Wednesday, August 13, 2014

Wright v Shelbyville, Rd 3

There were two interesting land use cases decided by trial courts in Tennessee in the latter part of July. Today I’ll tackle Wright v City of Shelbyville and next week I’ll add a short summary of the second case.

The Shelbyville case has been going on for quite some time. In 2009, the Tennessee Court of Appeals reviewed a zoning change relating to this property and concluded that there had been procedural errors which necessitated invalidation of the zoning change. In 2012, the court overturned a trial court decision concluding that the quarry application for conditional use permit was barred by the doctrine of res judicata.

The case was again heard in trial court this past July, and Judge Ben Cantrell heard the case. Judge Cantrell has heard many of these zoning cases, having spent a number of years on the Davidson County Chancery Court, where there are always a number of zoning cases pending, and then of course during his tenure on the Tennessee Court of Appeals.

As always in these conditional use/special exception cases, the issue is whether or not there was any evidence before the Board of Zoning Appeals to justify the decision. Very often in conditional use/special exception cases, the only evidence offered against the proposal is lay testimony by owners of neighboring property. Ordinarily these kinds of witnesses don’t add much to the proceedings, because there lay opinions are usually not cognizable by the court. There were evidently several expert witnesses retained to testify in favor of the city. The applicant did argue that the performance standard should not be considered by the court, evidently contending that noise, vibration, and blasting regulations were not part of the approval process. From my point of view, I always urge my clients to demonstrate compliance with all such matters. Obviously, this has to be couched in terms of an opinion from an expert, but it seems important to assure the zoning board as well as any reviewing court that the performance standards can be observed in a meaningful way.

This case was complicated by two other factors. The local planning commission also reviewed the application as a site plan, and in addition, there is already an operating quarry not far away from the proposed location.

A number of jurisdictions utilize this two-step process of having a planning commission review ostensibly for site plan compliance, but it has never been very clear to me why that is necessary. From my point of view, a conditional use/special exception basically combines site plan review with consideration of the proposed land use. As a result, the zoning board should be considering the site plan as well as the use and the planning commission consideration seems somewhat superfluous.

In this case, the situation is even a little more interesting in that the members of the zoning board evidently are mostly also members of the planning commission. The planning commission approved the site plan, but then the zoning board turned down the use. It might be better to allow the zoning board under the circumstances to make the final decision with a recommendation from the planning commission, rather than having to go through two separate hearings on issues which appear to be closely related.

In addition, the operation of another quarry located reasonably closely to the proposed location meant that the impact of the new location might not be as significant. I will not take each factor in turn here, but a number of the criteria used by the local zoning board involved trying to ensure that the proposed activity was compatible with other land uses in the general vicinity. The proof shows that the quarry will be located in the back of the industrial park. But “the closest property where daily activities are conducted is the other quarry. Most of the surrounding properties are all zoned for heavy industry.”

Judge Cantrell did note that there were some residential uses within 2000 feet or so. Some of these residential neighbors testified before the zoning board, mainly about violations of the operation standards at the existing quarry. Because of the heavy industrial uses generally in that area, as well as the fact that violations of the regulations by one operator should not be held against another, the court concluded that general compatibility was established.

These types of cases are always difficult and my guess is that the city will appeal this case up to the Tennessee Court of Appeals.

One final interesting note in this matter is the fact that the chairman of the zoning board announced that he had a conflict of interest but that he would conduct the hearing but not participate in any discussion or voting. The trial court does not discuss this issue so I assume that he was not broached by either of the parties. There was another member who announced that his wife owned property in the general vicinity and, again, it’s unclear whether he recused himself or simply participated. My feeling is that board members who have a conflict should simply be excused from the hearing and not participate in any way. I’m not sure that this is legally required, but it certainly seems to me to likely prevent difficulties on down the road with criticisms possibly leveled at the board chair for the manner of conducting the hearing. In this case, as far as I know, there were no such complaints, but why take the risk?

In any event, this is a very interesting case and one which certainly bears some study. A copy of the case is available here.