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)