Monday, October 22, 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.

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.

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