Saturday, March 31, 2018

Challenging the Historic Zoning Commission

In an opinion issued just yesterday by the Tennessee Court of Appeals, a decision of the Metro Historic Zoning Commission is reviewed and illustrates several important points when challenging decisions of the historic zoning commission. The case involves a property located on Lower Broadway here in Nashville. MJM v Metro Historic Zoning Commission, Tenn. App. 2018.

Both the procedural and substantive aspects of this case are worth noting. First, the case was appealed pursuant to the statutory writ of certiorari, specifically authorized in the historic enabling legislation. Tenn. Code Ann. § 13-7-409 states that "anyone who may be aggrieved by any final order or judgment of the historic zoning commission… may have such order or judgment reviewed by the courts by the procedure of statutory certiorari." As the MJM court noted, review pursuant to the statutory writ means that the trial court may hold a new hearing based upon the administrative record and any additional or supplemental evidence which either party wishes to produce at trial. Furthermore, although the appellate court did not expressly say this, the statutory writ allows the trial court to substitute its judgment for that of the administrative body and make whatever decision the court feels is appropriate based on all of the evidence. Tenn. Code Ann. § 27-9-111(d).

Almost every other species of administrative appeal in land use planning and zoning cases here in Tennessee are pursuant to the common law writ of certiorari, which is much different. In a case brought pursuant to the common law writ, no new evidence may be submitted to the trial court (absent exceptional circumstances), and the trial court may only disturb the ruling of the administrative body upon a finding of illegal, fraudulent, or arbitrary and capricious action. This makes it difficult to reverse any administrative decision which must be appealed pursuant to the common law writ, which is in fact most zoning decisions.

The first thing to notice here is that most people either do not realize or do not understand that review pursuant to the statutory writ of certiorari is available. Ordinarily, from my perspective, this gives an advantage to the applicant because a wide array of proof which might have been too expensive to adduce at the administrative hearing may be more easily available for a trial court hearing. However, that is not to say that an attorney handling such a case should not be aware of a choice between the common law and statutory writs in such cases. If the attorney seeking the appeal believes that the record below is much better for the appellant as a result of some failure of the Historic Zoning Commission to have sufficient proof which ruling in front of it, it may be worthwhile to file a request for review under the common law writ of certiorari. Without objection, the court will ordinarily here the case as a common law writ, preventing the presentation of additional proof by the historic zoning commission. Bear in mind, that is the historic zoning commission is aware of the law in Tennessee, and frankly, that is often not the case, the commission can argue to the court that the case should be opened up, an additional proof permitted. In my experience, that is not happen very often. For example, in Byron Avenue v Metro Historic Zoning Commission, a case in which I was tangentially involved, review was pursuant to the common law writ of certiorari because that was the type of review requested by the petitioner. No objection was made and although the standard of review was higher (the arbitrary and capricious standard), because the proof was so one-sided in favor of the petitioner, the Court of Appeals ultimately reverse the decision of the historic zoning commission and remanded for further proceedings, where the petitioner ultimately prevail.

Obviously, this is a judgment call that must be made by the attorney based on his or her evaluation of the proof as it was adduced before the administrative agency. In most instances, I believe that the statutory writ of certiorari, with the lower burden of proof and the ability to introduce additional evidence is far superior; but there are certainly cases where the attorney representing the party seeking review might decide that at least asking for the common law writ without bothering about the statutory writ, might be a better strategy.

Finally, there is one other aspect of the statutory vs. common law writ of certiorari which should be noted here. To the extent that the statutory writ of certiorari is made available to review actions of a legislative or executive nature, it is not constitutional. The leading case, decided back in the 50s, is Hoover v Public Utilities Commission, 195 Tenn. 592, 261 S.W. 2d 233, 238 (1953). Why is the historic zoning commission in applying its rules and regulations to a particular piece of property any different from the board of zoning appeals in administering the zoning ordinance as applied to a particular piece of property? In fact, there would appear to be no difference yet the board of zoning appeals decisions are appealed pursuant to the common law writ of certiorari, and the historic zoning commission is subject to the statutory writ of certiorari. So far as I know, no one has ever brought this up and as a result, it has not been addressed by any Appellate Ct. in Tennessee. But if, for example, the attorney for the petitioner, was seeking a common law writ and the attorney for the historic zoning commission argued that the statutory writ was available pursuant to the specific statutory authority, the constitutionality of that statute would be worth challenging. It is certainly an interesting question of administrative law.

