Aesthetics and Cell Towers

In a recent case at New York, a request by T-Mobile for the placement of a new cell tower, denied by the local zoning board, was affirmed by the trial court under the terms of the federal Telecommunications Act. Interestingly, the denial was based in significant part on the aesthetics of the cell tower, and the court accepted that rationale and affirmed the decision of the zoning board. Take a look at the case, T-Mobile v Town of Islip, 2012 WL 4344172 (ED NY 2012).

Can a county sue its own zoning board?

I had prepared this post about a week ago, before the county dismissed its appeal as a result of finding an amendment to the zoning regs that makes clear that my clients were right all along. As a result, the most interesting aspects of this case are now not going to be argued. There remains an issue about attorneys' fees, which is certainly important, but is not the subject of this post. I thought I'd post my thoughts on the standing issue, because from time to time, this issue does come up.
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On Thursday, October 25, I have an argument before the Tennessee Court of Appeals involving two interesting issues: first, under what circumstances may a home be constructed on a noncomplying lot, and second whether the County can sue its own zoning board when it disagrees with its conclusion. Setting aside the first issue until some later date, the standing question is certainly fascinating.

In this case, Cheatham County contends that its zoning board granted a variance to my clients which the County believes was illegal. For our part, we don’t believe that the variance was necessary at all, that the board was simply applying the County zoning regulations and correctly at that. The County filed the appeal and the trial court indicated that the County did have standing to appeal a decision of its own zoning board. However, the trial court ruled that the zoning board acted properly and affirmed its decision.

Now the County has appealed to the Tennessee Court of Appeals, again arguing that the zoning board improperly granted a variance. My clients contend on appeal that the zoning board properly overturned the building code official’s decision to revoke the building permit, but that in any case that Cheatham County has no standing to prosecute this appeal.

The statute, Tenn. Code Ann. § 27-9-101, requires that a person be aggrieved in order to file such an appeal; the petitioner “must be able to show a special interest in the agency’s final decision or that it is subject to a special injury not common to the public generally.” Trosper v Cheatham County Planning Commission, 2010 WL 175094 (Tenn. App. 2010).

But assuming for the moment that the County does not own property in close vicinity to the property applying for the permit, should the County otherwise be permitted to appeal? In City of Brentwood v Metro Nashville Board of Zoning Appeals, 149 S.W. 3d 49 (Tenn. App. 2004), the Court of Appeals specifically approved an appeal by the city of Brentwood concerning a decision by the Metro Nashville Board of Zoning Appeals. But in that case, the appeal is somewhat understandable: these are two different governmental entities, which may have different policies and procedures. If the agency of one government improperly approved a development, it certainly does not seem unusual that the adjacent government might contest the issue.

But here we have a County government suing its own zoning board, a board which has no other legal existence other than as a part of the County itself. Furthermore, it would certainly seem that the County could solve whatever problem might be caused by the zoning board’s decision by simply amending it zoning regulations to preclude that from ever happening again. In my case, I believe that the true issue is permitting a mobile home in this area the County; by amending the zoning regulation to prohibit mobile homes on less than 5 acres, it would not happen again in the future. So there are certainly an alternative method of resolving this difficulty in the absence of an appeal to court.

Another interesting quirk under the circumstances is the fact that most counties do not bother to retain counsel for their zoning boards when they sue them. So for example, in my case, no one is arguing that the zoning board properly granted these variances. My clients are arguing that the zoning board granted relief appropriately but the variances were a necessary. The zoning board has no attorney. No one is arguing for its position.

On the other hand, the County did retain special counsel to challenge the decision of the zoning board. The County’s attorney is being paid by the County for his efforts to overturn the zoning board. It seems drastically unfair for the County to pay a lawyer to overturn the zoning board’s decision without at least making some effort to provide counsel to defend the zoning board’s position. In fact, it were not for the fact that my clients felt strongly about this issue, the case would likely have been overturned without opposition whatsoever because of my clients had not been willing to pay for my services, there would’ve been no opposition to the lawsuit.

From my perspective, the County suing its own board of zoning appeals is like the County suing itself. It’s the same entity. There is nothing for the County to sue about, there is no harm done to the County’s interests, and there should be no standing.

