Monday, September 30, 2019

Tennessee Public Participation Act, Tenn. Code Ann. § 20-17-101 et seq.

During its last session, the Tennessee General Assembly adopted the Tennessee Public Participation Act, Tenn. Code Ann. § 20-17-101, et seq. This new provision is much broader than the original Anti-Slap Act which was passed in 1997, Tenn. Code Ann. § 4-21-1001. The older act offered limited protection for communications with public entities. The recent legislation allows the defendant public participant (a neighborhood organization for example) to file a motion (the act actually calls it a petition) to dismiss and the case against the public participant may be dismissed if the legal action is based on that party’s exercise of the right to free speech, right to petition, or right of association. I won’t describe the burdens of production and persuasion further. My interest is to briefly look at this act in relationship to land-use appeals brought under the common law writ of certiorari.

Recall that the certiorari statute requires the administrative tribunal and “other parties of record” be named as respondents in the petition for writ of certiorari. Tenn. Code Ann. § 27-9-104. This term, “other parties of record” has never been defined precisely, and it is unclear as to whether neighbors opposing a particular development are parties of record. I have generally used a rough rule of thumb that I will bring in a neighborhood group which has hired an attorney to represent it before the zoning board or planning commission. Perhaps the neighborhood organization is not a party of record, but the fact that they cared enough to retain counsel is indicative of a desire to participate in the process.

But suppose after naming and serving the neighborhood organization, the neighborhood organization sues under the Tennessee Public Participation Act. The act is so new, it is hard to understand how these two statutes may interreact. Let me make just a couple of observations.

First, legal action is defined by the TPPA as a claim, cause of action, petition, cross-claim, or counterclaim or any request for legal or equitable for relief initiated against a private party. Tenn. Code Ann. § 20-17-103 (5). Since a petition for writ of certiorari does not usually state a legal or equitable claim for relief as against any neighbor or neighborhood group, only against the local government and its administrative board the relief sought is usually a reversal of the decision of the administrative body (and attorneys fees if applicable), it is not clear that a neighbor brought into a cert proceeding can file a motion to dismiss under the TPPA. In fact, under Tenn. Code Ann. § 27-9-110, if a respondent is named in the petition, and that respondent does not desire to defend the case, the respondent does not need to do anything, including filing an answer. No adverse consequences will flow from this failure to respond. Remember too that the answer does get filed until 30 days after the filing of the transcript, which would give a neighborhood a chance to look at the transcript and make a decision as to filing an answer after receipt of that document.

Second, perhaps prior to filing the petition for writ of certiorari, counsel for the appealing party should contact the attorney for the neighborhood organization and simply ask if they want to be involved. If not, the neighborhood organization is not named, and if there is a complaint later, (for example, after the appealing party wins and the decision of the local administrative body is reversed), where the neighbors argue that they should have been involved and that the judgment is invalid as a result, the communication with the attorney for the organization may be enough to demonstrate that the neighborhood organization waived its right to participate.

Another option for the petitioner, would be to file against the local government and its administrative body, and only give notice of the appeal to the neighborhood organizations. The neighborhood group if it so desires could petition for leave to intervene after such notice. See Tenn. Code Ann. § 27-9-110(b).

Third, an interesting component of the TPPA is that discovery is stayed upon the filing of a petition to dismiss until the court rules. Tenn. Code Ann. § 20-17-104(d).  This might be a disadvantage in most cases, but in certiorari proceeding there is little to no discovery in any event, and so an automatic stay of discovery has little to no bearing on the proceedings of the litigation.

Frankly, I don’t see that there is any reason for a neighborhood organization to file a petition to dismiss under the TPPA in response to a common law writ of certiorari. But it has already happened in one case of mine, and I suspect that such petitions for dismissal will be increasingly frequent.

Friday, September 27, 2019

Administrative Hearings by Legislative Bodies

Dellinger v. Lincoln County, 2019 WL 3115211 (N.C. Ct. App. July 16, 2019)  is an interesting conditional use permit case which involved a final hearing by the local legislative body. The difficulty was that one of the members of the local legislative body evidently came into the hearing with preconceived ideas about the benefits of the permit. North Carolina has a statute one point:

A member of any board exercising quasi-judicial functions ... shall not participate in or vote on any quasi-judicial matter in a manner that would violate affected persons’ constitutional rights to an impartial decision-maker. Impermissible violations of due process include, but are not limited to, a member having a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a close familial, business, or other associational relationship with an affected person, or a financial interest in the outcome of the matter.