Substantively, this case is interesting as well. Essentially, the petitioner/property owner wanted to make various changes to the exterior of the building. The historic zoning commission approved many of the proposed changes, but rejected proposed changes to the front windows, and required a parapet wall on the roof as opposed to a railing.

The petitioner argued that because substantial changes had previously been made to the property, much of the historic value had been lost. The trial court perhaps said it best:
There is an implicit grandfather provision in the [Historic Preservation] Guidelines and in the statutes which indicate that the property or preexisting condition of property in 2007 [when the historic district was created] may be preserved by the owner, but when alterations and additions and other changes, replacements, take place, then those alterations, replacements, and buildings must be in keeping with the 1935, that is the historic building….And the Court finds here that since [Petitioner] wants to alter its year 2000 windows that it used to replace the historic windows…it must now alter them in compliance with the historic guidelines. And [Petitioner] has not carried its burden to show that it is entitled to a Preservation Permit allowing those roll-up windows, because they are not historic.
The petitioner argued that the historic zoning commission based its denial of the proposed replacement windows upon their function, but the testimony at the hearing by one of the commission staff members clearly indicated that the windows proposed when open would appear vacant and inconsistent with the historical construction elsewhere on Lower Broadway.

With regard to the required parapet wall on the roof, the same staff member testified that a railing would allow our view of the additional stories which were being added to the building but that a parapet wall would prefer that view and the more consistent with the adopted guidelines for the area.

Is there any lesson which can be gleaned from these conclusions? First, it is very difficult to launch a direct attack on guidelines for any historic area. A review of any historic zoning ordinance and guidelines for any particular area will quickly demonstrate that the language is very ambiguous and difficult to apply in an objective manner. Most courts are going to lean heavily on the historic zoning commission and its staff regarding the proper application of the guidelines and regulations.

Second, that means to me that the argument to be constructed should usually be to demonstrate that the proposed alterations are consistent with the historic guidelines. While that is often difficult to do at the level of the administrative decision maker, hiring an outside expert, beyond someone who simply has an engineering or architectural degree, is frequently the best way to go. Hiring an expert with the historical background to support your position will at least give the court an additional view on the way the guidelines should be interpreted and applied. To my way of thinking, that is the preferable approach but of course it assumes that you can find a preservationist who supports the proposed alterations suggested by the property owner.

This is an interesting case, but I fear very typical in the area of historic zoning. Because the statutes, ordinances, and regulations (frequently called guidelines, but if you read those guidelines carefully, you will see that the staff always really thinks of them as regulations) are often ambiguous, the court relies on the staff to understand their meaning. Typically, in the context of other zoning decisions subject to review, there are objective criteria which must be met and if they are met, the permit should issue. For example, in the case of a special exception/conditional use permit, if the applicant demonstrates compliance with the required conditions, the permit should issue. To the extent that a number of neighbors may appear and oppose, causing the zoning board for example to deny the application, there is a significant chance of reversal on appeal. Look at it from another perspective, from the point of view of the neighbors: in a variance case, if the developer does not demonstrate compliance with the requirements of the statute for variances, then if the variance is granted it is also subject to reversal on appeal. In both of those instances there are usually objective criteria by which to make the decision. Because the historic zoning regulations generally are much less objective, it increases the difficulty of successfully appealing a decision of the historic zoning commission, whether you are the applicant/landowner or a neighboring property owner.

Friday, March 30, 2018

Takings cases created by non-enforcement of regulations

Assume for a moment that your neighbor is illegally using his property for some type of commercial activity. Let’s assume it’s a barbershop. Can you sue the local government for the diminution in the value of your property as a result of its failure to enforce the local zoning regulations? We looked at a case that is very similar to this a short while back. In Beech v City of Franklin, the Sixth Circuit Court of Appeals dismissed the claim against the city, although in that case, the plaintiff only alleged failure to enforce the zoning regulations and asked for mandamus to force the city to enforce the code provisions. The Sixth Circuit emphasized that there was no takings claim made against the city in the original lawsuit which was filed in Chancery Court in Williamson County. As a result, under both state and federal takings law, the case was not ripe for review.

But let’s suppose that such a claim had been made in the Chancery Court. Would the plaintiffs have prevailed? It would certainly seem very difficult from my perspective.