This case however will likely not turn on that broad general issue. In the papers filed with the trial court, the County neglected to make allegations concerning the basis for its standing in this case. It is far more likely that the Court of Appeals, even if it finds the argument regarding standing to be legally sound, that it will rule that the failure of the County to specifically allege the grounds for its standing in this case prevents it from concluding that the County did have standing. In other words, it will be a somewhat narrow ruling rather than the broader ruling I argue for above. Certainly, that’s fine for my clients' position. They win either way if the court rules in that fashion.

But this is nevertheless an interesting issue. Can the County appeal a decision of its own zoning board? Certainly, if he can, there should be some procedural safeguards built into make sure that the zoning board has some type of representation on appeal.

Bribes and Zoning

Unfortunately, bribery in the context of land use planning decisions is an all too frequent occurrence. The First Circuit Court of Appeals recently upheld a decision convicting an attorney who acted as a go-between in a zoning change for pay scheme. The council members got $25,0000 for their vote, around $ 5,000 each. One of the councilmen was an FBI informant. The technical issues on appeal aren't important for this blog entry. My point is the prevalence of bribery in the zoning context. It is a very unfortunate by-product of the zoning system. The case is US v Ciresi, 2012 WL 4757916 (1st Cir. 2012).

Variances

Professor Salkin has written a short intro to the law of variances which may be found here. It is an excellent overview but remember that our state statute is very restrictive and its terms must be met in order to legally obtain a variance. Professor Salkin speaks generally in the article but not only are use variances likely illegal here in Tennessee, but even getting an area (or bulk) variance is quite difficult here. The applicant must show some exceptional physical condition of his/her land which is different from his/her neighbors. Without some exceptional physical condition, any variance granted is likely illegal and could be overturned by a court of law.

TAPA Conference in Memphis

I'll be in Memphis tomorrow for the TAPA Conference. I'm on a panel and giving a short talk on What Planners Don't Know About Land Use Law. Here's the outline of my talk:

What Planners Don't Know About Land Use Law

1. Introduction

a. There's certainly not much planning law that the planning profession is not familiar with

b. We’ll discuss some issues where the answer is just aren’t clear so that no one knows what the law really is

2. Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407

a. Similar to the federal act that we all know, RLUIPA

b. But with several important differences:

i. Definition of substantial burden: infringes or curtails; very low threshold

ii. Burden of proof is clear and convincing, not preponderance

iii. “Essential to” [in furtherance of] a compelling governmental interest

c. Examples: homeless shelter, required dedications, athletic fields

3. Tennessee Non-Conforming Property Act, Tenn. Code Ann. § 13-7-208 (g) (4)

a. If the activity on the property is discontinued for 30 months or more, may it be resumed?

b. What is the meaning of subsection (g) (4): applies only if the owner intentionally and voluntarily abandons the nonconforming use and the government has the burden of proving an overt act of abandonment

c. Does (g) (4) strip all meaning from the 30 month discontinuation clause? How can these two sections be reconciled? Can they be reconciled?

d. I’ve only seen it addressed once in a trial court, and that court (a very fine judge) pretty much ignored the 30 month discontinuation clause.

4. Nolan and Dolan (and then BAM!!)

a. Nollan: Essential nexus

b. Dolan: Rough proportionality

c. BAM v Salt Lake County, 2008 UT 74, ¶ 8:

Of course, the Court did not mean rough proportionality at all. While 1 to 1 is a proportion, so is 1 to 1000, as any fifth grade student will be happy to tell you. Any two numbers, measured by the same units, form a proportion. So to be roughly proportional literally means to be roughly related, not necessarily roughly equivalent, which is the concept the Court seemed to be trying to describe. The proportion of 1 to 1.01 is roughly equivalent, while the proportion of 1 to 3 is not, for example. Unfortunately, by using the phrase "rough proportionality," the Court has engendered vast confusion about just what the municipalities and courts are expected to evaluate when extracting action or value from a land owner trying to improve real property. In this instance, rather than adopting the name chosen by the United States Supreme Court, we will use the more workable description of rough equivalence, on the assumption that it represents what the Dolan Court actually meant. 

d. Of course, it is still difficult to tell what rough equivalence is too. 

