The Supreme Court of Nebraska decided an interesting variance case last May. The issue that makes the case interesting is the standing of the applicant for the variance. A group called Volunteers of America (VOA) applied for variances to build apartments for veterans in Omaha. The neighbors, Field Club Home Owners League, opposed application but the variances were granted. Field Club Home Owners League v. Zoning Board of Appeals of Omaha, 283 Neb. 847, 814 N.W.2d 102 (NEB 5/11/2012)
On appeal, the District Court affirmed the decision of the zoning board, and only after the decision was the issue of standing raised by the neighbors. The Field Club Home Owners League now argues that because VOA had no legally cognizable interest in the property, it lacked standing to file the appeal with the zoning board.
A party invoking a court's or tribunal's jurisdiction bears the burden of establishing the elements of standing. Here, it is true that the record fails to show that VOA has standing to seek the variances.
The Nebraska Supreme Court ultimately remanded the case for an evidentiary hearing concerning the standing of VOA. But it did discuss the standing issues.
A property owner obviously has standing to seek a variance from a zoning ordinance that, if strictly enforced, would adversely affect the owner's property rights or interests. And the majority of courts that have considered the issue also hold that a prospective purchaser under a purchase agreement subject to the grant of a variance or rezoning of the property has standing to seek the change. Similarly, courts have held that the holder of an option to purchase property has standing to apply for a variance when the holder is bound to purchase the property if the variance is obtained or when the property owner anticipated that the option holder would seek the variance to complete the sale.The remand was ordered so as to give the applicant an opportunity to demonstrate that it did have some connection to the property.
The substantive rules articulated by the Nebraska Supreme Court certainly also apply here in Tennessee. Let’s think through some of the possibilities relating to the standing of an applicant for relief before a local Board of Zoning Appeals.
First, obviously the property owner, him, her, or itself may file the appeal.
Second, a contract vendee under a real estate purchase contract would have standing to file the appeal.
Third, the holder of an option to purchase property would have standing to file the appeal.
Forth, clearly the lessee of the property could file an appeal.
Fifth, the agent of any of the above parties could also file the appeal on behalf of of the owner, contract vendee, lessee or optionee. This fifth category of potential applicants probably needs to be a little more careful about demonstrating his/her agency.
Certainly in the case of an attorney, representing a client, the owner, contract vendee, optionee, or lessee, there is little difficulty. The attorney’s signature is a representation that he is signing on behalf of the appropriate party and should be sufficient.
But let’s suppose that some other agent signs the application to the board of zoning appeals. It could be the real estate agent, a contractor, an engineer, or some other third party. Is the simple signature of the agent sufficient?
That question gets a bit more difficult. In the absence of some verification from the owner, contract vendee, optionee, or lessee, there might be some question as to whether the agent is really acting at the behest of an appropriate party. Now, it seems to me, that not many people are going to apply to a board of zoning appeals for some kind of relief on behalf of another party unless they actually had been engaged to do so. My experience in these matters for over 30 years, bears that out.
However, it is certainly an opportunity for the opponents of the relief requested to raise what can be something of a difficult issue, especially here in Tennessee, where no additional proof is usually admitted before the trial court. Therefore, in the absence of some other rule, the failure of the applicant to demonstrate standing before the zoning board could be fatal.
Fortunately, Tennessee does follow a slightly different role. The party (in our case, the neighbors) contesting the standing of the applicant to file the appeal, must raise that issue before the board of zoning appeals or other administrative agency. If the applicant waits until the trial court, the issue is waived. City of Brentwood v Metro Board of Zoning Appeals, 149 S.W. 3d 49, 60 (Tenn. App. 2004). By the way, given this rule, it is not a bad idea for the representatives of either party (developer or neighbor) to raise the standing issue at the zoning board hearing. Sometimes, the other side may not be able to demonstrate standing and the case might be dismissed, or the opponent may simply fail to reply to the issue, raising the possibility of losing the issue on any subsequent appeal.
The Tennessee rule is a reasonably fair way to approach this difficulty. If the issue is raised in front of the board of zoning appeals, presumably the applicant will have the ability to demonstrate that he or she is the agent for the owner or other qualified person. If the agent cannot do so, then the board can simply deny the application for lack of standing.
If however, the opponents could wait until after the hearing before the board of zoning appeals, and raise the issue of standing in the trial court for the first time, where as I say, ordinarily no additional proof is permitted, then it would be impossible for the applicant to demonstrate to the court vendee there was standing.
It’s been about 15 years back now, but in a case here in Nashville, Jacksonian Foundation v Metro Board of Zoning Appeals, that very issue was brought up. A real estate agent had signed the application for the variances necessary with the board of zoning appeals on behalf of the ultimate lessee, Walgreens. Through that relationship, the agent was also acting on behalf of the owners of the property.
The issue regarding standing was not brought up at the hearing before the Board of Zoning Appeals. It was not until the case reached the trial court, that this issue became important. Ultimately, the court concluded that the agent clearly had appropriate authority, because several letters in support of the variances had been written by the owners, at least one of the owners was in the audience at the time of the hearing before the board of zoning appeals, in support of the application. As a result, the trial court affirmed the decision of the board of zoning appeals. No appeal was taken from this decision.
By the way, this is also interesting case to me in that it is one of the few variance cases over the years that I have seen where there is definitely an exceptional physical feature of the property justifying the variance granted by the board of zoning appeals. Far more often, there is a distinct lack of any exceptional physical feature of the land. Here, the narrowness of the lot distinguished it from all the surrounding properties and made construction of a commercial retail establishment most difficult without the benefit of the variances as applied for.
As a final thought, given agent, other than attorney, is representing the owner, contract vendee, optionee, or lessee of a piece of property, is not a bad idea to have a letter written from the party was standing expressly granting the agent the power to file the application and proceed with the appeal. Such a letter should easily satisfy this issue of standing so that the applicant need not worry about it further. Some zoning boards have requirements that such letters or affidavits be submitted at the time of the filing of the application.