The city can sue its own zoning board!

With the decision by the Tennessee Supreme Court in Metro Nashville v Metro Board of Zoning Appeals and CBS Outdoor, the next question to ask, if you are seeking some type of relief from a local zoning board, or if you’re opposed to the relief being sought, is how to minimize or maximize the possibility that the government will sue the zoning board. It is really not clear what rules apply under these circumstances.

Let’s assume for the moment that you are the successful applicant for a special exception or you have successfully argued that your property is legally non-conforming. After the zoning board memorializes its decision either by minute entry or some other separate writing, anyone wishing to file an appeal must do so within 60 days after the writing is adopted by the board. Until those 60 days have expired, there is no guarantee that the relief which has been granted by the board will not be challenged and overturned on appeal.

Certainly, the standard tips are always worth following: get the permission of the board to prepare the minute entry or other writing so as to maximize the chances that if the city lawyers were to look at it, they would conclude that the chances of successfully challenging the decision are remote. Object to the standing of the city (or anyone else); I usually include a boilerplate standing objection in a letter to the board explaining why the relief is necessary. It’s not clear that the local government has to demonstrate standing of any type, but until the standing requirements has been clearly ruled out as inapplicable to local governments, it’s worth raising the objection.

Finally, the arguments in the CBS Outdoor case from the perspective of the government , seem to be that the government needed the ability to challenge  zoning board decisions because otherwise the board’s actions might lead to some type of legal liability, or be so far from accepted land use and zoning practice, as to be totally unlawful. Certainly, anyone who has spent any significant time with the zoning board will know that many of the members of such boards are unwilling to follow some of the legal rules established for relief to be granted. However, if the concern is potential legal liability or outlandish conduct, then it would also behoove the successful applicant to demonstrate that the type of relief granted will not cause any type of legal liability and is not unusual but rather is a straightforward application of land use principles to particular factual matter.

To some extent, these arguments were made in the CBS Outdoor case and they proved to be unavailing. However, one part of the equation may have been the land use involved: outdoor advertising is not a favorite activity of many people, and under such circumstances, challenges may be made and decisions rendered which might not apply under other circumstances.

As time goes along, we will perhaps get some feel for how local governments choose to use this newfound power. Portrayal of the application as a garden-variety zoning case may help ensure that at least the city doesn’t appeal, even if the neighbors may choose to do so themselves.

And if you are working with the neighbors, don’t forget that contacting the local government attorney, insisting that the application is an oddball an extreme perversion of the board’s powers may put you in a position where the city winds up suing its own zoning board and may give you a better chance of prevailing on the merits. In any event, if there are two challengers to the decision, there will certainly be more ideas about the best approach and frequently, the local government may be accorded some deference in its challenge to its zoning board’s decision.

Perhaps 2016 will bring us some further guidance in this area.

Don't Paint Your House Lime When Asking for a Zoning Change

A recent zoning change application in Chattanooga illustrates how not to go about trying to get a zoning change adopted in Tennessee. A Chattanooga physician, asking to change the zoning on some property he owned from residential to commercial, became upset with his neighbor's opposition to the proposal. So, instead of waiting until after the zoning issue was decided, he immediately painted his house "a hint of lime" which as you might imagine had the effect of making the neighbors opposition even stronger.

Since the position made the color change prior to the vote before the Chattanooga city Council, the Council interpreted his actions as meaning that he was not very concerned about the overall welfare of the local neighborhood and proceeded to vote down the proposed zoning change. This is just not a very smart way to go about asking for a zoning change anywhere. Working with the neighborhood, and trying to find a solution that will work for everyone is almost always better. Take a look at the news article from the Chattanooga paper.

Can a zoning official deny the right to a zoning appeal?

In an interesting case out of North Carolina, an adjoining property owner challenged the local zoning official’s decision granting a permit for residential use. When the zoning official did not place the appeal on the agenda of the local Board of Zoning Appeals, the neighbor file a petition for writ of mandamus seeking to compel the appeal to be placed on the agenda of the board. The trial court issued the mandamus, and the Court of Appeals affirmed. On appeal to the North Carolina Supreme Court, the decision was affirmed.

The zoning official had declined to place the matter before the board of zoning appeals because he felt that the appellant lacks standing to pursue the appeal. The Supreme Court found this unavailing.

The plain language in both the statute and the Ordinance mandates that the zoning officer forward the documents constituting the record to the Board—an act that is ministerial in nature, involving no discretion. Conversely, “[w]hether a party has standing is a question of law.” In light of the ministerial role of the zoning officer in the appeal process, as designated and required by subsection 153A–345(b), we conclude that these officers are not vested with authority to dismiss or foreclose an appeal based upon their legal determination that the appealing party lacks standing. Moreover, we do not believe the statute was intended to permit zoning officers to single-handedly block appeals from their own zoning determinations. The county board of adjustment, not the zoning officer, determines the fate of such an appeal.

