Cert petitions: First applications

A recent Tennessee Court of Appeals decision involving the common law writ of certiorari highlighted a case decided by the Tennessee Supreme Court over a year ago, but one which I had missed. The recent case, handed down within just the last day or two by the Tennessee Court of Appeals, Phillips v Northwest Correctional Center, stands for the proposition that if a petition for writ of certiorari is properly verified, the fact that it does not state that it is the first application for a common law writ is not necessarily fatal to the cause of action. The Court of Appeals relies on a case, Talley v Tennessee Board of Professional Responsibility, 358 S.W. 3d 185 (Tenn. 2011), which so holds.

This is certainly a reasonable way to pursue these cases. The Supreme Court in Talley holds that because the proper verification is a requirement of the Tennessee Constitution, that is not waivable, and that the court loses subject matter jurisdiction if that requirement is not met. On the other hand, the requirement that the petitioner state that it is the first application for a writ of certiorari is merely statutory, and that its absence from the petition is not necessarily fatal. The court indicates that the petition can be amended, and that the amendment relates back to the time of the original filing of the petition.

While the requirement of the verification for an appeal from a land use planning board or commission is still a needless complication, hopefully, the Talley case will usher in a more sensible and relaxed approach to the common law writ of certiorari. If the statutory requirement that the petitioner must state that it is the first application for the writ of certiorari, perhaps the other statutory requirements are also waivable and not fatal as a jurisdictional matter. “Tis a consummation devoutly to be wished.”

Sign Regulations and the First Amendment

Unfortunately, everyone struggles with the applicability of the First Amendment to the federal Constitution in the context of sign regulations. One of the leading authorities in land use planning law in this country, Daniel Mandelker, has written a publication available online reviewing this area of the law and its impact specifically on business accessory and other on-site signs (as distinguished from billboards).

If you or your municipality are struggling with this area of legal doctrine, I highly recommend this publication. It is clearly written, and emphasizes the important points that need to be made in order to understand how best to avoid constitutional difficulties in the context of sign regulations.

The book is available here.

Zoning Seminar Today!

I'll be in a zoning seminar today. Come by and join us!

Lots of Record

Cheatham County v Cheatham County Board of Zoning Appeals, 2012 WL

This very unusual case involves two decisions by the Cheatham County Board of Zoning Appeals. The board originally heard an appeal regarding access to the subject property and granted it. Roughly a year later, after the property had been sold, the new owner obtained a building permit and bought a mobile home. The mobile home was placed on the property, electrical and utility connections were made, and just as he was about to request a final certificate of occupancy, the building official revoked the building permit. The building official ruled that the minimum lot size in that area of the county was 5 acres, and that the subject property being only 2 ½ acres, was too small for residential structures.

The owner, obviously surprised by this ruling, appealed to the zoning board and the zoning board once again indicated that this should be a legally cognizable lot and granted a variance for the property owner to use it. At that point, the county itself filed a lawsuit against its own zoning board, arguing that it improperly granted the variance.

The trial court affirmed the board’s decision granting a variance, but denied attorneys’ fees and the county appealed to the Tennessee Court of Appeals. About a week before the hearing before the Court of Appeals, the county found an old ordinance, adopted in 1991, but never codified, which specifically allowed the use of a lot if it had been created before the adoption of the zoning regulations, as this one had, even if it smaller than the minimum lot size.  As a result the county dismissed its appeal to the Court of Appeals, but the property owner requested permission to present his argument concerning attorneys fees.

The Court of Appeals, finding that the County had treated the property owner unfairly, concluded that there was a constitutional violation and awarded attorneys fees.

Perhaps the most interesting aspect of the Court of Appeals decision is the concurring opinion of Judge Cottrell, which emphasized that the county had no standing to appeal the decision of its own zoning board in the first place.

Perhaps equally importantly, this case is a reminder that non-complying lots of record (lots which were created before the adoption of zoning regulations) usually have special rules specifically attributable to them in almost all zoning regulations. Understanding how those rules operate and recognizing the importance of those rules is critical in handling these cases. Usually, most zoning regulations will simply allow a non-complying lot of record to be used for some purpose which is consistent with the zoning district in which it is located.

More on Corruption in Zoning

United States v. Plowman, No. 11-3781, 2012 WL 5846243 (7th Cir., Nov. 20, 2012)

Once again, I will briefly return to the subject of corruption in zoning. This time around, the case involves unethical pressure on members of the local board of zoning appeals. The case comes to us from Indianapolis, where a former law enforcement officer was elected to a position with the city council. Ultimately, he became the chairman of the council development committee, and as such had significant influence in who got appointed to the local zoning board. Over time he saw to it that his campaign manager was appointed.

The FBI stepped in and undertook a sting action, sending an agent to meet with the defendant, posing as the owner of a number of strip clubs with an interest in developing a new property in Indianapolis. The defendant assured the FBI agent that for a fee, he could get the zoning board to approve the location as well as the necessary permits and licenses regarding tobacco and alcohol.

What always astounds me about these cases is the small amount of money involved. The defendant was paid $8000 for his “influence” which he himself characterized as “control of the board of zoning appeals.”

The defendant attempted to defend on the grounds of entrapment, but both the trial court and the 7th Circuit Court of Appeals could find no legitimate grounds upon which to base an entrapment defense. The defendant was convicted and sentenced to 40 months in prison as well is two years of supervised release.

Seminar Next Week!

Next week, on December 11, 2012, Sam Edwards, Bryan Echols, and I will present a daylong seminar entitled, “Practical Guide to Zoning and Land Use Law.”

I'm sure there is still time to register. Here's the link.