tag:blogger.com,1999:blog-22232573187392519842024-03-12T22:25:17.541-05:00Tennessee Zoning & Land UseGeorge Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.comBlogger284125tag:blogger.com,1999:blog-2223257318739251984.post-87885857324886460142021-09-01T06:00:00.015-05:002021-09-01T06:00:00.191-05:00California: single-family zoning to duplex?California seems to be heading towards greater density and zoning regulations. The New York Times reported that it appears that legislation allowing duplex is on what ordinarily would’ve been single-family zoning lots will soon be past and change the potential outlook for single-family zoning in that state.<a href="https://www.smdailyjournal.com/news/local/single-family-zoning-could-soon-ease-in-california/article_c9250cf4-054a-11ec-8f7a-4ba554d766c2.html"> Take a look at this article.</a> While higher density in many of our urban areas is certainly a desirable result, and more suburban, let alone rural areas, it would seem to be unnecessary and most likely bound to attract vehement opposition.<div><br /></div><div><a href="https://www.blogger.com/blog/post/edit/2223257318739251984/7208249101892848192">As I mentioned in an earlier entry, i</a>n other urban areas, certainly Nashville, we seem to be headed in a somewhat different direction. When Nashville first adopted zoning back in the early part of the 20th century, all residential areas were permitted duplexes, that is, there were no single-family residential districts per se. Certainly you could have a single-family home but that’s only district would also allow a duplex.</div><div><br /></div><div>Over the last 40 or 50 years, we have moved in the other direction, adopting a series of new zoning district switch permit only single-family residences and exclude duplexes or more than one home on a single zone lot. </div><div><div><br /></div><div> </div></div>George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-29419082625393972782021-08-20T06:00:00.007-05:002021-08-20T09:40:53.777-05:00Hendersonville Short Term Rental Regulations<p> Last week, Judge Robert E. Lee Davies, appointed as a Special Judge, ruled that the short-term rental regulations in the city of Hendersonville were unconstitutional. The regulations are a little unusual in that they entirely preclude the use of short-term rentals in residential zoning districts. There have not been too many cases here in Middle Tennessee dealing with these short-term rental issues (other than in municipal courts). This may be a significant case as it heads up to the Tennessee Court of Appeals.</p><p>The other interesting aspect of the case is that while the court found that the short-term rental zoning regulations met the rational basis test, it concluded that the ability to lease, or short-term basis, property to others was a fundamental constitutional right, and applied the compelling governmental interest test concluding that the city did not demonstrate compliance with that heightened standard. I don't know of any other cases which have concluded that the right to lease property in this manner would be a fundamental constitutional right. I think it is unlikely on appeal that the Court of Appeals will agree with that proposition. In fact, since zoning laws so often impact property rights, concluding that some or all of zoning regulations have to comply with the strict scrutiny standard would lead to the invalidation of many zoning regulations across not only Tennessee but in any jurisdiction which reach that result. Just for an example, the subject property in this case is zoned residentially. That means that you can't lease it to a commercial or industrial use either. That means that the owner of the property can't use it for a commercial or industrial use. Is that a violation of any fundamental constitutional right? Both the US Supreme Court and the Tennessee Supreme Court have concluded that such regulations are entirely appropriate and meet the rational basis test.<br /></p><p>In fact, in the leading federal case, Euclid v Ambler Realty, the US Supreme Court spent several paragraphs detailing the harmful impacts of apartments on surrounding residential properties. While the court's view in that case is certainly antiquated by modern standards, some of the concerns articulated concerning long-term rentals are certainly now reflected in the concerns regarding short-term rentals.<br /></p><p>It seems likely that the Tennessee Court of Appeals would conclude that the rational basis test applies. For example, in Anderson v Metro Nashville, <span style="background-color: white;"><span style="font-family: inherit;">2018 WL 527104 (Tenn. App. 2018)</span><span style="color: #6d6e71; font-family: verdana; font-size: 12px;">, </span></span>the court concluded that a 3% cap on non-owner occupied short-term rentals was a monopoly but one which was justified because it "clearly b[ore] a legitimate relation to a valid end," basically the same test as the rational basis test. This does not necessarily mean that the Hendersonville short-term rental regulations would be upheld; while it is certainly unusual for a governmental regulation to be invalidated based on the rational basis test, the Court of Appeals could certainly so conclude. Having said that however, it would seem unlikely. </p><p><br /></p>George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-4387128033968257012021-08-17T06:00:00.001-05:002021-08-17T06:00:00.228-05:00Political Signs in the Front Yard<p> An interesting byproduct of the seemingly always intense political discussion of the last several years here in the United States, is the posting of political signs supporting one or the other candidate, and using profane language to attack the opposition. I’ve attached an example with some of the more extreme language blocked out.