5. The Common Law Writ of Certiorari

a. This is the way most zoning cases are appealed to court

b. From the perspective of staff putting the papers together, there are several important considerations:

i. Ordinarily, the trial judge is limited to a consideration of the evidence that was heard by the planning commission/zoning board and included in the record; no additional evidence!

ii. Ordinarily, the trial judge may not substitute his/her judgment for that of the planning commission/zoning board, and then only reverse if the decision was arbitrary and capricious, beyond the board’s jurisdiction, or otherwise illegal

c. As a result, the staff should:

i. Make sure that all of the evidence necessary to support the decision of the planning commission/zoning board is in the written record which goes up to the trial court

ii. That includes ordinarily a copy of the subdivision/zoning regulations – just include a copy of the entire document in the record before the planning commission/zoning board

(1) If necessary, amend the rules of the commission/board and indicate in those rules that a copy of the regulations will always be included in any appeal

(2) Recently, in 411 Partnership v Knox County (2011), the Court of Appeals refused to consider certain arguments because the regulations were not in the record.

iii. Finally, writing the minute entry or order of the commission/board in the best way possible always assists a trial court in affirming the decision of the zoning board or planning commission.

(1) If the case is very controversial, have the city/County attorney prepare it or the attorney for the prevailing party before the board/commission
 d.Can a local government appeal a decision of its own zoning board?
6. Conclusion

Non-Conforming Uses: Digital Display Billboards

Next Monday morning there is scheduled another interesting argument concerning nonconforming uses  before the Davidson County Chancery Court, Part I. In this case, the Metro Board of Zoning Appeals considered and declared that a billboard located adjacent to the Corky’s barbecue near Brentwood was legally nonconforming notwithstanding the fact that it converted from a standard billboard sign to a digital display.

The Tennessee Non-Conforming Property Act, Tenn. Code Ann. § 13-7-208 (c) permits a structure or building to expand as needed for business purposes. This type of expansion, from a standard to a digital display, seems to fit nicely within the code provision.

Metro itself has appealed the decision in the case. One wonders first, how the Metropolitan Government can appeal a decision of its own zoning board, but we have discussed that issue in connection with my case involving the Mooneyhans previously here.

Second though is the substantive issue: Metro contends that the prohibition of digital displays is not a zoning regulation and as a result, the protections of the Tennessee Non-Conforming Property act do not apply. The difficulty with Metro’s argument is that the regulations concerning digital displays on billboards are in the zoning ordinance. It seems to me much harder to argue that it’s not a zoning regulation when the regulation itself is contained in the zoning ordinance.

Metro makes something of a novel argument, relying on cases where regulations which were not contained within the zoning regulation but which function as zoning regulations have been held to be zoning regulations and subject to the protections of the Tennessee Non-Conforming Property Act. One of those, is a case I tried several years ago, Metro v Buchanan, where the Tennessee Court of Appeals construed the Metro Property Maintenance Standards as applied to Mr. Buchanan’s property, as a zoning regulation and since Mr. Buchanan had been utilizing his property for more than 50 years, before the adoption of the Property Maintenance Standards, the Tennessee Non-Conforming Property Act protected against the regulation of his property by those standards.

But it’s one thing to apply that doctrine to non-zoning regulations which appear to work as restrictions on the use of property and appear to be zoning regulations in effect, and another entirely to take a regulation in the zoning ordinance and say that it’s just a general health, public safety and welfare regulation, not a zoning regulation. The argument appears to be that MetZo §17.32.050(h)(2) is not a zoning regulation. But the language of the regulation belies that assertion:

The following signs are expressly prohibited:
LED message boards and digital display signs in the AG, AR2a, R, RS, RM, RM-A, MUN, MUN-A, MUL, MUL-A, MUG, MUG-A, ON, OL, OG, OR20, OR20-A, OR40, OR40-A, CN, CL, SCC and SCN districts, except for time/temperature/date signs.

So, in the zoning districts referenced above, digital display signs are not permitted. But there are several remaining districts which are not covered by the prohibition, including all industrial, and several commercial, and also downtown districts. It is extremely difficult to argue that the above-referenced section of the zoning ordinance is not a zoning regulation since it expressly refers to some of the zoning districts established by the zoning ordinance, but not all of them. This is the epitome of what a zoning regulation is: you’re allowed to do digital displays in some districts and not others. That is exactly what zoning is all about.

As a result, the argument that the Corky’s billboard is not legally nonconforming seems to underestimate the policy and power behind the Tennessee Non-Conforming Property Act, which as I mentioned above, seems to apply directly to this type of case.