N.C. Gen. Stat. § 160A-388(e)(2) (2017).

Governing bodies sitting in a quasi-judicial capacity are performing as judges and must be neutral, impartial, and base their decisions solely upon the evidence submitted.In quasi-judicial proceedings, no board or council member should appear to be an advocate for nor adopt an adversarial position to a party, bring in extraneous or incompetent evidence, or rely upon ex parte communications when making their decision.  PHG Asheville, LLC v. City of Asheville, 822 S.E.2d 79, 85 (2018).  Board members acting in a quasi-judicial capacity are held to a high standard: “[n]eutrality and the appearance of neutrality are equally critical in maintaining the integrity of our judicial and quasi-judicial processes.”

Dellinger v. Lincoln Cty., No. COA18-1080, 2019 WL 3115211, at *3 (N.C. Ct. App. July 16, 2019).

A party who asserts a board member is biased against them may move for recusal. The burden is on the moving party to prove that, objectively, the grounds for disqualification exist.

There is a “presumption of honesty and integrity in those serving as adjudicators on a quasi-judicial tribunal,” but that presumption does not preclude a showing of demonstrated bias, mandating recusal.

Bias has been defined as a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction. Bias can refer to preconceptions about facts, policy or law; a person, group or object; or a personal interest in the outcome of some determination. However, in order to prove bias, it must be shown that the decision-maker has made some sort of commitment, due to bias, to decide the case in a particular way.

During the initial application several years back and the later appeal, perhaps as recently as two years ago I assisted in opposing the solar farm. I contributed financially. I expressed my opinion to others and had discussions with both those in favor and those opposed to the matter. All of these actions took place while I was a private citizen.

Petitioners clearly demonstrated Permenter’s bias based upon his actively opposing this specific conditional use application and appeal in the past, committing money to the cause of preventing them from obtaining the conditional use permit, and openly communicating his opposition to others. Permenter’s bias is not based upon his general discussion of or attitude toward solar farms or conditional use permits, but his position, contributions, and activities involving the grant or denial of this conditional use permit for Petitioner’s proposed solar farm. Permenter’s activities and positions proved he had a “commitment” to “decide the case in a particular way” or had a “financial interest in the outcome of the matter,” mandating recusal.

During the 5 June 2017 Board meeting and while sitting on the Board hearing the matter, Permenter advocated and presented ten pages worth of his “condensed evidence” in an attempt to rebut Petitioners’ prima facie case. This submission was made after another commissioner had already made a motion to deny the conditional use permit and had read the proposed order on the record. The “condensed evidence” advocated and presented by Permenter was biased, one-sided, and incomplete

As a result, the Court of Appeals reversed the decision of the lower court and ordered the issuance of the conditional use permit.

In most areas in Tennessee, conditional use permits are heard only by the Board of Zoning appeals. As a result, there is generally little chance of this same kind of overreaching by legislative bodies in the context of a conditional use permit. However, many zoning regulations provide for at least some hearing on a planned unit development before the local legislative body. These hearings are generally considered to be administrative in nature, similar to the conditional use permit application in this North Carolina case. As a result, the types of conduct outlined above which do not conform to due process requirements, can occur in Tennessee in the context of a planned unit development.

It is important to recognize that in an administrative proceeding such as a planned unit development members of the local legislative body are acting as judges, not legislators. Those members must be much more circumspect in their actions and words.

When dealing with a legislative matter, a preconceived idea about the impact of a particular zoning issue is not disqualifying. Many times, legislators are elected for their particular position on important issues. But in the context of a planned unit development, such preconceived biases are illegal and unconstitutional. The members of a local legislative body must understand the difference.

Saturday, July 20, 2019

Venture Holdings LLC v Metro Board of Zoning Appeals

Venture Holdings LLC v Metro Board of Zoning Appeals, 2019 WL 1897596, is a somewhat interesting conditional use permit case. As I have frequently mentioned, generally speaking, the applicant for the conditional use permit generally has the upper hand. The applicant must show that it meets the requirements for the particular conditional use it is applying for, and typically what happens is that the neighbors show up in opposition, but not very well organized and not prepared to address the particular requirements of the zoning ordinance.

This case is somewhat the antithesis of the general rule. In this case, one of my partners, Shawn Henry, had been retained to represent the neighbors and he had hired the services of a young urban planner to help oppose the application. Ultimately, the difficulty for the applicant was not the opposing claims of the neighbors so much as the failure of the applicant to satisfy the board and the courts that the impact on the surrounding land uses would not be substantial. A number of the surrounding manufacturing uses were somewhat sensitive to air-quality issues, and ultimately the board ruled against the application based on the sensitivity of the surrounding areas and the courts essentially upheld that determination.

