Update on the Boyd Theater

There appears to be a solution to the Boyd Theater economic hardship question that we discussed here   several weeks ago. An anonymous donor has pledged $4.5 million for the purchase of the theater. While the application of the developer still is pending before the Philadelphia Historic Zoning Commission, since economic hardship regulations usually include the inability to sell the structure for a reasonable price, and since the price offered by the anonymous donor matches the price which the developer was willing to accept, it would seem difficult at this point to contend that there is still an economic hardship.

Of course, there is still a broader issue as to whether or not the theater can be rehabilitated and where the money for such rehabilitation might be coming from. But it was certainly a grand theater and if rehabilitation is at all possible, it would certainly seem as though an attempt is worth the effort.

A couple of new books . . .

I picked up a couple of new land use planning books recently. The first, is a well-known hornbook, Land Use Planning and Development Regulation Law, by Juergensmeyer and Roberts, West Publishing, 3rd Edition, 2012. In the past I have mainly used Dan Mandelker’s excellent single volume Land Use Law (setting aside the excellent multi-volume treatises often necessary for more in-depth research). But that book seems to be out of print, and I have wanted a replacement for basic issues in zoning and land use. J & R serves that function well. It seems very comprehensive, and I may ultimately prefer it in any event. As an example, J & R discusses an often overlooked detail in the scheme of land use planning regulations; what I call intergovernmental immunity. That is, the immunity of local, state, and federal governments from zoning regulations. J & R at §4:22, page 148.

Chapter 8 of J & R deals with building codes, a topic in which I have a great deal of interest, but which is not often discussed in the context of land use planning law. In addition, the book does not stray beyond land use planning all very often. As a result, much of the information is directly related to not just my practice of law, but when I teach, the topics which I teach to students. I find that to be very helpful. In fact, I always like to have some horn book which I can recommend to students so that they can get a quick and simple explanation of some of the cases we discuss in class and get a general overview of the topic. Sometimes in class discussions the minutiae of the case overwhelms the general outline of the subject matter.

One downside of the book is that the index does not seem to be very detailed. For example, with regard to the intergovernmental immunity that I mentioned above, I could not find that subject matter referenced in the index on a quick search. It is there, but it takes a little effort to find.

A second book that I found recently is Zoning and Land Use Law in Georgia, by Seth Weissman, Douglas Dillard, and Jill Skinner. It was published in 2013, and is available to order online.

This is a typical one state overview of land use regulations. There are many of these across the country, and I have always found these books to be quite good. Usually, they are written by a practitioner in the state as a result the information is filtered through the eyes of an attorney with an excellent understanding of the wall of that particular state and the way it fits together. This book is no exception: the authors have done an excellent job of explaining land use in zoning law in Georgia and for anyone wishing to gain an understanding of outlaw, this book is highly recommended. The development of land use planning and zoning in Georgia seems to been a little bit different from that in the various other states, and so this volume is of particular interest in contrasting the development of land use planning in Georgia from estate such as Tennessee. Ultimately, it appears to me that the regulations come out pretty close in the end, but different paths were taken to reach a similar goal.

Zoning for Taxes: Religiously Discriminatory?

In a very interesting RLUIPA case decided by the Eastern District of Michigan, a church which desired to buy property in a highway commercial zoning district for use as its main place of worship lost its argument that the Michigan Township violated its First Amendment protections and/or RLUIPA. Alger Bible Baptist Church v. Township of Moffatt, 2014 WL 462354 (E.D. Michigan Feb 5, 2014). Religious uses are conditionally permitted in four of the six zoning districts within the township, but unfortunately, the church made a deposit on the property located in the highway commercial district (which does not permit such uses) before understanding that the zoning ordinance precluded the use.

For the most part, the church’s argument was that similar secular businesses were permitted in the highway commercial district, and that this violated both the First Amendment and RLUIPA (the equal terms clause primarily). The township defended on the basis that this zoning district was a neutral law of general applicability and designed only for tax paying land uses. The court found the zoning ordinance to be a neutral law of general applicability and further that the church did not allege a single instance where a non-secular institution which was tax-exempt but was nevertheless permitted to operate in the highway commercial district. “It follows that ABBC has not pled sufficient facts to demonstrate that the Zoning Ordinance impermissibly targets religious conduct for distinctive treatment. Indeed, a church has no constitutional right to be free from reasonable zoning regulations nor does a church have a constitutional right to build its house of worship where it pleases.”

