of the inadequacy of the public notice.

However, this doctrine of equitable estoppel or vested rights is based on fairness, not strict observance of the legal rules. Under the circumstances presented here, a strong argument could be made that the Mosque relied to its detriment on the issuance of that building permit, no one knowing that the court would invalidate the site plan eventually, and that since the plaintiffs never named the Mosque as a defendant, they weren’t really even when actual notice of any problem. This argument is made all the stronger when you consider that the site plan was approved by the planning commission and met all of the requirements for site plan approval in the County. Under those circumstances, to penalize the applicant seems extremely foolhardy.

Of course, as I have mentioned previously, there is also the potential applicability of the Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407. When you add together both of these legal doctrines, revocation of the building permit seems unwarranted.

Wednesday, June 6, 2012

Possible updates to the Memphis UDC

Memphis and Shelby County are considering amendments to the Unified Development Code which was passed about a year and a half ago. The amendments, submitted by Josh Whitehead, Planning Director for Memphis and Shelby County, are designed to make development within the jurisdiction a little easier.

"We all agree we need a code that does two things: Discourages suburban sprawl ... and at the same time promotes reinvestment in the existing part of the city," Whitehead said. "The way the UDC is written now, it sets the bar to the level that it really does, in my opinion, make reinvestment in this area very difficult. And if the code discourages developers from building inside the city, he said, "that does promote sprawl."

But there is significant opposition. A number of professionals, including planners, architects, attorneys and others, have lined up in opposition to the amendments suggested by Whitehead. One of the planners, Louise Mercuro, criticized one aspect of the amendments:
The planned development process has been obliterated retreating to the Gold rush days.  Virtually no public notice will be given on PDs [planned developments] and they will exist forever within City limits.  Developers will not have to show an actual plan for their development, only an outline of their property and a potential list of uses.  Once a PD is approved it can NEVER be changed by the legislative body only by the developer or property owner.  In other progressive cities the PD process is an exception allow innovative developments;  in Memphis it is the rule to get around traditional zoning and subdivision rules and regulations.  Cheaper, faster, no notice to citizens of any consequence and cursory review. 
Her comments are in a blog which you can find here.

Here is a website with links to the amendments themselves and also to letters of support and opposition.

The city Council has postponed third and final reading until July 17 to give the opponents additional time to review and comment. It will be interesting to see how the vote goes. Certainly, these types of adjustments are not unusual after the adoption of a new zoning or development code. Often, within the first year or two, practical experience with the code shows that there are changes that are needed to make it more effective and work as was originally anticipated. It is certainly not uncommon for amendments to be discussed, debated, considered by the local legislative body after that practical experience has been gained.

Monday, June 4, 2012

The Mosque in the News

Over the weekend, there was an article in the Tennessean about the Chancellor's ruling in the Murfreesboro Mosque case. Larry Crain, a Nashville attorney who specializes in religious issues, commented that the ruling could have a significant impact nationwide if allowed to stand. While I'm not as certain about that (it does certainly mean that parties before local county commissions need to check on when and where the required notices are published, and possibly augment those by buying additional ads), Larry is certainly correct when he says that if the County Planning Commission reverses itself at any future hearing, there are some serious constitutional concerns. “This raises some significant constitutional issues about whether or not technicalities like characteristics of a publication can override access of a religious group to building a facility.”

Restrictive Covenants: Demolition

In an interesting case from Arizona, Price v Kravitz, 2012 WL 1380269 (Ariz App April 19, 2012), property owners began construction on a two-story home the subdivision with restrictive covenants which limited the height of any home to one story. The neighbors cautioned the property owners concerning the restrictive covenants, and then sent a legal notice once it became clear that the new structure was going to have to stories. Ultimately, the neighbors file suit.the trial court found that the property owners had intentionally and knowingly violated the deed restriction and were ordered to remove the second story from the home.

The property owners appealed arguing that the restrictions were ambiguous and unenforceable but the Court of Appeals concluded that the plain language of the restriction, the proximity of the development to Camelback Mountain,and the fact that all the other homes in the vicinity were one-story, all indicated that the restriction was designed to protect the neighbors' enjoyment of the property. the order of the lower court requiring that the second story be removed was upheld.

