Monday, September 7, 2020

International Outdoor v City of Troy (6th Cir. September 4, 2020)

My last entry had to do with billboards, dealing with an interesting case from the Fifth Circuit Court of Appeals.  in this case is similar. I should mention also that both cases were brought to my attention by Sam Edwards, who has been really scouring the advance sheets for new and interesting cases.

International Outdoor v City of Troy, decided by the Sixth Circuit Court of Appeals, issued just yesterday, September 4, 2020, parallels the case we reviewed in the last entry. In this case, the trial court dismissed the a claim of prior restraint made by the sign company against the city because the claim had been mooted out as a result of some changes made to the sign regulations during the pendency of the litigation. I will not discuss the mootness issues although they are certainly interesting.

More interesting however in the context of this blog is the impact of Reed v Town of Gilbert, 576 US 155 (2015). I won’t get into the factual allegations beyond saying that the sign company alleged in particular that some signs were exempted from having to apply for a permit at all (including flags, temporary signs, real estate signs, garage, estate or yard sale signs, noncommercial and political signs, holiday or seasonal signs and construction signs were all included). In a footnote, the Sixth Circuit indicated that taking the complaint in the light most favorable to the plaintiff, the sign company alleged facts showing that it incurred costs that other applicants were exempt from because its proposed signs were not afforded the same favored treatment under the ordinance. From the standpoint of the Sixth Circuit, this conferred standing.

As I mentioned in the previous entry, because the Reed court concluded that “strict scrutiny applies either when a law is content based on its face or when the purpose and justification for the law are content based, a court must evaluate each question before concludes that the law is content neutral and thus subject to a lower level of scrutiny.” Reed at 166. The Sixth Circuit concluded that intermediate scrutiny generally applicable to commercial speech applies only to a speech regulation that is content neutral on its face. That is, a regulation of commercial speech that is not content neutral is still subject to strict scrutiny under Reed.

Much as the Fifth Circuit did in the Reagan National Advertising case discussed in the last entry, the Sixth Circuit then turned to look at several other circuit court decisions many of which concluded that the intermediate standard applicable to commercial speech still applied. See Central Hudson v Public Service Commission, 447 US 557 (1980). The Sixth Circuit distinguished many of those cases, and also pointed to Barr v American Association of Political Consultants, 140 S Ct 2335 (2020) applied strict scrutiny to a content-based restriction on robo calls to cell phones. In addition, the Sixth Circuit pointed out its own decision in Wagoner v City of Garfield Heights, 577 F. Appx 488 (6th Cir. 2014), cert granted and judgment vacated, 135 S Ct 2888 (2015). The Sixth Circuit had applied a practical test for assessing content neutrality concluding that in the Wagoner case, the city had satisfied the intermediate scrutiny applicable to such regulations. The Supreme Court did not agree, reversed, and remanded for consideration of Reed. This reversal by the Supreme Court had the act of solidifying the Sixth Circuit's conclusion that in the absence of content neutrality, the strict scrutiny test must apply.

In addition, the court also referenced its decision in Thomas v Bright, 937 F. 3d 721 (6th Cir. 2019), also discussed in the prior post, in which the owner of billboards in Tennessee challenged the on-premise restrictions found in the Tennessee Billboard Act. The Sixth Circuit invalidated the act as being contrary to Reed.

While the court acknowledged that both Wagoner and Thomas concerned non-commercial speech, "the regulations in both cases were deemed unconstitutional due to their content-based nature: they required an inspection of the message to determine whether it was political, as in Wagoner, or related to any on-premises activity, as in Thomas, in order to determine the sign’s permissibility under the regulations.”

In this case, the District Court concluded that the speech at issue, erecting advertising billboards, was commercial speech and therefore not subject to strict scrutiny. Furthermore the District Court held that the ordinance provisions satisfied intermediate scrutiny under Central Hudson.

But the Sixth Circuit reversed because it felt that the district court applied the wrong standard. The Sign Ordinance imposed a content-based restriction by exempting certain types of messages from the permitting requirements, such as flags and temporary signs and the other signs I’ve listed above. Thus, the ordinance regulated both commercial and non-commercial speech but treated them differently, requiring the city to consider the content of the message before deciding which treatment should be afforded. For content-based restrictions on speech, strict scrutiny applies, not intermediate scrutiny.