Friday, July 19, 2019

Roland Digital Media v City of Livingston

Roland Digital Media v City of Livingston, 2019 WL 117582, is an interesting case. It involves an appeal from a decision of the Livingston Board of Zoning Appeals but the petitioner only named as the respondent the city of Livingston itself, and did not name the board of zoning appeals as a respondent. A motion to dismiss was granted by the trial court and affirmed on appeal based on the statutory provision which is very clear and requires that the petition "shall name as defendants the particular board or commission and such other parties of record, if such, as were involved in the hearing before the board or commission, and who do not join as petitioners."Tenn. Code Ann. §27-9-104.

Certainly that language seems very clear. Here's my problem with it. First, the zoning board is created by the chief legislative body of the town.Tenn. Code Ann. §13-7-205. There is no recitation in any of the state statutes, that this board has the power to sue or be sued. There is no provision for the board to have a budget, or for that matter even pay its members. It is difficult for the board to higher representation. Typically that is done by the city. Indeed, in this case, the city attorney represented the board of zoning appeals. There is no power to contract given to the board of zoning appeals and ultimately the big difficulty is that saying the board as a separate entity from the city appears to be a violation of Dillon's Rule of municipalities. Can I sue the Nashville Police Department for a civil rights violation? No. The Nashville Police Department or I suppose more properly, the Metro Police Department his simply one unit of government within the overall Metropolitan Government of Nashville and Davidson County. It is not a separate entity. To say that the zoning board is a separate entity seems equally unfounded. This is especially true where it has no budget, it has no employees, it has no power to contract, it can't hire its own lawyer, and essentially its jurisdiction is absolutely controlled by the local government that created it.

In this case, the zoning board was abundantly referred to in the body of the petition. It was obviously clear that the petition arose out of a decision made by the board of zoning appeals.

The statutory command is certainly clear however, and my recommendation is to file against the city, "acting by and through" it's board of zoning appeals, or planning commission, or whatever other administrative body may have made the contested decision. It's not absolutely clear to me that this is appropriate under the terms of the statute but at least in this way the board is named as a respondent/defendant.

When I first started practicing law, many attorneys would simply name the individual members of the administrative body in order to avoid the problems with jurisdiction over a board which was largely nonexistent. The individual members of the board were certainly capable of being sued and perhaps this is another workaround that is still viable.

Finally, consider whether the city Council must be named as a respondent or whether you can simply sue the city in its own right in a case which is appealed from a decision of the city Council. For example, many planned unit development ordinances require that the city Council approve the development at some point in the process, and frequently this is the most difficult aspect of the administrative procedure. If the city Council votes down the planned unit development even though the applicant meets all the requirements, there is a strong argument that the city Council decision should be reversed on appeal to a court of law. Suppose the appeal is filed suing only the city, but not the city Council. Does this comply with the provisions of the statute?

The answers are pretty hard to come by. And to lose the right to appeal a decision such as this based on the hypertechnical requirements of the certiorari statutes, is clearly unfortunate. Tennessee needs to have a separate land use review act which would clarify the process, make it simpler, easier to understand, and eliminate the hypertechnical pleading requirements of the common law writ of certiorari.

Thursday, July 18, 2019

Knick v Township of Scott

This is an interesting Supreme Court case which can be summarized very quickly: the court overrules the well-known Williamson County v Hamilton Bank case, 473 US 172 (1985), insofar as that case required a property owner claiming a violation of his Fifth Amendment rights by way of a taking of his property, does not now need to file in state court prior to pursuing his or her federal rights.

As you will probably recall, the Williamson County case made it harder to get to federal court in two ways, by first requiring that the property owner apply either to the zoning board, the planning commission, or any other administrative body, for any administrative relief which might be available, and by second, requiring that the lawsuit be filed in state court before proceeding to federal court. The latter requirement however was all-encompassing inasmuch as once a state court ruled adversely with regard to the federal claim, it was res judicata in federal court and the property owner was out of luck.

This decision, from my standpoint, simply allows a property owner to proceed in federal court without the necessity of filing in state court first. In Tennessee, many property owners might choose to go to state court anyway. I don't think this case alters the landscape in any significant way, but it does have the virtue of making takings claims somewhat simpler, and more sense to go.