The claims under the Michigan Constitution were also dismissed. Inasmuch as there was no reference made to a statutory cause of action under Michigan law, I presume that Michigan does not have a state Religious Freedom Restoration Act.

However, this interesting Michigan case which may well be appealed to the Sixth Circuit, and likely would have a different ending here in Tennessee. Tennessee RFRA puts the burden of proof on the government to demonstrate by clear and convincing evidence that the zoning regulation is essential to a compelling governmental interest and that the  regulation is the least restrictive means of accomplishing that compelling interest if the regulation impinges or curtails religious freedom. As I have said many times on this blog, that is a very high burden of proof to place on the government, and most likely impossible to sustain in most if not all zoning cases. As a result, it seems to me that the result in the Michigan case, if transferred somehow magically to Tennessee, would be reversed because of the Tennessee Religious Freedom Restoration Act.

Legislative Immunities and Zoning Changes

Recently, the Nevada Supreme Court ruled that there was no First Amendment right of association and no unconstitutional vagueness where a city legislator was censured for voting for a zoning change on a project where he had a conflict of interest. Carrigan v Commission on Ethics of the State of Nevada, 313 P.3d 880 (NV Nov. 27, 2013).  The case was on remand from the US Supreme Court, Nevada Commission on Ethics v Carrigan, 131 S Ct 2343, 180 L. Ed. 2d 150 (2011), which found that the censure of council member because of his failure to recuse himself when voting on a matter where his campaign manager was paid $10,000 a month by a developer while seeking permits from the city was not protected by any First Amendment right in casting a vote. Both cases are worth reading. Essentially, the city council member was arguing that any conflict of interest was protected by his First Amendment rights. While the analysis by the US Supreme Court was a bit unusual, relying on a historical perspective of the First Amendment, certainly the conclusion that there was no such protection seems correct.

Cell Towers

An interesting new case was handed down by the District Court for the Middle District of Tennessee early in January of this year, American Towers Inc. v Wilson County, 2014 WL 28953 (MD Tn Jan 2, 2014). This is an interesting application of the Federal Telecommunications Act (FTCA) and is certainly illustrative of the difficulties that a local zoning board can get into if it doesn’t pay attention to the requirements of the federal statute. The decision must be in writing, there must be substantial evidence supporting it, there cannot be any unreasonable delay, and the decision must not amount to a total prohibition of service. The zoning board lost on every issue.

The Sixth Circuit has addressed the “in writing” requirement: to satisfy the TCA’s “in writing” requirement, a local government’s denial must “(1) be separate from the written record; (2) describe the reasons for the denial; and (3) contain a sufficient explanation of the reasons for the denial to allow a reviewing court to evaluate the evidence in the record that supports those reasons.” New Par v. City of Saginaw, 301 F.3d 390, 395–96 (6th Cir. 2002). In this case, there were two applications to the board; in the first, the Zoning Board circled “Relief Denied” on the front of [the] Application, explaining in full that its decision was “due to noncompliance of property, multiple uses on site,” and in the second, the Zoning Board denied without prejudice “based on ongoing litigations [sic] and negotiations with an alternate site.” Frankly none of these reasons are explained with any degree of specificity sufficient to allow someone to understand what was really going on. And the second denial, based on “ongoing litigation,” seems specious.

By the way, this observation that the board does not act on pending applications when there is litigation ongoing is referenced throughout the opinion. The trial court notes that there was no documentation presented concerning this “policy” of the board. Probably what was going on here however is a fairly well documented Tennessee procedure relating to the common law writ of certiorari. Once an appeal has been taken from a decision of a lower tribunal, and the writ of certiorari has issued, under Tennessee law, there should be no further proceedings before the administrative tribunal. As Justice Koch explained in Stone Man v Rutherford County Regional Planning Commission, “proceeding simultaneously in both the administrative and judicial forums on the same matter is fraught with the dangers of inconsistency and duplication of effort.” So the zoning board policy of not considering an application once litigation has begun is rooted in a fundamental Tennessee jurisprudential rule. However, that Tennessee rule would seemingly have nothing to do with federal litigation under the FTCA.