However, there is a very interesting recent article about “Non-Enforcement Takings,” which makes the point that although these types of cases are difficult, to be consistent, non-enforcement takings cases should be reviewed carefully and under the right circumstances may form a justifiable basis for relief. The neighbor complaining about the barbershop is a good example: certainly, having a barbershop next door to your residential property may cause a significant decrease in the value of the land, may increase noise, traffic, and cause other harm to the property owner. It is difficult however usually to get the courts to seriously review such claims.

The article is by Tim Mulvaney, Non-Enforcement Takings (February 20, 2018). Boston College Law Review, Vol. 59, No. 145, 2018, and is available at SSRN.

Of course, the property owner can sue the neighboring property owner for nuisance, including a request for damages and injunctive relief. Perhaps in the case of a failure to enforce the zoning regulations by the local government, there is the possibility of an additional takings claim? Obviously, one of the counter arguments is the extent to which such failure to enforce takings cases might subject the local government to an onslaught of damage claims.

The article is quite interesting and certainly the argument is worth considering seriously.

Tuesday, March 27, 2018

Short Term Rentals: Amendment 2 to Senate Bill

Last week I mentioned that the Senate here in Tennessee had considered an amendment to the short terminal bill but at the time I did not have access to the amendment because it had not yet been posted online. The amendment is now posted and is worth a look. It is less broad than the original legislation.  Take a look at it here.

In general, the amendment looks to keep existing short-term rental properties but allow local governments to control and regulate short-term rentals in the future. Originally, the legislation appeared to take virtually all control of short-term rentals from local governments, but it would appear, given the language of the second amendment to the bill, that there weren't enough votes for that broad-based regulation, and so instead, the bill is amended simply protects existing short-term rental properties.

If you work in this area, it's certainly worth a look.

Saturday, March 24, 2018

Variances: Basis and res judicata

The Tennessee Court of Appeals and that an interesting variance case last last December, Cobble v Greene County, 2017 WL 6502878 (Tenn. App. 2017), dealing with both the basis for variances and the potential application of the doctrine of res judicata.

Mr. Moore wanted to add a carport onto his residence and to that and began erecting a prefabricated aluminum carport on the front right side of his property. Unfortunately, this was a violation of the current Zoning Resolution which required that portion of the property to be open space. The Moore's filed an appeal to the board of zoning appeals of the zoning board voted down the application.

About a month later, a second application for a variance was filed seeking the same relief except that there was one significant difference, in that the request was 7 feet less on the setback. The neighboring property owner, cobble, attended the hearing and opposed granting the variance. More justify the variance indicating that he was out of town four days a week and that he was trying to make it so that his wife could go out in inclement weather, and stay out of the rain or snow. Moore also acknowledged that he had six cars and already had a garage. He didn't think that that had a bearing on the application.

The staff report indicated that there was a significant slope on the left side of the property and borders and undeveloped Street. In addition, the staff report noted that there worse exceptional topographic conditions on the rear part of the property. The combination of slope, topography and increased left side yard setbacks because the property was a corner lot, made it difficult to locate the carport. As a result, the staff recommended approval of a variance.

The board, following the staff recommendation, granted the variance.

The Cobbles filed a petition for writ of certiorari and the trial court affirmed the decision of the zoning board.

The Court of Appeals discussed two issues: whether res judicata would bar the second application for a variance, and whether or not the decision was supported by material evidence.

With regard to res judicata, the court cited the recent Finley v Marshall County, 2016 WL 3637879 (Tenn. App. 2016), for the proposition that the doctrine of res judicata would apply in a context such as this administrative decision relating to a variance. The court found that there was no violation of res judicata, because the second request was materially different from the first in that there was a 7 foot reduction in the requested variance. The court acknowledged that if the Moore's had, for instance, Coming back seeking one full class of a setback each time, probably would fall within the doctrine of res judicata. But here, there was a material reduction between the first and second applications sufficient to make the second application significantly different from the first.

The next question was whether or not there was enough evidence to grant a variance. The Court of Appeals concluded that there was no evidence in the record justifying the variance even given the fact that judicial review of such a decision by the Board of Zoning Appeals, was extremely narrow. First, the court noted that the desire to build this carport was based on the fact that Mr. Moore owned six vehicles and could not fit them all into his existing garage. "It is not at all clear how the Moore's' beneficial use of the property is impaired by any unique hardship from the train. On the contrary, it appears that any hardship incurred by the Moore's is self-imposed."