This should be an interesting decision. It will be an important decision, because it will have an impact on digital displays all over Davidson County, and perhaps, if the case is appealed, all over the state.

Intergovernmental Immunity

In a recent case from Missouri, the Missouri Court of Appeals concluded that a County choosing to construct a new government building within a small city was subject to the city’s building code requirements. Warren County v City of Warrenton, 2012 WL 4077370 (Mo. Ct. App. 2012). The ultimate result is based on a detailed reading of the enabling legislation in Missouri.

Such a detailed reading is probably not necessary here in Tennessee. Generally speaking, all local governments are exempt (or immune) from the building and zoning regulations of all other local governments. In fact so to is the state government, and also the federal government. There are differences for the final results, but the conclusion is clear: one local government cannot regulate the construction of a public building or other project, even within its jurisdiction, because the second local government is most often totally immune.

Probably the most significant case and certainly the most recent case is the Harpeth Valley Utilities District v Metro Nashville, 1998 Tenn. App. LEXIS 384 (Tenn App 1998). Judge Koch said there:

The Harpeth Valley Utility District has been operating since 1959 under the aegis of the Utilities Law of 1937, Tenn. Code Ann. §§ 7-82-101, -804,  providing water and sewerage disposal services to areas of Davidson, Williamson, and Cheatham Counties. As such, it is a governmental entity. See Tenn. Code Ann. § 7-82-301(a)(1) Unless specifically provided otherwise, a city's zoning power does not extend to state government instrumentalities located within its borders.

In the Harpeth Valley case, the utility district desired to expand its wastewater treatment plant located within the geographical jurisdiction of Metro Nashville. The city believed that the district had to comply with its zoning provisions and unfortunately for the district, the zoning precluded that particular use. As quoted above, the Tennessee Court of Appeals have little trouble finding in favor of the utility district.

The same is true with regard to building code regulations.

This is probably not the best way to resolve these difficulties. It seems to me that some type of a balancing test is warranted on those occasions where we have contests between different governmental entities regarding their right to use or construct a particular property within another government’s geographical jurisdiction. There are several different formulations which attempt to balance the equities under those circumstances I won’t get into a detailed review of those. But the law here in Tennessee remains as it has been for the last 50 years or so, that there is what amounts to an automatic exemption. At some point, the General Assembly needs to address this issue and allow some balancing depending on the particular circumstances of each case.

Recording studios as a home occupation

The Tennessean this morning had an article on that wonderful zoning concept known as home occupations. Zoning regulations for the most part regulate the principal uses of property, but there are many accepted “accessory” uses which are often associated with the principal use. For example, a single-family home in a zoning district which permits single-family residences is a principal use, but there may be many other accessory uses, such as a garage for parking the cars, tennis courts and swimming pools for recreational use and so forth. Note that these accessory uses, if they were the principal use would probably not be permitted: for example, if the swimming pool was on the property without a home, and admission was charged, it would be a commercial use and prohibited in the residential district. But if it is accessory to the use of a home by the occupants of the home, it is permitted in the residential zoning district.

A large category of these kinds of uses are known as home occupations. Many zoning regulations have restrictions on the types of home occupations which are permitted. Metro’s regulations prohibit more than one employee not living in the home, and no clients or patrons may be served on site. MetZo §17.16.250 (D). Unfortunately, this means that home recording studios, frequently desired by musicians, are likely illegal. Generally, while one or two of the musicians may live in the home, usually a number of others will have to come to the home to participate in the recording session. That is illegal under the current provisions of the code. Megan Barry, an at-large member of the Council, has proposed a new amendment which would specifically permit an accessory use to be called “home recording studio.” As many as 10 musicians would be permitted on a daily basis with off-street parking provided on-site. The recording studio would be subject to the noise restrictions already adopted.

Certainly, with the increasing numbers of people working at home, this type of flexibility is highly to be desired. Modern technology makes it much easier for many people to work from their homes, cutting down on traffic, helping the environment, and saving fuel. So long as there is a minimal disturbance on the surrounding neighbors, it would seem that these home occupations are generally a good thing.

The bill, pending in the Metro Council now, is 2012-292; it may be reviewed here.

We wrote about bee hives in residential neighborhoods a few weeks ago, and beekeeping might be viewed as a home occupation as well, accessory to the residential use. The question comes down to, as always, the impact on the neighborhood. If the home occupation disrupts of inconveniences the neighbors, it's not likely to be favorably viewed or permitted to stay.

