Monday, April 29, 2013

Tennessee Zoning Statutes v. Standard State Act

One of the most interesting aspects of the adoption of the Tennessee Zoning Enabling Statutes, Tenn. Code Ann. §§13-7-101 (county zoning) and 13-7-201 (municipal zoning) is the differences between the Tennessee legislation and the so-called Standard State Zoning Enabling Act of 1924 (and revised in 1926) promulgated by a Blue Ribbon committee, under the supervision of the federal Department of Commerce. Interestingly, the Blue Ribbon committee included Ed Bassett and more importantly to Tennesseans, Alfred Bettman, who drafted the legislation which was to become the Tennessee Zoning Enabling Statutes.

Although Bettman felt that the Standard Act was reasonably well done, he had a number of significant concerns with its formulation. As a result, the Tennessee provisions are something of an amalgam of the Standard Act, the Bettman proposal, and some native Tennessee provisions tossed in for good measure.

I thought that I would discuss some of the differences over the next months in installments of my little writings here. I have copies of many of the original documents prepared by Alfred Bettman and much of the discussion will be based on those documents. Those are available, thanks to the archives at the University of Cincinnati, where there is extensive amount of material devoted to the Bettman family.

In addition, and of some significant interest, Bettman was involved in writing a book along with Ed Bassett published in 1935 and entitled Model Laws for Planning Cities, Counties, and States. The book was published by Harvard University Press. The format is broken basically into two parts: first, Ed Bassett discusses his thoughts and concerns regarding planning and zoning, followed by a group of legislative forms drafted by him which are suggested as model laws for states to adopt. The second part of the book is authored by Bettman, with a similar brief recitation of his thoughts and concerns, followed by the legislative forms authored by Bettman.

The Tennessee statutory provisions were based largely on Bettman’s model forms, although as I have mentioned above, several changes were made, sometimes to more closely correspond to the Standard  Act, and sometimes to provide greater protection to property owners, particularly the agricultural exemption in the county legislation.

Hopefully, over the next several weeks, we can discuss these proposals and distinguish them from the final Tennessee versions.

I might finally add, that Bettman was hired to draft the Tennessee legislation, and the terms of the agreement included not only zoning legislation, but also planning and subdivision legislation as well. I’m not going to discuss the provisions dealing with planning or subdivisions, but will limit myself to what became the Tennessee Zoning Enabling Statutes, passed in 1935.

Saturday, April 27, 2013

Can a local government sue its own zoning board?

The legal question concerning whether a local government can sue its own board of zoning appeals seems to be gaining steam. First, my own case, Cheatham County v Cheatham County Board of Zoning Appeals and Randall and Margaret Mooneyhan, was decided last November. The issue was not directly addressed in that one however by the Court of Appeals because the County withdrew its appeal shortly before the oral argument before the court, and the only issue which remained was whether attorneys’ fees should be awarded to the Mooneyhans. However, in addressing this issue, both the majority and concurring opinions seem to clearly indicate significant doubt about the ability of a local government to sue its own board.

Meanwhile, over in Collierville, in a case involving the non-conforming status of billboards, the zoning board evidently voted not to require the owner to take the offending billboards down, and the Board of Mayor and Alderman have voted to sue the zoning board in order to have the billboards removed. This turn of events arises out of an interesting decision issued previously by the Tennessee Court of Appeals, Abbington Center v Town of Collierville (Tenn. App. 2012). We previously discussed this case.

Here in Nashville, there are two other cases with the same issue involved. In Metro Nashville v Metro BZA and Lamar, the local government suit its own board of zoning appeals arguing that its decision finding the replacement of a mechanical sign face with a digital sign face was not permitted under the terms of the local zoning ordinance and was not protected by the Tennessee Non-Conforming Property Act, Tenn. Code Ann. §13-7-208. Among the issues raised, was the propriety of a suit by the local government against its own zoning board. The Davidson County Chancellor, Claudia Bonnyman, ruled in favor of Metro Nashville, finding that the local government could sue.

However, just last Friday, in a case styled Metro Nashville v Metro BZA and CBS Outdoor Inc., CBS filed a motion to dismiss raising the same argument, but the local government lacked standing to file suit against its own zoning board. This time, a different Chancellor, Carol McCoy, concluded that the local government could not sue its own board of zoning appeals.

Both cases, as you might suspect, are going up on appeal. There are certainly policy arguments on both sides. The ultimate answer to the question may rest with the Tennessee Supreme Court.