The Writ of Cert and "Something More"

I continue to struggle with the concept of when the 60 days for an appeal from a local government agency decision begins to run under the terms of the common law writ of certiorari here in Tennessee. “The case law . . .  certainly shows that something more than simply a vote taking place is required before a judgment or order will be considered as having been entered pursuant to [the certiorari statute].” Grigsby v City of Plainview, 194 S.W. 3d 408 (Tenn. App. 2005).

But what is that “something more” and what form must it take? Most attorneys would think in terms of some writing, but in these days of Internet connectivity and video on demand, could this “enduring evidence of the judicial act of rendition of judgment” (Carter Nashville Board of Zoning Appeals, 377 S.W.2d 914, 916 (Tenn. 1964)) be something much more substantial?

Many local government agencies now record their proceedings on video and post the video to the Internet for anyone to see. Could the process of posting a video recording of the local agency hearing be the “something more” required by the statute and Tennessee case law? A video recording is certainly not as ephemeral as the oral announcement (rendition) of the decision. Video recordings, whether stored on tape, disk, hard drive (local or in the cloud) are all enduring forms of evidence. Assuming that there is no doubt that the government itself posted the video to the Internet, the video recording is certainly better than many other forms of recordation.

For example, the well-known Advanced Sales v Wilson County Board of Zoning Appeals (1999 WL 336305, Tenn. App. May 28, 1999) case involved a situation where the 60 days was started when the zoning board secretary circled the words “Relief Denied” on a rudimentary form and signed on a line immediately below the circle. The form was not sent to anyone, including the applicant, it did not list who voted for and against the proposal, and it did not include any rationale for the denial of the application. Yet, the Court of Appeals concluded that this rudimentary form was sufficient to begin the 60 day appeals time.

Contrast that with a video recording of the hearing before the that same zoning board. Anyone watching the recording would know who made the motion, who seconded the motion, the reasons for the motion, the votes in favor the motion, the votes against the motion, and the outcome of the case. Certainly, when contrasting these two methods of kickstarting the appeals process, the video recording offers far more information for the party considering an appeal so as to make an informed decision as to whether an appeal is likely to be successful. In addition, it would seem far more difficult to fake or somehow falsify such a video recording; assuming that the viewer is familiar with the particular board or commission involved, he or she would presumably immediately know something was amiss if the wrong people showed up on the video recording.

Consider also that while our hypothetical video recording does not necessarily require any tangible format, neither does the rudimentary form in Advanced Sales. For example, a staff member the morning following the decision, could have arrived at his or her office, fired up the computer, and filled in a similar form electronically stored on the computer. The same information as was placed on the tangible paper form in Advanced Sales could be filled in on the electronic version on the computer, and then uploaded to the local government website without ever printing it out and without it ever taking tangible form. The rudimentary form would simply be a collection of electronic bits of data. Even the signature of the board secretary could be electronically affixed. Indeed, here in Nashville, the Metro Board of Zoning Appeals uses a facsimile stamp to manually affix the signatures of both the board chair and board secretary. This is specifically contemplated by the board’s rules. An electronic version is not much different.

In fact, a number of local government agencies now republish their agenda a day or two after the hearings, indicating briefly the results in the cases which were determined by the board and then upload those to the Internet. I would assume that these agenda revisions with the results of each case would satisfy the “something more” of Advanced Sales/Grigsby, and if that is the case, then it seems odd that a full recording of the proceedings of the local government agency would not fulfill the same function.

All of these ruminations bring us around to the same conclusion as was forced by the result in Advanced Sales: any appeal by way of the common law writ of certiorari from a local government decision should be filed within 60 days of the meeting where the decision was made. Simply put, if you wait beyond the 60 days from the date of the meeting where the decision was made, you run the risk of missing the all-important 60 day window of opportunity for the appeal. Filing the appeal outside of those 60 days, deprives the court of subject matter jurisdiction.  “Failure to file a writ within this period precludes review of such decisions by the courts.” Johnson v. Metropolitan Gov't for Nashville Davidson County, 54S.W.3d 772, 774 (Tenn. Ct. App.2001).