In addition, the court noted that the staff report indicated that all of the properties in the same general vicinity were challenged with similar slopes and topographic conditions. The court made the point that if all of the properties had these exceptional conditions, then the conditions were exceptional and all of the lots suffered from the same difficulties. The subject property simply was not distinctive and as a result the more property was not eligible for a variance on that basis.

The court went further to indicate that if the local legislative body considered that the current zoning requirements were unduly harsh or oppressive, then legislation revising the regulations could always be adopted. In any event, the decision of the zoning board was reversed.

This is quite an interesting decision, and makes significant points about each of the issues. The applicant changes the requested relief in a significant manner. Thus, zoning officials need to be careful about screening such cases: if there is a significant change in the requested relief, such as the 7 foot reduction in the requested variance in this case, then the matter should go to the board of zoning appeals for consideration. In fact, I would suggest that every case go to the board and the board should be permitted to consider how closely connected any success of application was to the original allow the board to make that decision.

Perhaps more importantly, a quick review of the Tennessee Public Zoning Enabling Statutes,Tenn. Code Ann. §13-7-201 et seq. (municipal), and in particular, §207 (3), will demonstrate that the emphasis is on finding some exceptional physical or topographical feature of the property which justifies relaxing the zoning restrictions on a particular property. The difficulty is that you have all of the property suffer from the same physical or topographical feature, then the property which is the subject of the appeal cannot be said to be exceptional. In order to be exceptional, it must stand out from its neighbors. If all the neighbors suffer from the same physical difficulties, then the only change that should be countenanced is a legislative change so that everyone benefits and not a single property owner

We don't have many cases here in Tennessee which make this point. It is however a valuable one. If you are the attorney representing applicant for a variance, you want to distinguish your client's property from the other properties in the surrounding vicinity. If you are representing a neighborhood, you want to emphasize the similarities of the property to the other properties in the surrounding vicinity.

This is a very interesting case, and certainly worthy of additional study.

Thursday, March 22, 2018

Short Term Rental Properties – AG's Opinion

Back on February 20, we discussed briefly a bill pending before the Tennessee General Assembly which would limit the regulatory power of local governments in dealing with short-term rental properties. Senate Bill 1086 is still pending before the Tennessee General Assembly, but recently, the Tennessee Attorney General has weighed in on the legislation confirming that for the most part the proposed legislation is constitutional. A copy of the opinion can be found here.

The first question had to do with exempting local governments with legislation regarding STRPs before January 1, 2014. The question was whether or not distinguishing between local governments which had legislation before that date vs. those which did not pass legislation until after that date was impermissible constitutionally. The AG's opinion is that it would not render the proposal impermissible.

The second question was whether or not the fact that the proposed legislation would allow local governments which prohibited STRPs on or before August 1 of 2017 to continue the prohibition, while it would not permit other local governments which did not enact legislation prior to that date to so prohibit STRPs. This time, the AG felt that there is no rational relationship between the date and distinction between those two classes of regulations. The opinion states:

Proposed $ 13-7-603(b) states that its purpose is "to prevent recent and future
overregulation of short-term rental units by a local governing body." On its face, this purpose appears legitimate. If the General Assembly determines that a prohibition or effective prohibition on short-term rental units is "overregulation," it can act to address that problem. But if a prohibition or effective prohibition enacted on August 2,2017, is an "overregulation" that warrants legislative action, then it is unclear why the same prohibition or effective prohibition passed on July 3 7,2017 , would not warrant the same action. 
As a practical matter, the date appears to have been chosen to nullify the Metropolitan
Government of Nashville and Davidson County's act in November 2017 to ban short-term rentals. The proposed legislation would apply more broadly, of course, to prevent any local government from taking similar action in the future. The prohibition does not, however, distinguish among local jurisdictions based on facts that are conceivably relevant to the regulation of short-term rental units, such as population size, tourism, or urban density.  
The proposed legislation instead distinguishes among local jurisdiction based solely on the date on which the jurisdiction enacted a prohibition on short-term rental units. Because that date does not appear to be reasonably related to any conceivable state interest in the regulation of shortterm rentals, this provision would likely violate the Tennessee Constitution. In contrast to the date in the continued-use provision-which corresponds roughly to the point at which the use of residential property for short-term rentals became widespread and relates to the legislature's concern about preserving property owners' reasonable expectations for the use of their property the date chosen after which no local government may prohibit short-term rental units is arbitrary
and unrelated to the interests underlying the legislation.
The third question involve the extent to which the proposed legislation might have an impact on taxation and run afoul of the Tennessee Constitution on that issue. The AG distinguished between the use of property for tax purposes and the use of property for zoning and land use purposes; just because the property is classified as commercial for one use, is not require that it is considered as commercial for another.

