McBride v Farragut BZA

McBride v. Farragut Board of Zoning Appeals, (Tenn App November 29, 2012)

The petitioning homeowner, lived in a residence constructed in 1971 with a raised concrete deck on the rear of her home. In 2011, she submitted an application to erect columns and a roof over the existing deck. The local zoning ordinance permitted patios and decks and other non-roofed and on enclosed appurtenances to be placed within 10 feet of the side and rear property lines. On the other hand, the principal building had to be 25 feet away, and the zoning administrator concluded that putting a roof over the existing deck which converted into a part of the principal building and as a result would require it to be 25 feet away from the property line. Since the deck was roughly 18'7" away from the rear property line, a variance was necessary.

The homeowner applied for a variance to the board of zoning appeals but was denied because there was no evidence that there was any exceptional physical feature the property justifying relaxation of the 25 foot side and rear yard requirement.

On appeal to the trial court, the zoning board decision was reversed. The trial court felt that the pre-existing deck, as a part of the original principal structure, was basically exempt from the 25 foot rear yard requirement. The colloquy between Court and counsel is reprinted in the decision, and the court carefully asks whether or not the deck will be enclosed. It was not proposed to be enclosed.

The trial court determined that McBride’s raised, concrete deck constructed on the same foundation as the principal building is part of the principal building – not a patio, deck, or similar appurtenance as identified in the ordinance.

As a result the Court of Appeals upheld the decision of the trial court.

The city argued that the trial court’s decision was a strained interpretation of the zoning regulations, and it seems to me that that argument is probably not far from the mark. The applicant here was an elderly woman who was suffering from skin cancer. That was the reason for the roof in the first place. Certainly, some sympathy for her personal plight may have ultimately affected the rationale of the court.

Another interesting facet of this decision is that if the property had been industrial or commercial instead of residential, it would have been protected by the Tennessee Non-Conforming Property Act, Tenn. Code Ann. §13-7-208. And under subsection (c), any nonconforming property may be expanded. So interestingly, a nonconforming commercial or industrial structure could be expanded, by adding new columns and a roof let's say, but this residential structure under the terms of the zoning board decision, could not be so expanded. Is the impact of adding a few columns and a roof to existing deck really that significant in terms of the impact on the surrounding property owners? Most likely, such addition in a commercial or industrial arena would be much more intense, yet it is protected statutorily.

Equal Protection, Class of One

Loessel v City of Frankenmuth, 692 F. 3d 452 (6th Cir. 2012)

This is an interesting case where a city with a historic town center attempted to keep Wal-Mart from opening a store in its downtown area. The owners of the property contracted with Wal-Mart to sell the property for the use as a store, for roughly $4 million. Upon hearing of the arrangement, the city adopted a zoning regulation which prohibited stores in excess of 65,000 square feet (the Wal-Mart store would’ve been roughly 105,000 square feet).

The property owners sued the city after Wal-Mart canceled the deal as a result of the new zoning regulation. The case was tried to a jury based solely on an equal protection theory (the trial court dismissed the other the other claims in the complaint) known as the “class of one.” Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam). The jury returned a verdict in favor of the owners in the amount of $3.6 million.

The city appealed contending that there was insufficient evidence for the plaintiffs to prevail on the class of one theory, in that there was little evidence that the plaintiffs were similarly situated to other differently treated property owners, the plaintiffs failed to demonstrate that there was no rational basis for the 65,000 square foot cap on size, and there was little evidence of personal animus or ill will against the owners.

The Sixth Circuit concluded that there was sufficient evidence concerning similarly situated property owners, and concerning the irrational basis of the cap, but that there was insufficient evidence concerning personal animus or ill will.

Because it was unclear as to what basis the jury actually relied upon in returning its verdict, the Sixth Circuit remanded for new jury trial. Because the jury could have relied upon the personal animus or ill will upon, and because there was insufficient evidence as to that prong, the case had to be remanded.

From a litigation standpoint however, it would certainly be scary for the city to take that case back into a federal courtroom. Having already had one jury returned a large verdict, trying the case again is probably not the best of ideas.

ICFG RLUIPA case settled for $2.3 million

In an interesting case from California, a city which had prevented the location of a church in an industrial zoning district agreed to pay $2.3 million in settlement of the case against it. The city did get significant concessions: the original industrial site cannot be used for religious purposes; the church may continue to search for an eligible site properly zoned, but cannot see the city for any denial outside the appropriate zoning districts. The city released a statement in September 2012 announcing the agreement.

The city, in the press release, maintained that it had a strong position to defend the litigation but given the unpredictability of litigation, and the potential for a large loss, settlement was the most prudent course of action.

