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.

Impact Fees

We've had relatively little litigation over impact fees here in Tennessee. But the Ohio Supreme Court recently took a look at impact fees in Hamilton Township, and concluded that the fees were in reality an unauthorized tax levied by the local government. Drees Co. v. Hamilton Twp., 132 Ohio St.3d 186, 2012-Ohio-2370. the Ohio Supreme Court relied upon a multifactorial analysis which I will not discuss in any detail here. However, a significant portion of that analysis had to do with the goals of the impact fee structure, and how the benefits would be distributed within the township. The Ohio Supreme Court indicated that, under Ohio law, in order to qualify as a fee, the increased assessment must benefit the targeted properties. But in this case, it was clear that the goal was to benefit all properties across the entire township, not just the ones who paid the fee. Under those circumstances, the Ohio Supreme Court concluded that the so-called impact fee was in reality attacks, unauthorized by the legislature, and as such, void.

While there are certainly statutory provisions for impact fees here in Tennessee, as far as I recall, there's not in any litigation concerning those fees. Well, at least, nothing that reached the appellate courts of our state. Frankly, it is usually easier just to impose tax rather than bother with the fairly complicated ramifications of an impact the ordinance. Nevertheless, the Ohio Supreme Court decision is interesting reading. There are a number of other cases across the nation cited in the Ohio decision, and there are plenty more than that which I usually talk about in my law school course. This is an intriguing area of the law.

Delay in granting permit

In a very recent decision by a District Court in New Jersey, the provisions of RLUIPA have been applied to a city which allegedly delayed the approval of a necessary variance for approximately 4 years. The city defended by saying that most of the delay was the fault of the church, but on this motion to dismiss, the court had to accept as true the allegations of the complaint, and based on those allegations, the court found there was clearly a substantial burden on religious exercise.

This case, Israelite Church of God v City of Hackensack, presented some other interesting issues such as whether individual defendants could be held liable under the terms of the federal statute. Given appropriate pleadings, the court held that they could be, broadly based along the same lines as the federal Civil Rights Act, 42 USC §1983.

It is a very interesting case, and one can only speculate that the Tennessee state statute could also be applied in the same way; that is, a delay in obtaining the permit for that period of time would be seen as a substantial burden on religious exercise.

You have to start somewhere!

I noticed this interesting case from New York several days ago, reported on Patty Salkins' Law of the Land blog. The case involves an argument by a quarry owner that the quarry was legally nonconforming, and as a result it could continue after a change in the zoning regulations. Unfortunately for the quarry owner, the New York Court concluded that the quarrying operation had never begun before the change in the zoning regulations. As a result there is no nonconforming use. Take a look at the case: Cobleskill Stone Products v Town of Skoharie, 2012 WL 1948307 (App. Dept. 2012).

I was involved in a similar case 10 or 15 years ago, Dickson County v Jennette, 2000 WL 1121550 (Tenn.Ct.App. 2000). Even given the statutory protection found here in Tennessee at TCA §13-7-208, the nonconforming use must have begun operations before the change in the zoning regulations. In the Janette case, just as in Cobleskill, quarrying operations had not begun before the change in zoning took place. You just can't have a nonconforming use, unless the use has actually begun operations before the change in the zoning regulations takes place.

Corruption in the zoning process

Yet another federal criminal case demonstrating the seemingly pervasive quality of corruption in the local zoning and codes enforcement process. In US v Keen, 676 F 3d 981 (11th Cir. 2012), the zoning enforcement officer was convicted of criminal misconduct in accepting money from an undercover FBI agent, and paying bribes to two commissioners for favorable votes on the development project. the convictions were upheld, but the interesting part is the actual presentation of the corruption in the process. Who knows how much of this actually goes on; it's a safe bet that law enforcement only picks up the absolute worst, the folks who really don't know how to cover their trail very well. It is certainly a sad story for local government.

Discriminatory Enforcement

In a recent federal district court case from California, the plaintiffs alleged that the city vigorously enforced zoning regulations against it, but ignored a competitor who was engaged in the same conduct. The court ruled basically that discriminatory enforcement was not actionable unless it was based on some unjustifiable standard, such as race, religion, or some other discriminatory basis. Andy’s BP v City of San Jose, 2012 WL 2340072 (N.D.Cal. June 2012).