The Bright Line Rule regarding Permits

Whenever I have a chance to lecture concerning the issuance of building permits, I always distinguish between the general rule across the United States known as vested rights, and a doctrine that I call the “bright line” rule which only a handful of states follow.

Generally speaking, the majority rule is that an applicant vests rights under a building permit only if the permit has actually been issued, and if substantial construction has taken place based on the issuance of the permit. Unfortunately, when you look at the majority of the cases which have been decided under this rule, the developer almost always loses. Certainly, there are a few cases where the courts have determined that substantial construction had taken place, but for the most part, the courts conclude that no substantial construction has been accomplished, and as a result, any change in zoning which took place after the permit was issued, may now legally prevent the construction.

Frankly, most developers have no idea that the law of vested rights is this conservative. Furthermore, I frankly think it makes little or no sense.

Contrast that with what I call the “bright line” rule. In those jurisdictions which follow this rule, if a building permit has been applied for, and the application is complete, then even if the permit had not been issued before a change in zoning, it can still be issued based on the law as it was at the time that the application was submitted.

Maybe I should call this the common sense rule, because it seems too common sensical for the courts or the legislatures to adopt it. Why shouldn’t the developer who has submitted an application which is essentially complete before a change in zoning, get the benefit of the law as it was at the time he submitted the application? There is no good reason for it. The applicant should be able to rely on the law as it existed at the time he submitted the application.

I saw an interesting case just in the last few weeks, Engley Diversified v. City of Port Orchard, 2012 WL 4023333 (USDC WD Wash. 2012), which exemplifies the bright line doctrine.

In that case, Engley applied for permits for billboards in March and April 2010 which were denied by the city. In June of 2010, the city passed new legislation which prohibited billboards within the city. The applicant which had already filed an appeal from the denial of the permits pressed forward with its fight and ultimately filed a lawsuit in state court challenging the city Council decision that the rights had not vested. That lawsuit was removed to federal district court by the city and the District Court concluded that the applications submitted in March and April 2010 had the effect of vesting the rights before the change in the law in June even though no actual permit had been issued.

It is interesting to me that the city removed this case to federal court. Here in Nashville, it would be somewhat unusual to see this kind of a case get removed. I did have a case within the last two or three years where the city removed only my allegations of a civil rights violation to federal court, but left the remainder of the case (a common law writ of certiorari) in the state court. I’m not sure you can do that either – it seems to me that you have to remove all or nothing. But surely, most cities and towns here in middle Tennessee would see federal court as not wanting to be involved in these types of zoning controversies. So, the removal by the city in this case is interesting, I wonder why they felt that they would get a better reception in federal court than they would in state court.

As it turned out, the reception federal court wasn’t very good. The city’s main defense seemed to be that because the applications were technically for sign permits, the applicant did not actually submit applications for building permits, and only building permits would have the effect of vesting rights under Washington law.

The federal court concluded that the request for sign permits instead of building permits was a distinction without a difference. The city failed to show that it treated the application any differently in any meaningful way, than it would have an application for a building permit. In addition to the permit applications, the applicant submitted sketches, site plans, engineered drawings from a professional engineer, and structural calculations for the proposed billboards. Furthermore, the city charged the applicant fees under the provisions of the building code for at least four of the permits and could not explain why such a fee would be charged if the applications were for “sign permits” as opposed to building permits. Finally, although the city argued that additional information was needed, the city failed to say what additional information was missing from the applications.

The federal court concluded that the applications were complete and that the city’s decision to the contrary was erroneous; as a result, Engley’s applications had vested under the terms of the controlling Washington statutes.

As I mentioned above, the fact that the city removed the case to federal court seems unusual to me; but the case is nevertheless an interesting application of the bright line rule applicable in Washington state. The other interesting factor here is the city’s fight to prevent the billboards from being constructed. It seems pretty clear when you read the case, that the city was trying to do anything to avoid having those billboards constructed after the adoption of its new ordinance prohibiting such billboards within the city limits.

Truly, this kind of a fight seems ill-advised and it is the kind of thing that makes owners, developers, and building permittees distrustful of all government regulation. Ultimately, it seems like the local government tries to use regulation to subvert legal construction activity, rather than to apply it in a fair and honest manner.