In any event, the court concludes that the written decision lacks sufficient specificity under the terms of the FTCA. Furthermore, while the county relied on the meeting minutes and hearing transcripts, neither of those were separate from the record. As the court indicated, “the hearing transcripts and meeting minutes are not sufficiently separate because the Court cannot discern after studying them the arguments the Zoning Board and Planning Commission relied on as opposed to the arguments those bodies found unavailing.”

Furthermore, there is no substantial evidence presented to the board. “The legal problem for Wilson County—and the reason the stated worries about the tower’s impact on the [nearby] school are not substantial evidence that can support the county’s denials — is that health concerns are an impermissible ground of denial under the FTCA. See 47 U.S.C. § 332(c)(7)(B)(iv) (No State or local government or instrumentality thereof may regulate the placement, construction, and modification of personal wireless service facilities on the basis of the environmental effects of radio frequency emissions to the extent that such facilities comply with the Commission’s regulations concerning such emissions.)”

The other reasons to deny the application relied on nothing more than conjecture and speculation. “While the Sixth Circuit has not said that lay opinion evidence may never satisfy the substantial-evidence requirement, it has rejected similar lay-opinion testimony at least twice.” The board did hear evidence regarding the non-conforming nature of the use on the property. This issue seems a bit murky: the court was not very specific about the exact nature of the non-conforming aspect of the property. However, evidently the difficulty could be resolved by a simple subdivision, which is been denied by the planning commission even though technically compliant with the local regulations. The court had little sympathy for the county’s argument that the subdivision was turned down because the cell tower use had not yet been approved by the zoning board. This amounted to a Catch-22 in the court found this again a violation of the act.

Regarding the alleged prohibition of cell coverage, the court found that the applicant had demonstrated that the area in question had four cell coverage and rejected lay opinion tending to prove the opposite. Again, without some expertise, lay testimony about matters of engineering expertise is unavailing in state or federal court.

Finally, with regard to unreasonable delay, the FCC has previously ruled that in an application such as this one hundred and 50 days is a reasonable time frame within which to make a decision. “In addition to the fact that the county’s pending litigation rationale finds no support in the FTCA, it also finds no support in Wilson
County’s own policies or regulations, as discussed above. As a result, the Court grants summary judgment to ATI on its claim that Wilson County’s delays in processing ATI’s applications violate the FTCA.”

The court ordered Wilson County to immediately grant the application and all approvals necessary to allow ATI to construct the proposed tower. The county was also ordered to cease all attempts to prevent ATI from subdividing the proposed site.

Finally, the court considered whether the zoning board’s actions were within its authority under Tennessee state law and concluded that they were not. The issue was whether the zoning board lacked authority under Tennessee law to deny or defer the applications due to pending litigation. The applications seemed clearly to meet the requirements of Wilson County’s zoning ordinance and the county’s practice of not considering matters subject to pending litigation found no support in the zoning ordinance. The court concluded that the Zoning Board and Planning Commission exceeded their authority because they did more than simply determine whether the requested use complied with Wilson County’s zoning laws. However, as I mentioned above, this doctrine concerning pending litigation is not a local matter; it is the policy of the state to ensure judicial economy by not having both administrative and judicial proceedings concerning the same subject matter continuing at the same time. Under the common law writ of certiorari here in Tennessee, most likely a local court would be sympathetic with the zoning board’s position. However, it certainly should be emphatically noted that clearly these applications were denied based on something other than the existing zoning regulations. It would make any difference than that the zoning board did not consider the second application because of the pending litigation doctrine; the fact of the matter is that the applications met the requirements of the local regulations, should been granted, and the District Court here clearly overturned the zoning board decision in a manner which was consistent not only with the FTCA but also with Tennessee state law. To put it another way, the zoning board and the planning commission here both acted arbitrarily and capriciously in denying these applications. Under Tennessee state law, there decisions it should have been reversed regardless of the pending legislation doctrine.