Once again, it is extremely interesting to note that this result was obtained by the church under the terms of the federal act; it would certainly seem that a church in Tennessee given similar facts, would have an easier time under the Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407. Certainly the payment by the city, $2.3 million, is a significant settlement.

The 9th Circuit Court of Appeals had reversed a dismissal of the case by the trial court. 2011 WL 505028 (2/15/2011). The settlement was agreed to after the appellate court decision.

Recent Tennessee Cases: 2012

These cases were decided late last year, or during this year and are listed here for the benefit of my seminar participants. Click on the case name to view the court's decision:

Cheatham County v Cheatham Cty BZA

McBride v Farragut BZA,  2012 WL 5984887 

Loessel v City of Frankenmuth, 692 F. 3d 452 (6th Cir. 2012)

Wright v Shelbyville BZA, 2012 WL 5378267

Ready Mix v Jefferson County, 2012 WL 3757025

Carruth v City of Etowah, 2012 WL 3025863

Smith County RPC v Carver Trucking, 2012 WL 2859931

Depot Property LLC v Town of Arlington, 2012 WL 2849515
    previous decision here, 2011 WL 334472

Murfreesboro Mosque

Shore v Maple Lane Farms, 2012 WL 1245606

Gillham v Mount Pleasant, 2012 WL 1079333

SNPCO v Jefferson City, 363 SW 3d 467 (Tenn. 2012)

Abbington Center v Town of Collierville, 2012 WL 440701

Fielding v Metro Lynchburg, 2012 WL 327908

Brundage v Cumberland County, 357 SW 3d 360 (Tenn. 2011)

CK Development v Town of Nolensville, 2012 WL 38287

Prime Locations v Shelby County, 2011 WL 6140871 

411 Partnership v Knox County,  2011 WL 8106248

Legislative vs administrative actions

The Utah Supreme Court recently decided an interesting case concerning the distinction between legislative and administrative action. Applying the reasoning from an earlier case, Carter v Lehi City, 2012 UT 2, ¶ 32, 269 P.3d 141, the court concluded that a revised development agreement concerning a planned unit development was legislative and not administrative.

With that in mind, two guidelines that we set forth in Carter are particularly applicable to the matter before us. The first guideline is that “legislative power
gives rise to new law, while executive power implements a law already in existence.” To clarify this distinction, we recognized “two key hallmarks of legislative power.” One hallmark is that “[l]egislative power generally . . . involves the promulgation of laws of general applicability.” Another hallmark is that “[l]egislative power generally . . . is based on the weighing of broad, competing
policy considerations.”

Suarez v Grand County, 2012 UT 72


Of course, here in Tennessee the landmark decision is McCallen v City of Memphis, 786 SW 2d 633 (Tenn. 1990), which essentially concludes that if the challenged action merely follows policies already established that it is administrative in nature. Trying to distinguish between these two different forms of action is often difficult, but it is an important aspect of land use planning all. For example, assuming that the decision could be characterized as administrative, even a zoning change might be challenged in a manner that is more easily overturned. However, here in Tennessee, based on Fallin v Knox County, 656 SW 2d 338 (Tenn. 1983), virtually all zoning changes are regarded as legislative.

RLUIPA Jury Awards $1.1 million

In Academy of Our Lady of Peace v. City of San Diego, a jury has awarded over $1.1 million to a religious school which was unable to expand because the local council in the city of San Diego overturned approvals given by the city staff and the city planning commission. Whenever the local legislative body overturns decisions made by professional staff, you immediately begin to get concerned that politics has interfered in the process. Most of the time, that’s not any difficulty: politics in the city Council’s not unexpected certainly. But when you’re dealing with the federal statutory right, such interference inexorably leads to substantial jury will awards. And that’s just what happened here.

Historic treehouses

Sometimes, the zoning and planning issues involved in a particular controversy are buried by the personality conflicts in a neighborhood setting. Recently, construction was begun on a treehouse in the Richland West End Historic District here in Nashville. The owner of the property evidently discussed the necessity of a building permit with Metro Codes and was informed that no building permit was in fact unnecessary. He also checked with the staff at the Metro Historic Zoning Commission, and after review, the staff issued a permit for the treehouse as an accessory building.

Once construction on the project had begun, the neighbors were not pleased. Complaints were lodged with the MHZC staff, and ultimately an appeal was filed from the staff decision to the commission itself. The matter was taken up and considered by the commission on November 14, and while it was not clear that the commission in fact had jurisdiction, it supported the decision of the staff.