Accordingly, the Sixth Circuit reversed the decision of the District Court dismissing the plaintiff’s claims against the content-based restrictions found in the sign regulations, and remanded for consideration of the Reed analysis.

Okay, then the question here is how often do you see such distinctions between flags, real estate signs construction signs, yard sale signs, holiday signs political signs where such signs are either required to obtain no permit, or have some lesser burden in obtaining permission. Fairly frequently it seems to me. Under this Sixth Circuit case, it seems that such differentiation may be entirely unlawful.

Sunday, September 6, 2020

Reagan National Advertising v City of Austin, 2020 U.S. App. LEXIS 27276 (5th Cir. Aug. 25, 2020)

This interesting case is yet another development arising out of the Supreme Court decision in Reed v Town of Gilbert, 576 US 155 (2015). Two companies, both Reagan and Lamar Sign, sued the city when applications submitted to digitize off-premise signs were denied. Plaintiffs argued that the Sign Code distinction between on-premise and off-premise signs was a violation of the First Amendment. The lower court found in favor of the city, but the Fifth Circuit reversed, concluding that the distinction was content based, subject to strict scrutiny, and that there was no compelling governmental interest sufficient to justify the regulation.

The city Sign Code provided for the continuation of nonconforming off-premise signs but sign owners were not permitted to “change the method or technology used to convey a message” on an off-premise non-conforming sign. At the same time, the Sign Code permitted on-premise signs to be “electronically controlled changeable copy signs.” As a result, on-premise nondigital signs can be digitized, but off-premise nondigital signs cannot be. The stated purpose of the Sign Code was to protect the aesthetic value of the city and to protect public safety.

The trial court denied plaintiff’s request for declaratory judgment, concluded that the Sign Code was content neutral and satisfied intermediate scrutiny.

The first interesting aspect of this case has to do with the city’s argument that the case was moot because the city adopted new sign provisions after the lawsuit was filed. Plaintiffs argued that they filed their applications prior to the amendments and that under Texas state law, their applications for permits must be reviewed based on the regulations in effect at the time their applications were filed. See for example, Texas Local Government Code Annotated §245002 (a) (1). See also Reagan National Advertising of Austin v City of Cedar Park, 387 F Supp 3d 703, 706 n. 3 (WD Texas 2019) (“Texas law requires the permit applications be evaluated under the law as it existed at the time they were submitted, rather than under the new, revised sign code.”). The Fifth Circuit agreed with the plaintiffs.

Notice the distinction here between Texas and Tennessee law. It appears that under Tennessee law, although it’s not entirely clear, that there is no protection based simply on the application to the city for a permit; rather, the Tennessee Vested Property Rights Act, Tenn. Code Ann. § 13-4-310, only protects from and after the time that a development plan has been approved (not applied for) or that a building permit has been issued. So if the regulations change during the pendency of an application, theoretically the applicant must comply with the new regulations under Tennessee law.

The next issue before the court was whether the Sign Code was content-based or content neutral. Naturally, if the regulations are content neutral, then the intermediate level of scrutiny applicable to commercial speech would apply; otherwise, strict scrutiny would apply to any content-based regulation.

The court first discussed the Supreme Court decision in Reed and noted that while the Reed decision did not purport to be creating new law, the federal courts have generally recognized that Reed announced a "sea change" in the traditional test for content neutrality. The court cited a number of other circuit opinions, including the Sixth Circuit: Wagoner v City of Garfield Heights, 675 F Appx 599 (6th Cir. 2017), and perhaps more interestingly, Thomas v. Bright, 937 F.3d 721, 737 (6th Cir. 2019), cert. denied, 2020 U.S. LEXIS 3558, 2020 WL 3865256 (July 9, 2020) which held that Tennessee's Billboard Regulation and Control Act of 1972, Tenn. Code Ann. §§ 54-21-101, et seq., "is not narrowly tailored to further a compelling interest and thus is an unconstitutional restriction on non-commercial speech." As many of you are aware, this decision and frankly the lower court decision which preceded it, seemed startling. Concluding that the entire regulatory scheme for controlling outdoor advertising signs was unconstitutional seemed, at least at the time, something of a stretch.