When does a lease amount to a subdivision?

An interesting question that comes up from time to time is whether a cell tower lease or a lease for a billboard creates a new lot, with the attendant issues of whether subdivision approval must be obtained and the local zoning regulations met. In a recent case out of Maine, Horton v Town of Casco, 2013 WL 6685140 (Me. December 19, 2013), the court reviewed this issue in the context of a cell phone tower and concluded that the lease did not create a new lot, did not have to comply with the subdivision regulations, and that the zoning regulations were met based on the larger lot within which the lease was granted. The Maine court indicated that while a lease might create a lot., the legal interest thereby transferred had to be of “sufficient dignity” to create a subdivision. The court held that it is the nature of the transferred interests, not the type of contract or instrument facilitating the transfer that determines whether a new lot is created.

Citing an earlier case where campsites were rented for a limited period of time, and distinguishing it from a another precedent where timeshares for parking recreational vehicles (for an almost indefinite fee interest), the court held that since the cell carrier did not have exclusive rights to the leased property, and that the right it did have was for a finite period, the legal interest was more a license and not sufficient to create a new lot.

The Tennessee courts have not addressed this specific issue related to cell towers, billboards, and other such specific uses of property typically associated with a leasehold interest. However, the Tennessee Court of Appeals has had occasion to review the issue of whether a leasehold interest of whatever nature is sufficient to invoke the requirements of the state subdivision regulations.  In City of Church Hill v Taylor, 1996 WL 605247 (Tenn. App. 1996), the appellate court upheld the decision of the trial court finding that there was a subdivision of land for the purposes of the Tennessee enabling statutes only when property is sold and not when sites are leased. In this case, the leasehold interests were lots for the placement of manufactured housing. “We believe the Trial Judge was correct in employing such a construction. In so finding, we recognize that the problems sought to be alleviated would result as much from leasing trailer sites as from selling them. We conclude, however, that the Planning Commission's remedy lies with the Legislature, and not with the courts.” There has been no change in the definitions since the time of this decision.

Obviously, that still leaves the issue of zoning regulations, but assuming that the use is legal, that is permitted within the zoning district, for the most part bulk regulations should be of little difficulty. At the time of the decision in Taylor, I discussed its impact with a number of my planning colleagues. The most part, they did not seem too concerned about the relative importance of this case; my perspective has been and continues to be that this is a fairly major loophole that someday ought to be closed.

A brief legislative history of variances in Tennessee

Several months ago, I mentioned that I would like to start a series of notes relating to the Tennessee Municipal Zoning Enabling Statutes,  Tenn. Code Ann. §13-7-201 et seq., and compared those provisions to the Standard State Zoning Enabling Act, drafted by a Blue Ribbon Committee under the auspices of the US Department of Commerce in the mid-20s. I haven’t gotten back to that until now but I thought we might begin with the difference between the two zoning enabling provisions which has always fascinated me (and I might add, almost no one else), the language relating to variances as a power of the Board of Zoning Appeals.

The Standard State Zoning Enabling Act has a specific provision relating to variances which provides in §7, that the zoning board has the power “to authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.” The Standard State Zoning Enabling Act was adopted in some form or another by a majority of the states across the country, and Tennessee adopted a modified version in 1935. As a result, many of the states across the country have a variance provision that reads similarly to the one quoted above.

However, the Tennessee version is quite different. It is much more particular about the special conditions which must be demonstrated in order to get a variance. Part of the reason for the greater specificity I submit has to do with the experience in New York City, where in the late 20s, zoning variances were being sold by the zoning board to overzealous developers. Part of the reason for greater specificity was to make it harder for the zoning board to grant a variance for what amounted to no good reason whatsoever. I discussed this difficulty in my book, Tennessee Zoning Boards: Practice and Procedure, third Addition 2012, GadsHill Press, at 247-252.

But the concern regarding overreaching by zoning boards still begs the question: why did Alfred Bettman draft the Tennessee version with the much more specific details? What prompted a more specific provision in this particular case (Tennessee)? The Tennessee version ( Tenn. Code Ann. §13-7-207 (3)) reads as follows:

The board of appeals has the power to: 

(3) Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property at the time of the enactment of the zoning regulation, or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulation enacted under this part and part 3 of this chapter would result in peculiar and exceptional practical difficulties to or exception or undue hardship upon the owner of such property, authorize, upon an appeal relating to the property, a variance from such strict application so as to relieve such difficulties or hardship; provided, that such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zone plan and zoning ordinance.