Morningstar Marinas/Eaton Ferry, LLC v. Warren Cty., 777 S.E.2d 733, 737 (N.C. 2015).

I come across issues which are similar to this many times in my practice. It is surprising how often a local zoning or building code official apparently believes that the fact that the appellant either has not stated a valid appeal in the opinion of the zoning official, or lacks standing, allows the local official to simply refuse to place the matter on the docket. Although there are not many cases in this area, the Supreme Court of North Carolina illustrates the majority position: the local officials lack discretion to refuse to place the appeal before the appropriate board or commission. Only the board or commission can make the discretionary decision as to whether or not there is standing, and whether or not there is a valid appeal. I have always felt that refusing to permit the appeal to be heard by the zoning board opens up the local zoning official to a lawsuit which clearly ought to be one by the party seeking the appeal. I also wonder under Tennessee law, whether the local zoning official might not be liable for some type of damage award, given that such a refusal most likely would be seen as intentional misconduct for which there may not be any protection under the Governmental Tort Liability Act,  Tenn. Code Ann. § 29-20-101 et seq. Furthermore, there is often a qualified immunity which applies to local governmental officials; however in the case of intentional misconduct, that qualified immunity might fall way and open up a pathway to damages for the plaintiff’s attorney.

So, by way of a conclusion, the best advice is to allow the appeal so that the board of zoning appeals can make the decision as appropriate. In addition, here in Tennessee, members of such boards and commissions are usually absolutely immune from any type of tort liability.

Definition of Single Family Residence

The definition of single-family residential use has over the years been the subject on numerous occasions of judicial scrutiny. The Pennsylvania Commw. Court had occasion recently to revisit this issue and I think maintained what I would call the majority view by upholding a definition which included any number of people living together related by blood, marriage, or adoption, or no more than three people living together as a single housekeeping unit.

Therefore, we reaffirm that a zoning ordinance limiting single-family residential use based on a definition of “family” that permits an unlimited number of persons related by blood, marriage, or adoption to cohabitate in a single-family residence, while restricting the number of unrelated persons who may do so, is not subject to strict scrutiny under the Pennsylvania Constitution and instead should be reviewed to determine if the ordinance has a rational basis.

Schwartz v. Philadelphia Zoning Bd. of Adjustment, 2015 WL 5601248 (Pa. Commw. Ct. Sept. 24, 2015).

The Pennsylvania court properly cited the US Supreme Court decision in  Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974), and the Pennsylvania Supreme Court decision in Appeal of Miller, 511 Pa. 631, 515 A.2d 904, 909 (Pa.1986).

Interestingly, in Pennsylvania, rather than apply a mechanical rule, the Commw. Court examined the record before the board of zoning appeals in order to determine whether the residence of the home treated it as a communal living arrangement or were simply a group of separate individuals (students in this case). The court clearly indicated that to the extent that there were clear communal living arrangements, that the ordinance, as applied, might not be applicable to prevent such use. On the other hand, if the living arrangements were not communal, but were rather separate individuals living in the same structure, as the court found in this case, then the ordinance would be applied is written in the use of the property declared illegal. That was the result of this case.

With the advent of AirBnB and VRBO, issues regarding the definition of single-family residential use have become more more important. The Pennsylvania court seems to take a fairly nuanced approach which is probably more sophisticated than the mechanical approach taken by many courts.

I don’t know of any cases in Tennessee which address this specific issue. There have been several which have come close, but ordinarily, because of a failure of the ordinance to have the required definition at all, the property owner has usually prevailed.

Most zoning ordinances to have a definition. Metro has a fairly typical definition of the term “family:”

An individual, or two or more persons related by blood, marriage or law, or, unless otherwise required by federal or state law, a group of not more than three unrelated persons living together in a dwelling unit. Servants and temporary nonpaying guests having common housekeeping facilities with a family are a part of the family for this code.

I have seen many local ordinances which would restrict the term family to a single person (or any number of related by blood, marriage, or adoption). It seems to me that this is clearly unconstitutional; certainly, any two people who wanted to live together as a single housekeeping unit, whether married or not, should have the right to do so pursuant to the federal (if not the state) Constitution. As a result, if the definition is limited to one person, it outlaws to people living together as though they were married and is in my mind almost certainly unconstitutional.

Hopefully, even though there are a large number of definitions like that across middle Tennessee, the codes enforcement officers likely know better than to bring an action based on such a violation.