The court concluded that the Supreme Court decision in Reed meant that if a law is content based on its face, then it is subject to strict scrutiny regardless of the government’s content-neutral justification. See Reed, 576 US at 165. One difficulty with this approach is that Justice Alito in Reed concurred and specifically noted that regulations distinguishing between on-premise and off-premise signs should not be considered content-based. The Fifth Circuit, looking to the Sixth Circuit, observed that a restriction distinguishing between on-and off-premise signs could be content-neutral. A regulation that defines off-premise as any sign within 500 feet of a building is content-neutral. But if the off premise/on-premise distinction hinges on the content of the message, it is not a content-neutral restriction.

Thus, the Austin Sign Code must be evaluated under the clear rules set forth by the Reed majority. That makes the rest of the case fairly simple. The Sign Code determines on- versus off-premise by reading the sign and asking if it advertises a business, activity, product, or service not located on the site where the sign is installed. If the product or service is located on the same site than the sign is on-premise; otherwise it is off-premise.

In the Thomas v Bright case, the Sixth Circuit considered an almost identical question. Of course, the Sixth Circuit concluded that state officials were making content-based decisions in order to determine whether the outdoor advertising sign was on-premise or off-premise and invalidated the Tennessee Billboard Regulation and Control Act of 1972. A fairly monumental conclusion.

The Fifth Circuit mentioned that other circuits have reached different conclusions including the DC Circuit in Act Now to Stop War v District of Columbia, 846 F. 3d 391, 404 (DC Circuit 2017). In that case, the DC court reasoned that making a “cursory examination” of sign to determine whether it’s on- or off-premise did not render the statute or regulation content-based.

The Fifth Circuit disagreed. First, the court maintained that there are many cursory examinations which would simply fail. For example, suppose the regulation prevented a political sign for Candidate A, but permitted signs for Candidate B. Surely that would only take a cursory examination but also most assuredly, it would be facially unconstitutional. The court went on to examine this concept a little further, selecting several hypotheticals:

Digital sign in front yard that says: “Sally makes quilts here and sells them at 3200 Main Street”

Digital sign in the front yard that says “we love hamburgers” and contains the logo and address to a Whataburger location 2 miles away

How can one determine whether a digital billboard that says “God loves you” is on- or off- premise?

You get the general idea. The court next considered whether the commercial speech exception applied under the circumstances of this case and concluded that it did not. The court essentially held just because most billboards display commercial messages does not mean that the sign regulation does not apply with equal force to both commercial and noncommercial messages. For example, recall that the Sixth Circuit decision involved billboards which were for the most part displaying noncommercial messages.

Finally, the purported justifications for the Sign Code provisions, protecting the aesthetic values and public safety, simply don’t hold up under the strict scrutiny test. There is no proof or argument that one type of sign was a greater eyesore than the other; furthermore, there was no proof that an off-premise digital sign posed a greater risk to public safety than in on-premise digital sign. As a result the relevant provisions of the Sign Code were declared unconstitutional as violative of the First Amendment.

I’d encourage you to read especially the Sixth Circuit decision in Thomas as well as this Fifth Circuit decision. They are quite interesting. Even more important is attempting to determine what impact this has on local land use planning regulations. Most zoning sign regulations have some dependence on the on- versus off-site distinction. In light of these cases, are those sign regulations still valid?

My thanks to my old friend, Sam Edwards, who told me about this very interesting case. 

 

Monday, August 10, 2020

Automatic Approval Provisions, State and Local: Which Governs?

Both the state enabling legislation and local ordinances and regulations often have provisions which mandate automatic approval if the appropriate board or commission has not acted within a specific period of time. Recently, I was involved in some litigation in which the question of whether a local provision, adopted several decades ago, applied to the development or whether the state statute, which had been changed in the meantime, applied. Ultimately, it was unnecessary to decide this issue but remains an interesting question. Many local ordinances fail to update these provisions as the state changes the language of the statutes. This may be most often caused by the relatively frequent changes in the state legislation. Sometimes it's hard to keep up even if you practice in this area of the law every day.