Well, as it turns out, there is a specific reason for the inclusion of this language. Alfred Bettman submitted his original drafts of the legislation by letter on November 6, 1934 to Mr. Gerald Gimre, who was at the time, a consultant for the State Planning Board of Tennessee, with offices in the Nashville Trust Building here in town. Bettman enclosed with that letter six different pieces of legislation including municipal planning, zoning, and subdivision regulations, regional zoning and subdivision regulations, and state and regional planning legislation.

I have copies of much of his correspondence and draft legislation relating to Tennessee during this time period. And while I can’t be certain, I have in these materials a proposed legislative enactment entitled “Municipal Zoning Act” which has a very short caption (the caption was significantly strengthened later as the time for filing with the Tennessee General Assembly approached), and I believe this to be the first draft of what was to become the Tennessee zoning enabling legislation for municipalities. Section 5 deals with the zoning board and reads as follows:

The chief legislative body may create a zoning Board of appeals, specifying the number and terms of members, mode of appointment and other details relating to the organization and procedure of such board and may authorize such board to administer the details of the application of the zoning ordinance and regulations in accordance with the general rules set forth in the zoning ordinance, including the power to hear and determine appeals from the grant or refusal of building permits and to permit exceptions to or variances from the zoning regulations in the classes of cases or situations and in accordance with the principles, conditions and procedures specified in the zoning ordinance.

As you can see, this leaves the details up to the local legislative body. And while I don’t know that this would have created any difficulties here in Tennessee, there was an attorney in Memphis who felt that the language should be stronger. The attorney was Edward B. Klewer, evidently practicing on his own at this point, but he was certainly an attorney who had a fine career. He appeared in front of the Tennessee Supreme Court on a number of occasions, including Forrester v City of Memphis, 159 Tenn. 16, 15 S.W. 2d 739 (Tenn. 1929), a case involving the jurisdiction and taxing abilities of the city of Memphis. He evidently worked with and represented the City of Memphis on a number of occasions. I have seen some references indicating that he was a Judge at some point although I have not been able to confirm that.

In any event, Mr. Klewer wrote to the State Planning Commission on December 20, 1934, making several suggestions. Of particular interest to us, are the suggestions relating to the municipal zoning board. He says:

Section 5 provides for the creation of a Board of Appeals. Under our Constitution and rulings of our Supreme Court I believe it would be advisable to have the delegation of the power of the board come directly from the legislature rather than from the chief legislative body. In this connection I rather favor an adaptation of the applicable provisions of the enabling act suggested by Messrs. Bassett & Williams of New York. The Memphis enabling act, Private Act of 1925, Chapter 428, authorizing the creation of a Board of Adjustment, follows to some extent the New York form, but, of course, since it was written improvements in text and phraseology have been made in like enabling acts and the wording of the Memphis act can be improved. However, the principal point is that, in my opinion, the jurisdiction and powers of the board should come directly from the legislature rather than from the legislative body of the city through a delegation of powers from the legislature to create a board and to define its powers and jurisdiction.

It is clear that Mr. Klewer believed that the powers of the board should come directly from the state legislature, and that they should be more specific in nature. In fact, as he mentions in the letter, the Memphis Private Act of 1925 does both these things. The specific language used in the Memphis Private Act

The Board of Adjustment shall have the following powers: 

3.   In passing upon appeals, where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance, to vary or modify the application of any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.

As you can see, this language is closer to the variance provision of the Standard State Zoning Enabling Act, although the use of the terms “practical difficulties” in addition to “unnecessary hardship” is actually a newer phraseology.  Notice also the last phrase, “… so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.” In the Bettman version which we will look at in one moment, instead of being affirmative guidelines, these become negative criteria for gauging the application of a variance.