This doctrine is often misunderstood but it is the majority rule across the United States. In Tennessee for example, in Irvin v City of Clarksville, 767 S.W. 2d 649 (Tenn. App. 1988), the court writing through Judge Koch held, "The conscious exercise of some selectivity in enforcement is not actionable in the absence of proof that the enforcement was deliberately based on an impermissible reason such as race, religion, or some other arbitrary standard." In that case, the plaintiff challenged the city's determination to demolish a fire-damaged home; the court concluded that the city had done nothing improperly, and the home was demolished pursuant to codes order.

Judge Koch has written several other opinions dealing with this same issue. I think it is very safe to say that Tennessee follows the majority rule. With Judge Koch on the Tennessee Supreme Court, we will probably get a Supreme Court precedent sometime possibly in the not-too-distant future.

From a policy perspective, this of course makes good sense. In a manner of speaking, all prosecutions are selective: the prosecutor makes a decision that there's been a violation of the law and initiates enforcement proceedings. Except under the most extreme circumstances, the prosecutor should be free to make decisions about enforcement of the law without being second guessed by the defendants. After all, the defendant in a discriminatory enforcement action are not arguing that they are not guilty; all they are saying is that someone else is also guilty. That is perhaps not the strongest argument for a finding of no violation.

Who may appeal to the zoning board?

Recently I have been working on a brief to the Tennessee Court of Appeals, and during my research, I noticed another one of those little interesting tidbits relating to the Tennessee Zoning Enabling Legislation, in this case, TCA §§13-7-108, and 13-7-206 (b). These two sections, which are almost identical, provide:

Appeals to the board of appeals may be taken by any person aggrieved, or by any officer, department or board of the county affected, by any grant or withholding of a building permit or by any other decision of a building commissioner or other administrative official, based in whole or in part upon the provisions of any ordinance under this part.

I have looked at these two statutes on many occasions over the years, but had never really thought about them too much. In the Court of Appeals brief that I am currently working on, the county has sued its own county board of zoning appeals. Certainly this strikes me as a very unusual circumstance, and frankly, absent some exceptional reasons, it doesn't seem to me that a local government should be able to sue its own zoning board. Rather, it seems to me that the zoning board is, in so far as the administration and enforcement of the zoning provisions are concerned, but final authority at the local governmental level. That's not to say that the local legislative body, which adopts the zoning ordinance itself, as well as any amendments thereto, does not also have an even more important role; it's just that in terms of administration enforcement, it seems to me that he zoning board should be the last nonjudicial record.

Anyway, while I was thinking about the impact of §108 above, I thought I'd take a look to see what language had been used by Alfred Bettman, in his proposal to the Tennessee General Assembly back in 1934. Indeed, it was quite different. The Bettman proposal was:

Appeals to the board of appeals may be taken by any person aggrieved by his inability to obtain a permit from the County building Commissioner or other administrative official or by any other decision of such Commissioner or official based in whole or in part upon the provisions of any ordinance enacted under this act.

As you can see, Bettman left entirely out the provision about officials of the local government being able to appeal decisions of the board of zoning appeals. Evidently, the Tennessee General Assembly disagreed with the Bettman proposal and added the additional language.

The interesting part of this is that generally local governments are entirely exempt from zoning regulations in the first place. That is, when a local government decides to build a structure of any kind, its own local zoning regulations don't apply. In fact, they also don't apply to other local governments, to the state government, or to the federal government. As a result, it's difficult to understand how the Tennessee modifications to the Bettman proposal ever come into play.

Finally, there are several local governments which have expressly waived their immunity to local zoning enforcement. Metro Nashville is one of those. In those cases, I assume that the government does apply for a building permit, and could appeal to the board of zoning appeals. However, it's difficult to understand any further action thereafter; that is, if the zoning board turned down the application, it seems to me highly unlikely that Metro Nashville would sue the Metro Board of Zoning Appeals in court to get whatever it had applied for. As a result again, the Tennessee modifications to the Bettman proposal seem unnecessary and unwarranted. It's not clear to me one it really applies and what it might apply to.

Finally, to the extent that the local government wants to reverse the decision of the local board of zoning appeals, all it has to do is amend the zoning ordinance to change the result. Of course, the amendment won't affect the particular application which was considered by the zoning board (if it was granted; if denied, and the local legislative body wants such applications granted, then of course the amendment would probably apply), but it would to all others, and arguably the board's action in one case would not have much of an impact in the overall zoning scheme.