Historical Preservation: Interiors

Take a look at an interesting article on interior preservation from Philadelphia. This is always a difficult issue; certainly there are often reasonable expectations for preserving the exterior of historic properties. Preserving interior space, even spaces where members of the public may be admitted for a price, is less intuitive. Even if the property is landmarked, must the order guarantee admission? Is this a reasonable regulation under the circumstances? Obviously many properties may have an increased value by virtue of becoming a historic landmark, and opening the doors to members of the public. There are compelling arguments on both sides it would seem. The recent discussions here in Nashville concerning Music Row are similar; the exterior of the buildings under consideration are not of significant interest; it’s the interior that has some historical/cultural significance.

Another decision regarding Short Term Rentals

Short-term rental occupancies is quite a hot topic these days. In a recent decision by the Wisconsin Court of Appeals, Heef Realty and Investments v City of Cedarburg Board of Appeals, 2015 WL 442445, the Wisconsin court decided in favor of the property owner, much in the same way as the Tennessee Court of Appeals did in a similar case from Hamilton County in 2009. See Wade v Patterson, 2009 WL 211878. In the Wisconsin case, to property owners appealed from a decision of the zoning board that the zoning regulations did not permit short-term rental occupancies. Much as in the Tennessee case, the property owners pointed out that the city did allow long-term rental occupancy and there is no definition of the minimum time permitted. Furthermore, both in Wisconsin and Tennessee, and many other states, where there is any ambiguity in the regulations, that ambiguity is usually resolved in favor of the property owners. Because there was nothing in the ordinance which established that a single-family residential use had to be for more than, let’s say for purpose of example, 30 days, the zoning board’s interpretation of the code was struck down by the court.

Similarly, the Tennessee Court of Appeals used essentially the same analysis and reach the same result in Wade v Patterson. The real lesson of these cases is that if you are drafting local zoning regulations, some care must be taken to define single-family residential use if the intent is to preclude short-term rental occupancies. It is certainly unclear that short-term rental occupancies are necessarily bad; many cities are moving in the direction of allowing such occupancies expressly by amendments to their zoning regulations. It may be, as time goes along, that more cities adopt that more progressive attitude.

Local Zoning Boards and the Federal Telecommunications Act

Last week, the United States Supreme Court decided an interesting land use planning case involving the Federal Telecommunications Act of 1996. In T-Mobile South, LLC v. City of Roswell (United States Supreme Court, January 14, 2015), the court concluded that while the Act requires reasons for the decision, those reasons do not have to be found at any particular location in the record whether it be in the minutes, the decision itself, or some other document; however, more critically, the reasons must be given at the time of the decision or roughly contemporaneously with it.  In the case pending before the Supreme Court, the zoning board had delayed 26 days before releasing the reasons, and the court found this to be a violation of the statute.

This decision appears to overrule one aspect of the leading Sixth Circuit case, New Par v. City of Saginaw, 301 F.3d 390, 395–96 (6th Cir. 2002), which required that the “in writing” requirement must be separate from the written record. However, the Sixth Circuit also required that the reasons for the denial be given, that the denial be supported by material evidence, and that there not be any unreasonable delay in the decision, all of which are also mandated by the Supreme Court.

With regard to the timing of the decision, the court noted that

If a locality is not in a position to provide its reasons promptly, the locality can delay the issuance of its denial within this 90- or 150-day window, and instead release it along with its reasons once those reasons are ready to be provided. Only once the denial is issued would the 30-day commencement-of-suit clock begin.

It would appear therefore that the local zoning board need only delay its actual decision until the reasons are ready; it can then issue the decision and the reasons underlying the decision at the same time.

I have previously mentioned that in Tennessee, it seemed to me that the board could take a vote on the decision and then at the next meeting adopt findings of fact to support the decision. This case calls that idea into question; however, since the 90 to 150 day window exists, in the case of telecommunications applications, the board should simply defer action, request reasons to potentially grant or deny the application at the next meeting from the staff, and then at the next meeting adopt those reasons as the basis of a decision to be made at the later time. In fact, it might be best to ask for reasons supporting grant or denial.

The court notes that it is important to have the reasons for the decision in order to facilitate proper judicial review. Unfortunately, the Tennessee courts have been reluctant to impose an absolute requirement for a statement of reasons supporting zoning board decisions. In the well-known case, Advanced Sales v Wilson County, 1999 WL 336305 (Tenn. App. 1999), the court accepted a very brief form with the entry “Relief Denied,” circled and signed by the board Secretary as sufficient evidence of the decision. Certainly there was no reasoning behind the decision. The Tennessee courts need to follow the federal courts and require fact findings support decisions of these local administrative bodies. Otherwise it’s difficult not only to facilitate appellate review, but even decide whether to take an appeal. If you don’t know the basis upon which the board made the decision, it’s difficult to decide whether an appeal might be successful.

In any event, this new case offers some additional insight into the way the US Supreme Court views this local zoning process, and certainly the burden on the local zoning board seems to be a little less than what we previously thought.