It is also interesting to note that Mr. Klewer mentions in his letter that he is working on a proposed private act for zoning in Shelby County. Interestingly, that private act was adopted in 1935 as Chapter 625 of the Tennessee Private Acts of 1935. Section 6 of that Shelby County zoning enabling statute provides for variances, and it is nearly identical to the 1925 private act adopted to govern zoning in Memphis. That is to say, the Shelby County legislation passed by private act in 1935 is much less specific with regard to the factors which must be demonstrated in order to obtain a variance than the legislation written by Alfred Bettman and passed into law by the Tennessee General Assembly in that same year, 1935. Most likely, the sponsors of the Shelby County legislation felt that the variance language should be the same in Shelby County as in the City of Memphis. It was not until 1955, pursuant to Chapter 142 of the Tennessee Private Act of 1955 that the variance language was changed to bring it into conformity with the Tennessee Public Zoning Enabling Statutes. Notwithstanding the change in 1955, cases such as Reddoch v Smith, 214 Tenn. 213, 379 S.W. 2d 641 (1964), in which a zoning variance basically granting a change in the use regulations of the zoning district in which the property was located was upheld by the Tennessee Supreme Court, illustrate the dangers of the less specific language adopted in Memphis and Shelby County. In Reddoch, the 1955 amendment changing the variance standards in Memphis and Shelby County was not mentioned even though the change took place almost 10 years before the decision was handed down.

It took very little time to get a response from Bettman concerning Klewer’s suggestions. On December 27, 1934, Bettman sent a revised version of the Municipal Zoning Act to Mr. Gimre. In the letter, he quibbles with Klewer’s suggestion: “I do not quite see why a grant of power to the municipal council to define the powers of the board should be less constitutional [then having the powers of the board derived directly from the legislature]; but in order not to delay matters … I have accepted Mr. Klewer’s suggestion in this respect, and have revised this bill accordingly.

This time , we can be sure about what draft of the bill he was referring to, because it is immediately behind the letter and has a hand written entry on the upper right which says “Dec 27 encl.” This new draft has a much longer caption but more importantly for our purposes, §5 has been significantly expanded and now contains the Bettman variance language as follows:

The board of appeals shall have the following powers:

3. Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property at the time of the enactment of the zoning regulation, or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulation enacted under this act would result in peculiar and exceptional practical difficulties to or exceptional or undue hardship upon the owner of such property, to authorize, upon an appeal relating to said property, a variance from such strict application so as to relieve such difficulties or hardship, provided such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zoning plan and zoning ordinance.

As I have said many times, this language is most specific, and it makes it difficult to obtain a variance because the language is so specific and requires some exceptional physical feature of the property to justify granting relief. In my experience, it is quite difficult to find some exceptional physical feature of the property which can serve to justify issuance of a variance by the zoning board. In fact, in cases here in Tennessee where this language applies, it is very difficult for a zoning board which grants a variance to be upheld. Perhaps the leading case in Tennessee is McClurkan v Metro BZA, 565 SW 2d 495 (Tenn. App. 1977). The Tennessee Court of Appeals emphasizes in that case the language quoted above which requires some physical feature of the property to be of paramount concern in determining whether a variance should issue.

This specificity in the enabling legislation may not be a bad thing; unbridled discretion to grant variances certainly can have the impact of creating in effect spot zones and undermining the efficacy of the goals of the ordinance itself. In effect, that was the problem in New York City in the mid to late 1920s.

In any event, Mr. Klewer’s suggestion certainly caused the inclusion of the much more specific language for variances drafted by Alfred Bettman. The language was included in the legislation is adopted by the Tennessee General Assembly, Chapter 44 of the Tennessee Public Acts of 1935 and  remains in the Tennessee Municipal Zoning Enabling Statutes to this day. See Tenn. Code Ann. §13-7-207 (3).

I thought perhaps I could find out some additional information about Edward Klewer, but unfortunately he passed away shortly after his correspondence with the State Planning Department. He died on May 18, 1936 at age 49. In running a quick Internet search, I saw that his wife created a scholarship in his name at Rhodes College in Memphis but I have very little other information relating to him. I did find a photograph at this location on the net.  Take a look at page 7, lower left; the caption Indicates that Mr. Klewer is standing at the far right on the first row.