Perhaps an example would be helpful. Currently, Tenn. Code Ann. § 13-4-304, provides that a municipal planning commission "shall approve or disapprove a plat within 60 days after the initial consideration of the plat by the commission meeting in a regularly scheduled session…"  The local regulation reads as follows:
The Planning Commission shall hold a hearing as required by Section 13-3-404, Tennessee Code, on each final plat brought before it. The Planning Commission shall, within sixty (60) days after submission of the plat, approve, modify, or disapprove the final subdivision plat by resolution, which shall set forth in detail any conditions to which the approval is subject, or reasons for disapproval. In no event shall the period of time stipulated by the Planning Commission for completion of required improvements exceed one (1) year from the date of final resolution. 
Failure of the Planning Commission to act upon a plat within the prescribed time shall be deemed approval of the plat, and in such event, a certificate of approval, entitling the subdivider to proceed as specified in Subsection 2-104.4 and Section 2-105, of these regulations, shall be issued, upon demand, by the secretary of the Planning Commission. The applicant, however, may agree to an extension of the time for Planning Commission review.
 Notice the difference in the highlighted provisions. The state statute now requires that the plat be approved or disapproved within 60 days after an initial consideration. The local regulation however requires approval or disapproval within 60 days of submission of the plat. Obviously, the plat might be submitted to the planning staff as early as, for example, 45 days before the planning commission hearing. Thus, the planning commission would have to make a decision almost right away without any extension, unless the applicant agreed.

Does the local regulation apply or does the state statute apply? So far as I know there is no case law here in Tennessee concerning this issue and while I have seen some law review articles reviewing the automatic approval provisions, I have never seen this particular issue addressed. My own guess is that the local regulation would prevail. The Tennessee Municipal Planning Statutes, particularly Tenn. Code Ann. § 13-4-303, make clear that the planning commission must adopt regulations governing the subdivision of land within the jurisdiction. There wouldn't seem to be any reason why the planning commission could not make the timeline for approval of subdivision plats more strict. On the other hand, Tenn. Code Ann. § 13-4-304 begins by saying "the commission shall approve or disapprove a plat within 60 days after the initial consideration of the plat by the commission…". The language there is not merely enabling, but directory. 

While it's hard to know the final answer, the authorization to grant variances under Tennessee state law is also directory. Tenn. Code Ann. § 13-7-207 (3). It seems however that the local legislative body could adopt additional standards for variances so long as they don't outright conflict with state law and the adoption of more restrictive standards would seem to be appropriate. Some commentators have argued that any change by local authorities is ultra vires the enabling legislation, but that seems unduly restrictive. Many local governments add restrictions to the variance standards found in the statute. For example, many ordinances provide that financial returns may not be the sole consideration for granting a variance, and/or a local provision might mandate that the hardship must not be self-created. These restrictions have been recognized by Tennessee courts in construing the statute, but are nowhere to be found in the express provisions of the variance statute. It seems however appropriate that the local government could impose additional provisions which did not conflict.

Following that chain of thought, it would seem therefore that a subdivision regulation adopted which is more restrictive than provided by the statutory authorization itself would also be appropriate. It is interesting question, and perhaps some one of these days, will get an appellate court opinion providing an answer.


Tuesday, August 4, 2020

NBI: List of Recent Cases

List of Recent Cases

National Business Institute Seminar:
Land Use and Zoning: Working with Local Governments

Nashville, Tennessee
August 5, 2020


Hirt v Metro Nashville, 542 S.W. 3d 524 (Tenn. App. 2016) (Hirt I); 2020 WL 1983766 (Hirt II) (petition not verified/res judicata)

Keith v Maury County BZA, 2019 WL 3946171 (Tenn. App. 2019) (petition not verified)

Cobble v Greene County, 2019 WL 3450930 (Tenn. App. 2019); see also McClurkan v Metro BZA, 565 SW 2d 495 (Tenn. App. 1977) (leading variance cases in Tennessee)

Precision Homes v Metro Nashville, 2019 WL 2395946 (Tenn. App. 2019) (stormwater management variance)

Owen Trust v Germantown, 2019 WL 2233886 (Tenn. App. 2019) (appeal from Planning Commission decision regarding zoning change)

Venture Holdings v Metro BZA, 585 S.W. 3d 409 (Tenn. App. 2019) (conditional use permit denied and upheld on appeal)

Ward v Metro Nashville, 2019 WL 1753053 (Tenn. App. 2019) (Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407)

Home Builders v Metro Nashville, 2019 WL 369271 (Tenn. App. 2019) (affordable housing)

Roland Digital Media v City of Livingston, 2019 WL 117582 (Tenn. App. 2019) (petition deficient for failure to name board as party)

Dunlap v Tennessee Board of Professional Responsibility, 595 S.W. 3d 593 (Tenn. 2020) (ethically challenged behavior in context of land use case)

Friday, July 31, 2020

Keith v Maury County Board of Zoning Appeals

This case will take little by way of analysis. Once again, we have an appeal from a decision of a local Board of Zoning Appeals, styled a petition for writ of certiorari, but which is not verified, that is, sworn to by the petitioner.