For those reasons, it seems to me that there's certainly no reason in most instances to clothe the local government with the ability to second-guess an appeal the decisions of its own board of zoning appeals. A small part of my case will involve this issue of standing, that'll be interesting to see what the Tennessee Court of Appeals decides to do with it.

Links to the 1935 Tenn Zoning Enabling Acts

I have uploaded today copies of the 1935 Tennessee Public Acts relating to zoning in municipalities and counties. It's handy at times to have access to these documents and I thought it might be nice to have a copy on the net. You'll see a reference to those links on the lower right-hand side of the page. Over the next month or two, perhaps I'll have time to upload PDFs of the regional and city planning enabling legislation as well.

Now that I've gotten into this historical perspective, I thought about uploading a few pages that I have of a book that was published in 1949 chronicling the first 15 years of the Tennessee State Planning Commission, and as a result, also discussing the adoption of the Tennessee Zoning and Planning Enabling Legislation in 1935. However, I found a copy of the book is already been uploaded. You can read it here.

In particular, take a look at page 4 of the book:

The Tennessee Valley Authority's Division of Land Use Planning and Housing had retained Alfred Bettman of Cincinnati to make a complete investigation and report on the state Constitution and all legislative acts in Tennessee relating to planning to serve as a basis for preparing constructive legislative bills. subsequently, the Tennessee State Planning Board retained Mr. Bettman to prepare comprehensive state planning legislation and Gov. McAlister agreed to sponsor such legislation.

I found this passage for the first time back in 1980, shortly after I started practicing law. I had been driven to look for the author of the original Tennessee State enabling legislation because of the similarities between the state variance language and the language contained in the state enabling legislation in New Jersey. I wondered what could be the connection between Tennessee and New Jersey, in the land use planning arena. If both states had simply had the version of the variance requirements set out in the Standard State Zoning Enabling Act, my curiosity would not have been piqued. But because both states relied on the special language requiring "exceptional shallowness, narrowness, or shape," it seemed to me there had to be some connection.

Once I found this passage, it was a simple matter to check on Alfred Bettman, and discover that he had, in the latter part of his career, served as a consultant to New Jersey and was involved in their legislative efforts in the early 40s. No doubt his language for variances was adopted at that time. In fact, although the New Jersey Municipal Land Use Law change the arrangement of the language somewhat, even today it remains pretty much the same.

I've also spent some time in Cincinnati reviewing the Bettman archives at the University of Cincinnati. There is a folder with considerable effort directed at drafting the Tennessee legislation.

It is likely that I am the only person around who has any real interest in this, but I am certainly indebted to the author of this small book, Eleanor Keeble Guess, who authored this as her Masters thesis.

Before concluding this diversion into history, let me point out one other reference in the book. At page 12, Ms. Guess says:

The effectiveness of the County Zoning Act is partially lost by the inclusion of the so-called "Joker clause," which states:

This Act shall not be construed as authorizing the requirement of building permits nor providing for any regulation of the erection, construction, or reconstruction of any building or other structure on lands now devoted to agricultural uses or which may hereafter be used for agricultural purposes, except on agricultural lands adjacent or in proximity to state federal-aid highways, public airports or public parks; provided, that such building or structure is incidental to the agricultural enterprise. Nor shall this Act be construed as limiting or affecting in any way or controlling the agricultural uses of land.

The Joker Clause still lives; see TCA § 13-7-114. Take a look at our recent discussion of Shore v Maple Lane Farms, highlighting its continued applicability.

Historic South High in Knoxville

The saga continues regarding South High School in Knoxville. The current owner bought it from the city at auction, paid about $120,000 for the property in 2008, but is not maintaining it. Take a look at the News Sentinel article here. Evidently, the lot has become overgrown and the city feels that the owner is demolishing the building by neglect. The owner has until August 13, 2012 to appeal the unfit for habitation determination, or the city will board it up.

These types of cases are difficult. My feeling is that in terms of historic preservation, the city itself has the best chance of saving an older structure. Usually it has more money, it is exempt from zoning regulations, and  it doesn't have to market the property to private users. However, once the property is sold to a private owner, there is always a risk that money will run short, zoning regs certainly apply, and the private owner must market to the vagaries of market purchasers. This case will be interesting to follow.