</p><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEibGiDFyPVA4MCbpdEx6Y-D_yitFAoiEU1sDTfbPh7tMub1OLazXzOezMxSRfBmxUIXjP-170Rs6ATUfXe3erB0Bt7XdAaXcuHqCHjG7PiHG0rLNcx5qe54M7V41AvngqxC5HrMVgugopc/s2000/new-jersey-anti-biden-sign-1.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="1333" data-original-width="2000" height="274" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEibGiDFyPVA4MCbpdEx6Y-D_yitFAoiEU1sDTfbPh7tMub1OLazXzOezMxSRfBmxUIXjP-170Rs6ATUfXe3erB0Bt7XdAaXcuHqCHjG7PiHG0rLNcx5qe54M7V41AvngqxC5HrMVgugopc/w412-h274/new-jersey-anti-biden-sign-1.jpg" width="412" /></a></div><br /><p>As you can imagine, these kinds of signs provoke heated responses from neighbors and passersby. In Roselle Park, New Jersey, the signs were in a residential front yard, not too far from a public school. Evidently the mayor received a number of phone calls and the codes official wound up writing a citation. The owner of the property lost in Municipal Court, but on appeal to Superior Court in New Jersey, the decision was reversed.</p><p>You may recall the profane language on a T-shirt in a courtroom in California, quite a few years ago, in Cohen v California, 403 US 15 (1971). In that case the United States Supreme Court found that the use of the profane language was within the protection of the First Amendment and the conviction was reversed.</p><p>Relying on that Supreme Court precedent, the Superior Court New Jersey also reversed the decision from the Municipal Court against the property owner. The use of the profane language was within the protections afforded by the First Amendment to the Federal Constitution.</p><p>There have been several these cases across the country, including one right here in Tennessee, in Munford. In that case, the minutes will attorney advised the city that the use of the language was protected and that there was no violation of the city codes. It’s good to see local counsel here in Tennessee getting it right!</p>George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-72082491018928481922021-04-05T06:00:00.001-05:002021-04-05T06:00:07.076-05:00Goodbye to Single-Family Zoning?<p> Berkeley California made news within the last week or so and announcing that it is planning to phase out zoning districts which allow only single-family residences. It appears as though they would simply amend the zoning regulations to allow other types of housing in those districts, but the possibility of eliminating single-family residential zoning can seem pretty fantastical. <a href="https://www.berkeleyside.com/2021/03/25/berkeley-single-family-zoning-city-council-general-plan-change" rel="nofollow">See a local news item here.</a></p><p>Several other jurisdictions across the country have also analysis similar efforts. Minneapolis culminated a multiyear effort to accomplish the same objective in the last year or two. <a href="https://tcf.org/content/report/minneapolis-ended-single-family-zoning/" rel="nofollow">Take a look here.</a> Other cities are considering <a href="https://www.wcnc.com/article/money/markets/real-estate/charlotte-single-family-zoning-ordinance/275-71e61941-2e39-4f0e-9235-8b3c2d0a903e" rel="nofollow">similar efforts.</a><br /></p><p>It is interesting to consider these efforts in the context of Nashville and other Tennessee cities. While I certainly don't expect that Nashville or for that matter, any of the other large cities here in Tennessee would consider eliminating single-family residential zoning, viewed in a historical context, there is an interesting twist. When I started practicing law in Nashville in 1979, and I clerked while I was in law school for the Metro legal department in 1978, there was no single-family zoning in the city. The least intensive zoning districts for residential (as opposed to agricultural) purposes, R40, allow both single-family and two-family dwellings on lots which had to be 40,000 square feet or larger. In fact, all of the zoning, R20, R15, R10 and so forth, allowed duplexes. <br /><br />I asked one of the planners who worked at the Metro Planning Commission at the time, Bob Pasley, why it was that these zoning districts which in other cities would have been single-family only, also allowed duplex residences. Bob wasn't quite sure, but indicated that it was a historical anomaly that had simply carried through from the 1920s when zoning first started in Nashville.<br /><br />Beginning in the early 80s, of movement towards what is now known as RS40 (and so on) began, so that duplexes could no longer be constructed in single-family residential areas. So, in an interesting way, the original zoning districts in Nashville did not permit single-family zoning but also allowed duplex residences; it wasn't until some 60 years after zoning began here, that the push for single-family only zoning districts began. Now the conversion is virtually complete. Most of the areas in town where you would envision single-family zoning have been changed to that type of designation.