Part of the difficulty in this situation is that the lot sizes are fairly small and the homes are very nice, and of significant size. As a result, any additional construction, even in one’s own backyard, is not very far away from the backyard of your neighbors. This can frequently lead to conflicts, and it seems likely that that is what happened here.

The Commission’s response, having a hearing, allowing everyone to have their say, certainly seems a reasonable response. Unless these kinds of children’s playhouses are of gargantuan proportions, their temporary nature would seem to belie any need for them to comply with historic, or for that matter, even regular zoning requirements. At the same time, if I was constructing one, I would make sure to keep the playhouse out of the rear and side yards just so I didn’t run into any problem from a zoning standpoint.

Perhaps the historic zoning commission would be best off simply saying they have no jurisdiction or creating a policy that precludes review of this type of construction.

Murfreesboro Mosque Opens!

The Nashville Tennessean today reported that the Islamic Mosque in Murfreesboro, Tennessee, finally opened this past Saturday. It took a long while to get it done, but it is finally complete and open for services. Ultimately, it took a federal district court order to get it open, and the issue concerning the continuing viability of the use of the Murfreesboro Post as the newspaper of record for notices of County meetings is still suspect as a result of the local court ruling. The last I had heard, the County had appealed that decision and I guess we will get a resolution from the Tennessee Court of Appeals.

Third Edition of Tenn Zoning Board book!

I have just finished updating my book,  Tennessee Zoning Boards: Practice and Procedure, which should be available on Amazon soon. The book adds sections devoted to the Tennessee Religious Freedom Restoration Act, conditions on granted applications, non-conforming uses and others. The last chapter is particularly valuable covering the common law writ of certiorari in detail, as well as including a sample form petition, and a list of the critical components which must be included in the petition.

Take a look and pick up a copy if you do any work before a zoning board or ever file cert petitions.

The book is also available for purchase ($25) here.

Zoning Seminar Today!

I'm in a zoning seminar today. Come by and join us at the Millennium Maxwell House Hotel.

Seminar Next Week!

Next week, on November 13, 2012, I will present at a seminar, "Legal Issues involving Local Governments," here in Nashville. I will briefly discuss some of the basic issues relating to land use and zoning in Tennessee

I’m sure there is still time to register if you would like to attend.

For more information on the seminars, please visit the NBI website.

Wright v Shelbyville BZA (II)

Yesterday, the Tennessee Court of Appeals released its opinion in Wright v Shelbyville Board of Zoning Appeals, the second time this case has been before the appellate court. The saga continues.

In the first iteration, the city had adopted a new zoning district (I-3) and all proposed quarries were to be located in that district. Unfortunately, wouldn’t you just know that the Wright property was located in an I-2 zoning district. The Wrights challenged the adoption of the new I-3 district and prevailed in the first case. The Court of Appeals found that the new zoning had not been adopted properly.

After the decision of the Court of Appeals, the Wrights requested that their application be considered under the existing (I-2) zoning. The city denied this request, and the Wrights appealed that decision to the Board of Zoning appeals which affirmed the denial. The city’s position evidently was that the ruling in the original trial court was res judicata, because the Wrights had failed to demonstrate that there was a vested right to have the original application considered under the original zoning rather than the I-3 zoning. This decision was affirmed by the trial court in the second case, although the court added that to the extent that the doctrine of res judicata was not available, the decision of the board of zoning appeals prohibiting consideration of the original application would otherwise be arbitrary and capricious.

The Tennessee Court of Appeals was certainly not impressed with the res judicata argument. The court began by saying that the law of vested rights has no relevance to the appeal. If the original argument in the first case was that the application was submitted before the I-3 was adopted, it doesn’t make any difference because the I-3 zoning was declared void in any event. There’s no vested rights argument to be made at this point because the zoning which purportedly took effect in fact never did.

The court summarized the law of vested rights:

The concept of a vested right in a zoning, which has long been recognized in Tennessee, allows property owners, who have acquired the requisite ‘vested’ interest under an existing zone, to use and develop the property pursuant to said zone even if a subsequent zoning ordinance is enacted.” Westchester Co., LLC v. Metro. Gov’t of Nashville and Davidson County, 2005 WL 3487804, at *3 (Tenn. Ct. App. December 20, 2005). Rights under an existing ordinance do not vest until substantial construction or substantial liabilities are incurred relating directly to construction. State of Tennessee, ex rel. SCA Chemical Waste Services v. Konigsberg, 636 S.W.2d 430, 437 (Tenn. 1982). In summary, a landowner who asserts a vested right to develop under a prior zoning ordinance must demonstrate good faith reliance on final prior government approval coupled with substantial expenditures or liabilities incurred that relate directly to construction.

