In another case involving the complexities of the common law writ of certiorari, an appeal was taken from a decision of the municipal board of zoning appeals granting a variance. At the board hearing, the codes director checked the box indicating that the variance had been approved, but without any signature. At the next meeting, on October 15, 2018, the board approved the minutes from the previous month.
Two companies that opposed the variance filed a petition for writ of certiorari on November 16, 2018 and an amended petition with a sworn verification on December 5, 2018 (presumably the original petition lacked a verified signature and so was deficient in that regard). The defendants filed a motion to dismiss for lack of subject matter jurisdiction arguing that the checked box was a sufficient written confirmation of the action of the zoning board such that the appeal should have been taken within 60 days of the original meeting at which the decision was made (September 17, 2018). Of course, Tenn. Code. Ann. § 27-9-102 requires that the appeal be filed within 60 days of the decision.
The question presented here is whether the decision was appropriately memorialized by the checked box, or by the minutes adopted on October 15. If the former, then more than 60 days had gone by since the box was checked; if the latter, the appeal was timely filed.
The trial court granted the motion to dismiss but the Tennessee Court of Appeals reversed concluding that the checked box was insufficient to begin the 60 day statute of limitations.
The defendants relied on Advanced Sales v Wilson County, 1999 WL 336305 (Tenn. App., May 28, 1999) as being very similar factually. This is a case decided by my good friend Judge Ben Cantrell, and even though I have only the highest respect for the judge and most of his decisions while on the bench, this is one that I’ve never been very comfortable with. In that case, the petition submitted to the zoning board itself had a section specifically set aside to show what action was taken by the board. In that case, the board secretary circled the entry “Relief Denied” and then signed the form. The plaintiffs argued that the signature of the board secretary in Advanced Sales clearly distinguish the facts in that case from the case under review. There was no signature of anyone on the form only a checked box.
The plaintiffs argued in turn that the most similar case was McMurray Drive Area Homeowners Association versus Metro Nashville, 2006 WL 1026428 (Tenn. App. April 18, 2006), where an administrative assistant took notes during the course of the meeting and recorded the motions, votes and decisions, but again without any signature. In the McMurray Drive case, the Court of Appeals distinguished those notes from the actual minutes approved by the Planning Commission which were not only signed by both the Chair and the Secretary of the commission, but also indicated the resolution number and the specific conditions of the approval. Although the trial court had granted the motion to dismiss, ruling that the administrative assistant’s notes were sufficient, the Court of Appeals reversed and remanded.
And so too did the Court of Appeals in this case. Without a signature, or perhaps without some other indication of authenticity, a simple checked box is insufficient to treat as a final entry. This is perhaps particularly true when a month later, the official minutes were adopted by the Board of Zoning Appeals.
Although I have said it many, many times now, it bears repeating once again: if you are appealing an administrative decision such as the zoning board decision in this case, the petition must be verified and it is always best to file within 60 days of the date of the hearing where the decision was announced. In this case, the original petition was filed on the 60th day after the original hearing, but unfortunately, the attorneys evidently had not remembered to verify the allegations of the petition. Fortunately, because the minutes were not approved until the next meeting, they had additional time to obtain a verified signature and to file the amended petition.
Finally, let me make one other note: why is it important that a verified petition be filed? The short and simple answer to that is that from a policy standpoint it is not important. The common law writ of certiorari is an antiquated form of pleading which should be retired, at least in the context of land use planning law cases. But many cities oppose going to a different form of an appeal and a land-use planning case, because it would deprive the city of the opportunity to dismiss many cases where the technical pleading rules have not been met. I can’t emphasize too much how unfair this is: property owners get thrown out of court because legal counsel makes a mistake filing a pleading, either too late, or unverified, when the verification requirement simply is unnecessary. Most of the cases which were appealed from zoning boards, planning commissions, and municipal legislative bodies do not involve significant disputes as to the facts. Thus verification of those facts is unnecessary. Most land-use planning cases involve questions of how the law applies to those facts and requiring verification does not advance the decision-making process with regard to the interpretation of the law one iota.
In any event, if you represent a client interested in appealing a land-use decision, be certain that the petition for writ of certiorari is verified properly, and that is filed within 60 days of the decision of the administrative tribunal. The best procedure is to file within 60 days of the meeting where the decision was announced without waiting for minute entries or the entry of some kind of an order.
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