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.

1 comment:

  1. Interesting. I've had conversations with planning staff before about whether rezoning requests should go on the board agenda after the planning commission recommends denial. I think the common practice here is to put in on only at the request of the applicant. I've wondered, though, if it would be better practice for the default to be put it on the agenda unless the applicant withdraws the request.

    That administrative function of agenda gatekeeper is pretty powerful.