Friday, August 3, 2012

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.

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