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.