The law is clear: in the absence of verification by the petitioner within 60 days of the decision of the local board or commission, the local courts have no jurisdiction to entertain the claim. Thus it was in this case.

I have often lamented this requirement feeling that it is totally unnecessary and should be deleted by the simple expedient of adopting a new state procedure for appealing land-use decisions. Many other states have done this. I attempted to introduce legislation a few years back to accomplish this result, but it seems that there are a number of large cities which have some success in dismissing a number of cases which are not verified. Thus, there was opposition to the idea of doing away with the requirement.

Obviously, if the verification requirement added something to the process, that would be one thing. But in these cases, almost all the facts are known to everyone. Rarely is there any dispute about the facts in cases of this type. The real question is whether the facts as stated allow for the issuance of a variance, conditional use permit, or other relief which may be provided by the local zoning ordinance. The verification requirement has no impact on that question, and legislation allowing for land-use appeals without the verification requirement should be adopted by the Tennessee General Assembly.

Having said that, the zoning board decision in this case was most likely correct. The applicants were attempting to engage in activities which were not permitted by the zoning ordinance at their property; the zoning administrator notified them of the violation and they attempted to appeal his decision unsuccessfully. Most likely, even if the court had heard the case, it would have ruled against them anyway.

Thursday, July 30, 2020

Whitson v La Vergne Board of Zoning Appeals

This interesting case, decided in May 2020, involves the issue of vested rights. A seemingly minor problem brought the case to court; the owners of a carwash applied for a building permit intending to convert the business to car sales. The permit was issued, indicating the ultimate intended use, and in fact, the planning director wrote a letter in order to facilitate approval by the Tennessee Motor Vehicle Commission for the business operation. The doors were replaced as provided for by the permit at a cost of approximately $14,000.

However, after operations began, the city notified the owner of the property that site plan approval had not been obtained as required. The property owner appealed to the board of zoning appeals which affirmed the decision requiring site plan approval.

The decision of the zoning board was appealed to the trial court which upheld the zoning board decision and the case was appealed to the Tennessee Court of Appeals arguing that the property owner had vested his rights in the use of the property and/or that the city was equitably estopped from enforcing the site plan requirement.

It is difficult to understand what the real issue might have been in this case. I am puzzled on two levels: first, why did the owner of the property not want to go through site plan review?* Even though, as I will mention below, site plan under these circumstances makes little sense, surely it would have been quicker and cheaper to go through site plan review instead of filing an appeal with the zoning board, appealing that adverse decision to trial court, and then appealing the trial court decision to the Tennessee Court of Appeals. I am left with the feeling that there was likely some dedication requirement which the applicant was trying to avoid.

Second, why is this case going through site plan review anyway and why is a public hearing necessary? Judge Bennett, writing for the court, cited §3.110 of the Zoning Ordinance for the proposition that applicants for a building permit must also submit scale drawings in conformance with the site plan provision. But here’s the full quote:
The purpose of this provision is to prevent undesirable site development which would unduly create inadequate circulation and unnecessary congestion; to obtain maximum convenience, safety, economy and identity in relation to adjacent sites; and to provide maximum flexibility for expansion, change in use and adapting to individual needs. Thus, applicants for building permits must submit scale drawings, according to the particular types of development proposals, to the La Vergne Municipal Planning Commission in accordance with the following procedures.
The first sentence of the quoted material makes clear that the purpose of site planning is to prevent undesirable site development basically to prevent inadequate circulation and unnecessary congestion onsite (and this is the best way to understand what site plan review is). But in this case, the building was to remain. There’s no evidence in the Court’s opinion that the building was being modified except by replacement of some doors. So, why is site plan necessary when the structures on the site are not being moved or otherwise changed? Site plan review under the circumstances seems totally unnecessary. Again, one wonders what was really going on.

For example, there is a requirement for sidewalks to be dedicated or an exaction to be paid in the site plan provisions. Perhaps the property owner balked at paying for sidewalks or dedicating the property necessary for sidewalks. This is understandable: in the case of a property where there is little or no change in the overall development, paying for sidewalks seems a violation of Nollan v California Coastal Commission, one of my favorite cases. I will have more to say about that in future posts.

