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.

No comments:

Post a Comment