But the court emphasized that this doctrine is not applicable under the circumstances here. The challenged law was found to be void and therefore the doctrine of vested rights was simply not necessary to protect the interests of the plaintiffs.

The Wrights were entitled to have their application considered under the only zoning in place at the time of their application. There was no “prior” zoning, no subsequent (2004) amendment, and no need for the Wrights to assert the vested rights theory. The Wrights’ property remained zoned I-2, a category that allowed quarries as a conditional use.

As a result, the Court of Appeals reversed the conclusion of the trial court concerning that issue. However, with regard to the trial court’s alternative finding, that the board of zoning appeals did act arbitrarily and capriciously, the court upheld that decision. In this part of the case, evidently the city argued that the original application was not still pending. The court thought otherwise.

The application was originally submitted in 2004, but when the zoning change took place, the plaintiff simply asked that the application be removed from the agenda and specifically asked that the application remain pending. There was no time limit in the zoning ordinance within which such applications had to be heard. The city never notified the plaintiff that they had to proceed on the application. And the delay was occasioned by the appeal which was successful in striking down the original zoning change. The plaintiffs asked on numerous times to have the application considered on its merits but were denied.

Finally, the zoning board also argued that because the plaintiff updated their application in 2010 that this operated to invalidate the original application. The court concluded that updating the application after a significant delay was perfectly reasonable given the circumstances in this case.

The court addressed two final issues, the remedy and attorneys fees. With regard to the issue of attorneys fees, the Court of Appeals remanded the case for consideration by the trial court. Since below the plaintiffs had been unsuccessful, but that issue has now been reversed, the Court of Appeals indicated that attorneys fees would be appropriate.

With regard to the issue of remedy, the concern was whether to remand to the board of zoning appeals or simply have the court order that the permit be issued. Ultimately, the court felt that under the common law writ of certiorari the most appropriate remedy was to remand.

The court however did go into a discussion of the differences between conditional use permits and variances. To my knowledge, this is the first time I’ve seen this in a case here in Tennessee. I think the objective was to make sure that the zoning board understood that their discretion was not limitless, and to suggest that they needed to tread carefully in considering whether to deny this permit.

Here’s the courts language which I think is instructive generally on the issue of special exceptions and conditional use permits.

A special exception, unlike a variance, is not an exception to a zoning ordinance. Instead, it is a use that is expressly permitted. “Special exception” is clearly a misnomer. Since the use is specifically provided for in the ordinance as one to be permitted where the conditions legislatively prescribed are found, no exception to the ordinance is being made. The use permitted by approval of the board of adjustment, the legislative body, the planning board, or the “zoning administrator,” as the case may be, contingent on meeting the standards and conditions set forth in the ordinance, is more correctly termed a “conditional use.” This is, in fact, the term which is used in some statutes.
3 Rathkopf’s THE LAW OF ZONING AND PLANNING § 61:9 (4th ed.) (emphasis added). 

A conditional use or special exception allows a landowner to put his property to a use which the ordinance expressly permits. It requires only a finding that the conditions stated in the ordinance have been met. “The inclusion of the particular use in the ordinance as one that is permitted under certain conditions, is equivalent to a legislative finding that the prescribed use is one which is in harmony with the other uses permitted in the district. Id. Where the legislative body has authorized a use by special exception or conditional use, courts will presume that such use serves the public interest when located in the district where it is authorized. Classification of a use as one that is permitted as a special exception constitutes a legislative finding that the use accords with the general zoning plan, is in harmony with, or will not adversely affect, the surrounding neighborhood, and meets a public need. 

Tennessee law follows these generally applicable principles. In fact, state statutes recognize the difference between a variance and a use permitted under certain conditions. Tennessee Code Annotated § 13-7-207 sets out the powers of boards of zoning appeals. Subsection (3) authorizes such boards to grant a variance from strict application of zoning regulations where exceptional difficulties to, or undue hardship upon, the property owner would otherwise result. On the other hand, subsection (2) authorizes a board of zoning appeals to “[h]ear and decide, in accordance with the provisions of any such ordinance, requests for special exceptions.” (Citations omitted).

Although the facts in this case are somewhat obscure, the opinion by the Court of Appeals is very instructive. Not only does it give a thumbnail sketch of the doctrine of vested rights, but for the first time in the state of Tennessee, we have an appellate court discussing the distinctions between variances and conditional use permits. It’s a very useful opinion and will no doubt figure prominently as land use planning cases continue to be decided here in Tennessee.