Along the same lines regarding site plan review, the court drops a footnote on page 5, quoting the Director of Codes, as stating at the BZA hearing, that the codes department can’t authorize a change in use by issuing a building permit. But that dodges the real question: can the planning commission authorize a change in use by issuance of a site plan? Site planning should be zone district agnostic: that is, the Planning Commission doesn't get to consider whether the use is a good one or not. Many cities authorize changes in use merely by the issuance of a building permit and/or a site plan approved by Codes without a hearing. There is no requirement in most instances to go to a hearing before the Planning Commission for site plan review. A related question is why does site plan consideration require a public hearing? Approval of building construction plans is done by the codes employees without such a hearing usually; why is site planning different?

Now, it is understandable if there is new construction on the property. But based on my reading of the case, other than the replacement of the doors there was no new construction. Again, site plan review seems to have very little to do with this process. Certainly, something else must’ve been going on.

The actual analysis in the case is fairly straightforward.
As a general rule, the issuance of a building permit results in a vested right only when the permit was legally obtained, is valid in every respect, and was validly issued. Capps v. Metro. Gov’t of Nashville & Davidson County, 2008 WL 5427972, at *10 (Tenn. Ct. App. Dec. 31, 2008). 
Because site plan review was a prerequisite to the issuance of a building permit, the issuance of the building permit without Planning Commission approval was invalid and therefore the building permit itself was invalid. This rule is well accepted, at least up until 2015.

In 2015, Tennessee adopted the Tennessee Vested Property Rights Act, Tenn. Code Ann. § 13-4-310 (b)-(k). That act provides:
A vested property right shall be established with respect to any property upon the approval, by the local government in which the property is situated, of a … building permit allowing construction of a building where there is no need for prior approval of a preliminary development plan…”
Two observations on this language: first, site plan review in most communities does not qualify as a “preliminary development plan” as defined by the statute. So, a vested property right is established upon the issuance of a building permit.

The second observation concerns the real question in a case like this: whether it is protected by the Tennessee Vested Property Rights Act. Yes, we know that a building permit which was erroneously issued prior to 2015 basically is a nullity and accomplishes nothing. But given the legislative wording of the new act, does that same rule carryover? The act does not address this particular issue and so far, there’s been no case asking for resolution of the question. Frankly, I suspect that the same result obtains: that is that an invalidly issued permit is worthless and does not vest any rights at all. But, having said that, we knew that was the case before 2015; it would be nice to have a clarification by way of an interpretation of the new language in the new act. Is a building permit which is issued erroneously after the adoption of the Tennessee Vested Property Rights Act still null and void, or does the language quoted above from the act change the result? We will have to wait for another case to find out.

The next issue brought up in the case is the matter of equitable estoppel. Once again, this issue has been litigated many times. As the court noted, the doctrine of equitable estoppel in Tennessee does not apply generally to the acts of public officials or public agencies. So, the issuance of a building permit which was done wrongfully or erroneously, statements made by public officials to a building permittee, that they don’t need to get anything else or do anything else, do not help the permittee to win its case. And if you think about it for a few minutes, it makes perfect sense: if the person on the front desk who issues the building permit to the applicant, can make a mistake and issue a permit for commercial use in a residential district, or mistakenly represent to a building permit applicant that a commercial use may be used at such and such a location which just happens to be a residential district, in effect what has happened is that the codes employee has changed the zoning on the property without consideration not only of the supervisors in the codes administration, but also the members of the city council. Clearly, absent very unusual circumstances, the codes employee issuing the permit cannot bind the local government to something which has not been approved by the local legislative body.

This only serves to emphasize that an applicant seeking permission to build needs carefully to review the relevant regulations and make an independent determination concerning the validity of any requested permit. A mistake by the government won’t affect the government; it only will hinder the applicant’s plans.

This is a very interesting case, perhaps more for what it doesn’t say than for what it does.

*Addendum: Just as I was about to post this entry, I spoke with one of the attorneys involved in the case and evidently between the time of the issuance of the building permit and the time of the appeal to the zoning board, another car lot located in the same general area so that a distance requirement within the zoning ordinance was triggered preventing the use of the property as a car lot. That means that unless this petitioner could demonstrate vested rights, the newer car lot would prevent him from obtaining site plan approval. Again, this result would make much more sense if site plan review had been important under the circumstances of the case.