Finally, the fourth question had to do with whether or not the proposed legislation would be unconstitutional given that it effectively only applies to Davidson County (at the present time) and, whether or not the use of terms such as reasonable compliance and effectively prohibit were too vague to survive constitutional scrutiny. In both instances the AG responded in the negative. With regard to the first question, since other jurisdictions could theoretically be subject to the law in the future, it was not class based legislation prohibited by the Tennessee Constitution. Furthermore, the terminology of the proposed legislation is capable of reasonable understanding by ordinary citizens. In addition, since the legislation as proposed would limit the powers of local governments, and because local governments have no due process protections against the legislation, there likely would not be any due process violation either.

Of course, it is useful to bear in mind that the AG only offers an opinion, and while those opinions are certainly useful and offer guidance, they do not have the force or effect of law. Only a judicial decision would carry that weight. It will be interesting to see what the General Assembly does with the legislation. Furthermore, there may be litigation arising out of the legislation if it passes.

Wednesday, March 21, 2018

Short Term Rentals: Senate Bill 1086 Moves thru Committee

The Short Term Rental Properties Bill, Senate Bill 1086, was recommended for passage yesterday by the Senate Commerce and Labor Committee, 8 to 1. There is an interesting video of the sponsor of the bill here. As you might suspect, the emphasis is on the property rights of the unit owners during the sponsor's presentation. Interestingly, Sen. Stevens discusses the bill in terms of grandfathered uses. The bill actually looks more like a regulatory scheme rather than a non-conforming use bill. Further, with regard to non-conforming uses, it would probably be better to link it to the Tennessee Non-Conforming Property Act,Tenn. Code Ann. §13-7-208, if that's the intent. I looked back quickly through the bill and didn't see any reference to the TNCPA.

In addition, the bill which is on the website does not appear to be the latest version, at least not the latest one that I’ve seen.

It is also worth noting that there is a provision in the bill for judicial remedies which allows the unit owner to appeal to the board of zoning appeals if the permit is revoked or if there is a refusal by the local government to issue or renew a permit. The interesting part is that an appeal from the board of zoning appeals to Circuit Court or Chancery Court is de novo instead of on the record from the board of zoning appeals. There is certainly a constitutional issue there. Generally speaking, courts of law may not review administrative decisions as though the court was making a decision in the first instance, because it’s a violation of the separation of powers doctrine. The Tennessee courts have long recognized that distinction and therefore whether judicial review pursuant to this statutory provision is constitutionally permissible is certainly open to question.

In any event, it will be interesting moving forward to see how the bill progresses.

Business licenses and non-conforming uses

In order to establish a non-conforming use, must the property owner demonstrate compliance with the business licensing laws? In Oregon, the answer is evidently no. In Morgan v Jackson County, 290 OR App. 111 (February 7, 2018) the court reversed a zoning board decision finding that an “auto yard business” located in a zoning district for agricultural use was not legally non-conforming because it did not comply with the dealer-licensing statutes of Oregon.

The court, relying on statutory authority, construed the statute and its use of the phrase “lawful use” to include only land use laws. Therefore, the fact that the owner of the property did not have a business license to engage in the operation of the business at the time that the operation began was not relevant to the land use issue. As a result, the zoning board decision finding no non-conforming use was reversed.

The Tennessee statute, Tenn. Code Ann. §13-7-208, augurs in precisely the opposite direction. For example, §208 (b), (c) & (d) allow “industrial, commercial, or other business establishments in operation and permitted to operate under zoning regulations or exceptions thereto immediately preceding a change in zoning…” to continue and expand. §208(d)(1). In Toles v City of Dyersburg, 39 S.W. 3d 138 (Tenn. App. 2000) the court concluded that because a tavern operator had lost his beer license immediately before the change in zoning took place and therefore could not legally be “in operation” that the property was no longer legally non-conforming. The court found nothing involuntary about the cessation of operations of the tavern and found the property was not legally non-conforming as a result.

