Wednesday, December 23, 2015

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.

Thursday, December 17, 2015

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.

Tuesday, December 1, 2015

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.