Finally, just to illustrate that this discussion is not purely hypothetical, Metro Nashville makes a video recording of Council meetings, zoning board meetings, historic zoning commission meetings, planning commission meetings, and various other local boards and commissions. Most of these video recordings are posted on YouTube, where Metro Nashville maintains its own channel, usually the following day. To take the case of the Metro Board of Zoning Appeals, the video would be posted on the Friday following the Thursday afternoon hearing; however, the written order from the zoning board is usually prepared within a few days after the hearing, usually the Monday following the Thursday hearing. If the video recording is sufficient to start the 60 day appeals time running, and the petitioner files 60 days after the written order is prepared the following week, the petition may be filed too late.

Again, when filing any appeal under the common law writ of certiorari, file within 60 days from the date of the hearing where the decision was announced. Failure to follow that rule of thumb can result in dismissal of the petition for lack of subject matter jurisdiction.

Board rules that applicant can't return for 6 months

An interesting issue came up in a recent case from North Dakota. That case, Dahm v. Stark County County Bd. Of County Com’rs, 841 NW2d 416 (ND Dec 19,2013), involved an application for a rezoning combined with a subdivision plat. Because the rezoning was denied, the applicant sued the county making a number of allegations, including arbitrary and capricious action, conflict of interest, and an erroneous ruling precluding admission of additional testimony. Similar arguments are seen in many land use cases.

The interesting thing to me about this case was that the County after denying the application, also decided that it did not want to hear from the applicant regarding this particular property for at least another six months, and included language to that effect in denying the application. The North Dakota Supreme Court found nothing untoward about this ruling.

There are a number of local boards and commissions here in middle Tennessee which have rules precluding the submission of the same or a substantially similar application for a period of sometimes 6, sometimes 12 months once the original application has been denied. Many years ago, I wrote in a similar provision for the Metro Board of Zoning Appeals, in an effort to stop serial applications for the same or substantially similar relief. At the time, the board had several applications where the same applicant would attempt to get back on the agenda nearly every month by making some minor change in the proposed application. Obviously, this slows down the ability of the board to handle the cases coming before it, and is a total waste of time from the board’s perspective since having denied it originally, minor changes in the proposal are unlikely to warrant reconsideration.

I have not seen those rules challenged either here in Tennessee, or elsewhere. And of course, this case is somewhat different: the North Dakota ruling did not have to do with a standing rule but was specifically implemented in this particular instance because the applicant had been to the County board for 3 months in a row and the board was simply tired of hearing the application, especially given the fact that several requests for additional information had been made but not complied with by the developer.

In any event, the North Dakota Supreme Court upheld the six-month ban.

The decision to implement a six-month appearance restriction was also not arbitrary, capricious, or unreasonable. In making its decision, the County Board noted that Dahm had presented the Duck Creek Estates project three months in a row without adequately resolving the issues of roads, sewage, water, and population density. As the district court reasoned, "the time and effort expended by the Stark County Zoning Board, the City and County Planner, and by the Stark County Commission persuades the Court that there was no violation of Stark County's authority and obligation to regulate land use . . . by their decision to impose the six month prohibition." Here, given the repeated attempts to re-zone and the failure to make the requisite adjustments, it was not unreasonable for the County Board to implement a six-month wait period.

Certainly, the North Dakota Court relied on the specific facts in this case, which would not be present given the text of the 6 month rules here in Tennessee. But I tend to think that our courts would react similarly: that the applicant had received a hearing and lost, and could reapply 6 months later and that as a result, the rule precluding submission of the same or a similar request within that timeframe was not arbitrary and capricious or violative of the applicant’s rights in any way. These rules seem to make good sense, and they don’t preclude the applicant from ever coming back, they just delay the return for a rather short period of time.