I suspect that we will see other cases arguing this point here in Tennessee. However, the “in operation” provision of our statute, as applies to commercial and industrial uses, makes the argument much more difficult than in other states, such as for example Oregon.

Tuesday, March 20, 2018

Religious use and concentrated animal feeding operations (CAFO)

In an interesting special exception case out of Indiana, House of Prayer v Rush County Board of Zoning Appeals, 2018 WL 414862 (Ind. Appeals January 16, 2018), a religious land use adjacent to a farm which asked for a permit to operate a concentrated animal feeding operation (CAFO) with 1400 cattle lost as a result of the fact that the agricultural use, even in its intensive form, was both expected and encouraged in the zoning district.

House of Prayer argued that its property should be protected as a result of the Indiana Religious Freedom Restoration Act and the RLUIPA, but the court concluded that there was no protection under the federal act as a result of the fact that the House of Prayer did not have an interest in the property which was regulated, a requirement under the federal act. As far as the state act goes, the court concluded that while there was some evidence of a burden on its religious exercise, because the owner of the farm promised to control the runoff and odor, the court found no substantial burden.

I have not seen too many cases yet where state religious freedom statutes are important in the outcome. It is interesting here that the Indiana court deferred to the local zoning board even in the face of an allegation implicating the Indiana statute.

Wednesday, March 14, 2018

Howell v Farris, Tenn App 2018

This very interesting case involves an appeal from a decision of the local legislative body in Bolivar denying building permits to the property owner. The denial of the building permits was based on the failure of the owner to get a contractors license as required by Tennessee law. The suit requested the issuance of a statutory or common law writ of certiorari,  and liquidated damages based allegedly on the delay caused by the city by refusing to issue to permits. At a later time, the complaint was amended to include a request for inverse condemnation by regulatory taking.

The Court of Appeals initially considered whether the appropriate mechanism for appeal was the common law or statutory writ of certiorari. Based on innumerable cases here in Tennessee, the court easily concluded that since the local legislative body was acting as a board of zoning appeals at the time that it upheld the denial of the building permits, that the proper means of challenging that decision was pursuant to the common law writ of certiorari. Remember that the statutory writ of certiorari allows the trial court to conduct an entirely new hearing, including the admission of new evidence is the parties so desire whereas the common law writ only allows the trial court to review the record of the proceedings below to determine if the administrative body acted arbitrarily or capriciously.

The Court of Appeals, citing Judge Ben Cantrell's well-known and definitive article (Review of Administrative Decisions by Writ of Certiorari in Tennessee, 4 Memphis State University Law Review 19, 28 (1973)), held that the statutory writ was only available when (1) the order of the administrative body has no specific provision for judicial review; (2) the function performed by the lower tribunal is essentially judicial in nature; and (3) the order for which review is sought finally determines the rights of the petitioner.

The difficulty with this framework is the use of the term "judicial." Who's to say that a board of zoning appeals acts any less "judicially" then the historic zoning commission?

Judge Cantrell offers some insight into that question. "Apparently the court will sanction the granting of review by the statutory writ with its trial de novo only where the administrative tribunal is acting as to the petitioner much like a court would; namely, the individual petitioner has something like a private property right (e.g., a license, a permit, an office) which by its order, the administrative body may take away." Once again, think of it in the context of a zoning board: most of the time, the zoning board is determining whether or not to grant some specific type of relief to an applicant, a variance, or a special right to use property such as by a special exception or conditional use permit. If the board denies the application for the variance or conditional use permit, the applicant has not lost any species of right – the applicant never had the right to use his/her property for that purpose in the first place. Thus, arguably, nothing has been lost.

In this case, the question was whether or not the applicant had satisfied the requirements for the building permit and the legislative body/board of zoning appeals determined that he had not because of his failure to comply with the Contractors Licensing Act. While reading the language of the Court of Appeals in this case may not help clarify the distinction, Judge Cantrell's observations back in 1973 most apt.

