Monday, October 20, 2014

CBS Outdoor

The recent decision by the Tennessee Court of Appeals in Metro Nashville v Metro Board of Zoning Appeals & CBS Outdoor, 2014 WL 4364852 (Tenn App Sept 3, 2014), presents a considerable difficulty for almost every party who appears before any board of zoning appeals in the state of Tennessee. The holding of the Court of Appeals is that the local government may, presumably without notice in any manner whatsoever to the applicant, appeal any decision of its Board of Zoning Appeals and challenge whether that decision was appropriate. This means that even though there may not be any opposition whatsoever appearing before the Board of Zoning Appeals, the applicant needs to ensure that there is a sufficient evidentiary basis for any decision of the Board which grants the relief sought. Just because no one appears in opposition does not mean that at some point a lawsuit won’t be filed by the local government itself challenging the decision of its own zoning board.

The decision in CBS Outdoor leaves a number of questions unanswered. Does the local government need to present some proof to the trial court concerning standing? Should the local government appear before the zoning board? Who makes the appearance? Assuming that the local government did not make an appearance before the zoning board, there would be no evidence of standing in the record, and assuming that the respondent denied the standing allegations in the petition for writ of certiorari, there would be no clear evidence of any harm to the local government without such proof. On the other hand, perhaps the Court of Appeals is signaling that the local government need not make any other showing than perhaps a reference to a local ordinance which it contends was not followed. Surely the ordinance itself would have to be introduced however before the trial court, and in the absence of a stipulation from respondent’s counsel, it’s not entirely clear how that takes place either. The trial court can take judicial notice of local zoning regulations upon notice (Rule 202 (b) of the Tennessee Rules of Evidence) but in a  certiorari proceeding  all the evidence should have been presented to the zoning board; allowing additional evidence, even the zoning regulations, arguably allows the court to consider factors which were not considered by the zoning board.

On the other hand, it has always seemed to me that local governments should have the ability to appeal under certain circumstances. The most obvious is where the local government owns a parcel property in the immediate vicinity of the proposal. In such a case, the local government is just like any other neighbor, and can appear before the zoning board opposing the application and appeal the decision on to a reviewing court. In a sense, the well-known City of Brentwood v Metro Board of Zoning Appeals, 149 S.W. 3d 49 (Tenn. App. 2004) represents this idea. Although Brentwood itself did not own property in the immediate vicinity, it was in that case an immediately adjacent neighbor, concerned about the construction of the sign which was at issue in that case.

Secondly, there are certainly times when local zoning boards make decisions which are so far beyond their ordinary activities that the decisions may need to be called into question. Two quick examples: first, where the zoning board grants a variance in the building code provisions. The zoning board has no authority over the building code, and should not be considering building code issues in its hearings. Secondly, if the zoning board violates some federally protected right or activity, litigation to protect those citizens whose rights are in issue may be necessary. For example, religious discrimination might be a basis for such an appeal.

But where the zoning board is exercising powers which are normally within its jurisdictional ken, such as considering variances, conditional use permits (special exceptions), or making determinations concerning non-conforming properties, it would seem unnecessary for the local government to have the right to sue its own zoning board and challenge its decision in a trial court. In fact, one wonders why we bother with zoning boards at all if the local government is free to appeal any decision they issue.  In the CBS Outdoor case, there are no special issues. Metro contends that the zoning board decided a non-conforming property case erroneously. The Metro board of zoning appeals probably hears something in the vicinity of 50 to 75 such cases each year. This kind of case is certainly not anything unusual. It does not seem therefore to afford a basis for an appeal by the local government of its own zoning board’s decision.

Which brings us back to the main issue here: how to best protect against such an appeal. Once more, the best protection is to make sure that the record contains sufficient evidence to justify the decision, and that the order or minute entry of the board reflects findings of fact and conclusions of law which are consistent with the board’s decision. Customarily, I file a fairly lengthy letter with the zoning board approximately one week before the hearing date, detailing why my client complies (or in the case of opposition, why the applicant does not comply) with the requirements for the application. Assuming that the zoning board rules in my favor, I usually request permission to draft the minute entry and/or order of the board which will closely follow my letter. Generally speaking, I have found that it is quite difficult for anyone appealing such decisions to reverse because the combination of the letter (with the evidence), and the order (with findings of fact and conclusions of law) is usually very persuasive to the trial court.