Ordinarily I might not mention this case from a foreign jurisdiction, but given its similarities with the case that I tried six or seven years ago, I thought it was worthy of comparison. In my case, Trundle v Park, 210 S.W. 3d 575 (Tenn. App. 2006), my client, Ed Park, bought a lot in a similarly restricted subdivision and began construction. The neighbors give him notice of the potential violation and then ultimately sued. Ed had another attorney in the trial court, but ultimately lost, with the trial court requiring the demolition of the entire home. After that order was entered, Ed retained my old law firm to represent him on appeal.

I should note that in Ed's case, the restriction did not seem to make a lot of sense. The subdivision was in and around a small mountain/hillside in Chattanooga, Tennessee, but Ed's lot was essentially carved into the side of the mountain. That is, there was no one on either side or behind him whose view would be obstructed by a two-story home as opposed to a one-story home. I take it that the restriction permitting only one-story homes was to preserve the beautiful views from the mountain. But in fact, the second story on Ed's did not really obstruct anyone's view. To some extent, certainly, that's why Ed proceeded in the face of the restrictions.

After the trial court entered its demolition order, we immediately filed a motion to alter or amend the final order in the trial court, asking for permission to modify the newly constructed home so as to make it impossible to live in the second story. The plan was to alter the pitch of the roof, and remove any ductwork or air conditioning and heating which might have been available in that area home. The trial court in essence suspended the previously entered final order, granted the motion to alter or amend, and require that we file within three weeks the plans which I had generally described in the oral argument before the court.

We did file the plans but unfortunately the court did not rule on the validity of the plans for almost a year. When the case finally did come back up, the trial court thought that there was still an existing violation based on those plans, denied the motion to alter or amend, and reiterated its order that the property be demolished entirely.

At that point we file an appeal, and the Tennessee Court of Appeals reversed the decision of the trial court, finding an abuse of discretion in requiring demolition of the entire home, when clearly our submitted plans to modify the existing second-story into something like a glorified attic would bring the property into compliance. Ultimately, the modifications were made and as far as I know, Ed Park still lives in the home.

It is interesting to me that in both of these cases, the owners of the lots well knew of the existing restrictions and chose to go forward with construction in any event. In both cases, it turned out to be rather costly, although in my case, if the trial court's decision ordering demolition had been upheld, the economic impact would've been terrible.

When you review the case law regarding restrictive covenants, there is usually a good deal of language indicating that the restrictions are in derogation of the common law and the right of the property owner to use his property as he wishes, and are as a result looked upon skeptically by the courts. But in my experience, having tried several these cases over the years, usually the restrictions are upheld, and even if they don't seem to make a great deal of sense, the courts will support the restrictive language.

Murfreesboro Mosque – continued

Another interesting detail that crops up following the decision of the Mosque case and the possible rehearing of the matter by the Rutherford County Planning Commission, is the impact of the prior decision by the Planning Commission.

Since the Commission approved the submitted site plan when it was first presented, and because site plan review is generally done without a public hearing (there is a public meeting, but ordinarily the public has no right to speak concerning the application), it is unclear as to how a different result could be obtained.

Certainly, the opponents are counting on the strength of their political opposition, and most assuredly, the Planning Commission will likely allow members of the public to speak. But it’s a foregone conclusion that most of those comments will have little or nothing to do with the actual merits of the application and have more to do with an attack on the issue of the religious entity itself. Since Chancellor Corlew has already ruled that the applicant is a religion, that approach before the Planning Commission won’t be very effective legally, although who knows about the political ramifications.

Ultimately, it seems as though the Planning Commission will be presented with a site plan which it has already approved, and it would seem that approval upon reconsideration is likely as well.

If the site plan is not approved, the Mosque will have recourse to the Tennessee Religious Freedom Restoration  Act, and unless some startling new proof is presented to the Planning Commission, it would be difficult for a reviewing court not find in favor of the Mosque, given the parameters of the statute.

As I said in my last post, only time will tell…