The second issue was whether or not the case became moot when during the pendency of the litigation, the property owner finally was able to obtain the building permits. At stake worthy numerous other claims that the plaintiff had attempted to put before the court arising out of the denial of the permits. The Court of Appeals affirmed the decision of the trial court finding the whole matter moot by issuance of the permits. But it went further: "it has been consistently held that the common law writ of certiorari, which is appellate in nature, is incompatible with an original action, and the two cannot be brought together." In other words, all of the other claims, request for injunction, removal action, the takings case, were all inappropriately joined with the common law writ of certiorari and should have been dismissed by way of a motion to dismiss early on in the litigation. I will come back to this point just a second.

Finally, the court addressed specifically the regulatory taking claim. While the trial court concluded that the taking claim had to be dismissed, it was based on the fact that the Tennessee Criminal Court of Appeals had ruled that withholding the building permits because of a lack of compliance with the Contractors Licensing Act was appropriate, the Court of Appeals concluded that it should have been dismissed because it was not proper to join the regulatory taking case with a petition for the common law writ of certiorari.

Citing among others, Goodwin v Metro Board of Health, 656 S.W. 2d 383, 387 (Tenn. App. 1983), the Tennessee Court of Appeals held that since the plaintiff had requested the issuance of a common law writ of certiorari, a form of appellate review, his claims invoking the original jurisdiction of the Chancery Court, including his regulatory taking claim, could not be joined in the same proceeding. Therefore, the regulatory taking claim had to be dismissed.

Let me make two quick observations concerning the ability to join original action with a common law writ of certiorari. The Goodwin case and its progeny have been around as long as I practice law. It has never made any sense to me. What is there about joining an original cause of action such as a regulatory takings case with a common law writ of certiorari which disqualifies the Chancery Court from hearing them both? Are we saying that the Chancellor's are not equipped to handle a multiplicity of actions? That doesn't make much sense. Certainly both our chancery court and circuit court judges are entirely capable of handling a case which is in Foreman appellant action, and a case which is informed and original action, in the same matter. Is there some difficulty, hearing can be held separately to make disposition easier. But that doesn't seem to be any reason why the Chancellor or Circuit Court judge or these issues all at once in the same proceeding.

However, since the Goodwin doctrine has been around for at least 35 years now, a far safer alternative for counsel is to simply file two cases. First, file the administrative review via the common law writ of certiorari, and then file a second case seeking whatever other types of original relief the client might be entitled to. Take this case for example. If the common law writ of certiorari had been filed first, and then immediately after that, another suit for regulatory taking, injunctive relief damages, on whatever other theories might be available, the Goodwin doctrine would be avoided and the client would be entitled to pursue whatever relief might be available.

The attorney for the petitioner (plaintiff) must remember that the petition for certiorari must be filed within 60 days after the entry of the decision by the Board of Zoning Appeals. That's why it is important to go ahead and file the petition for certiorari first, because ordinarily the statute is for the other types of tortious misconduct is longer.

Finally, it is worth noting apps, if the court dismisses claims properly certiorari case he may be some relief pursuant to the saving statute here in Tennessee. I don't know of any case law on that issue, but if there's nothing else available, that would probably be worth arguing to see what our appellate courts would conclude as to that issue.

Tuesday, March 6, 2018

Ward v Metro Board of Zoning Appeals

The Davidson County Chancery Court has upheld the Metro Board of Zoning Appeals which agreed with Bill Herbert, the Metro Zoning Administrator, that the Glencliff Methodist Church should be granted an accommodation to allow 22 "tiny homes" for the homeless on the church property. Metro and the Church argued that the accommodation was required to avoid a substantial burden on the religious beliefs of the  Church and its members. The Church and its members sincerely believe that part of their religious duty is to help the homeless and other disadvantaged people.

The neighbors filed the appeal arguing that the accommodation was not essential and that the land use regulations were compelling in nature. The latter argument was undercut by the decision of the Board, which did not find that the regulations were compelling.

The Court first found that the petitioners did have standing to sue because they lived close to the church property based on the certiorari petition.

Furthermore, the Court concluded that the petitioners failed to establish by clear and convincing evidence, under the facts of this case, that enforcing the neutral residential zoning laws and subdivision regulations against the Church was essential to furthering a compelling governmental interest. The Metropolitan Government did not assert that any such compelling interest exists under the specific facts of this case.   The record contained material evidence supporting the decision of the Board of Zoning Appeals, and  therefore the court upheld its decision.

Most likely this case will be appealed to the Tennessee Court of Appeals. There is, as of yet, very little case law interpreting the Tennessee statute, and this case should offer guidance to legal counsel as to how the statutory provisions should be construed.