One final note. Given the recent decision by the Tennessee Supreme Court concerning the manner required for trial courts to grant summary judgment pursuant to Rule 56.04 of the Tennessee Rules of Civil Procedure, Smith v UHS of Lakeside, 2014 WL 3429204 (Tenn. S Ct July 15, 2014), it may be advisable to have the zoning board discuss the order or minute entry prior to adoption. I have for a long time suggested that the zoning board should not have to include a detailed motion in order to grant a particular application. Most of the requirements for relief before zoning board are quite detailed – take a look at the variance requirements under Tenn. Code Ann. § 13-7-207 (3) for example (and those are not all of the requirements) – and as a result any motion which attempts to cover each and every requirement is doomed to failure. Most lawyers or trial court could not do it. I know that I could not do it off the top of my head.

However, let me suggest that in the case of a variance, the motion made to grant a variance should include a reference to the exceptional physical feature of the property which the moving member of the board thinks is determinative. The exceptional physical feature of the property is the most important component of a variance, and if the moving member gives the staff or the lawyer representing the applicant that basic piece of information, it would seem to me that most courts would not think it is a logical for the board to allow the staff or the prevailing attorney to draft the order based on that information. Certainly, a good deal of additional information would have to be included, but as I say, the most important part of a variance application is the finding of an exceptional physical feature on the property itself.

In a similar manner, with regard to a conditional use permit (otherwise known as a special exception and many other different names), if the moving member clearly indicated that the use of the property in the manner requested was generally consistent with the other uses in the surrounding vicinity, and that any specific requirements for the conditional use had been complied with, once again, I think most reviewing courts would then allow the staff or the prevailing attorney to fill in the other more minor details of the order or minute entry.

Similarly, on a motion to deny the application, in the case of a variance, the motion might say that there is no exceptional physical feature on the property and/or that there is no hardship suffered by the applicant; and in the case of a conditional use permit, that the use of the property as proposed is not consistent with the other uses in the general vicinity and did not meet all of the requirements. In the case of a denial of a conditional use permit, it would behoove the moving member to specifically identify which of the specific requirements was not complied with. If none of them were complied with then simply say that.

The idea, as you can tell, is to limit the amount of information which must be contained in the motion. The complexity of framing a motion to grant a variance or conditional use permit makes doing that successfully on the spur of the moment almost impossible. Alternatively, if the attorney for the prevailing side so desires, language for suggested motion could be included with the letter justifying the appeal. I have not done this myself in the past, but I have seen it done on several occasions. I would suggest that any such suggested language should be fairly simple and straightforward without the complexity that we lawyers often interject. A sample of such language might be as follows:

I’ll make a motion to approve the variance to permit a reduction in the required sideyard, down to [x number of feet]. In this case, the property is exceptionally narrow when compared to other properties and this causes undue hardship because the applicant can’t use his property in a manner similar to other owners in the same area. This condition was not created by the applicant or others after the adoption of the zoning regulations, the variance won’t cause substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.

Let me add that I’ve never seen a motion that would be as good as this one. Notice that it is fairly lengthy even though I have kept it as short as I think reasonably possible. It might be advisable to add that the hardship is not solely based on pecuniary considerations and that the size of the variance is no more than necessary to cure the hardship. But unless the members of the zoning board are provided with a sample order such as this for every case, it would be very difficult for the members of the board to remember all of this, especially if the board had a docket of 10 to 20 cases, only some of which are variances.

Frankly, my experience is that most trial courts are so overjoyed to see anything remotely resembling an order or minute entry which addresses the specifics of a particular case that it is usually sufficient to persuade the court that the board’s decision, to grant or deny, will be upheld.