<br /><br />It's generally agreed by most planners that single-family zoning contributes to urban sprawl, and of course, in the Berkeley instance, questions concerning racial inequality have added to the push to eliminate such zoning. Nevertheless, it will probably be a long time before we see it here in Tennessee in any of the large cities. But it is interesting that zoning here in Nashville started off by allowing duplex residences in all or virtually all residential zoning districts. <br /></p>George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com2tag:blogger.com,1999:blog-2223257318739251984.post-5541144396562106452021-04-02T06:00:00.049-05:002021-04-02T06:00:00.197-05:00Granting Variances for Subdivisions<p> An amendment to the Tennessee Regional Planning Enabling Statutes was passed by the General Assembly in 2018, authorizing, without any explanation or definition, a regional planning commission to grant variances for subdivision applications. Tenn. Code. Ann. § 13-3-402(d). The language of the amendment is very simple although it may raise more questions than it answers:<br /></p><blockquote>A regional planning commission may grant variances to subdivision regulations, if such variances are adopted at a public meeting of the commission.</blockquote><p></p><p>There are no standards provided as to when variances might be appropriately granted; the only requirement appears to be that the variances must be approved at a public meeting, and since virtually all meetings of regional planning commissions are open to the public, that element should be easy to overcome.<br /><br />Are these variances supposed to be the same as the variances which a zoning board is empowered to grant? See Tenn. Code. Ann. § 13-7-109(3). No, because the variances which the zoning board may grant are to alleviate difficulties caused by the enforcement of zoning regulations, not subdivision regulations.<br /><br />But do the same standards apply? In order to obtain a zoning variance, the applicant must show that the property is exceptionally narrow, shallow, or shaped, or subject to exceptional topographic conditions or other extraordinary and exceptional situations or conditions. Are those requirements also applicable in the case of variances from subdivision regulations?<br /><br />It is impossible to tell. Perhaps the Planning Commission is supposed to adopt its own standards by which to judge whether a variance is appropriate. That would allow all kinds of different types of variances to be granted by different planning commissions across the state.<br /><br />I should mention that most Planning Commissions have over the last 20 years or so been granting variances to the subdivision regulations in any event. I assume that the statute was passed because somewhere in Tennessee a case was appealed and the local court may have concluded that the planning commission did not have the power to grant a variance since it was not enabled by state statute. I am sympathetic to that argument; from my perspective, planning commissions don't have any independent power which is not vested by a statute adopted by the General Assembly. That has not however stopped planning commissions from granting variances to the subdivision regulations.<br /><br />On the other hand, since the Planning Commissions pretty much adopt their own subdivision regulations, the members of the commissions would be in the best position to judge how those regulations should be administered and enforced, and if they feel that a variance is appropriate, perhaps that's not too much of a stretch.<br /><br />I always think back to the Hamilton Bank versus Williamson County Planning Commission case where the US Supreme Court at least seemed to imply that the planning commission itself could grant variances to their subdivision regulations and that one of the reasons that the case was not ripe for constitutional consideration was the fact that no variance had been applied for. But since planning commissions in Tennessee back then did not have any power to grant variances, at least not enabled by state statute, the Supreme Court's decision in that regard seemed a little amiss.<br /><br />In any event, this amendment is interesting to consider, and also to consider that a similar amendment was not passed regarding municipal planning commissions. Why not? Since the General Assembly saw fit to enable variances for regional planning commissions but not for municipal planning commissions, does that imply that municipal planning commissions do not have the power to grant such variances? It's hard to know. Certainly we should expect that drafting these statutory provisions would be held to a higher standard; if a variance is proposed for regional planning commission, wouldn't it make sense to check to see if the same provision would be appropriate in the context of municipal planning commissions?<br /><br />Frankly, from my standpoint, it's not clear to me that planning commissions of any type should be permitted to grant variances. But assuming that regional planning commissions are given the power, then surely municipal corporations should have been enabled to do so at the same time.<br /></p>George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-80160517484924535352021-03-31T06:00:00.007-05:002021-03-31T06:00:04.775-05:00More on Subdivisions: Hudson v Metro Planning Commission, 2020 WL 7255807 (Tenn. App. 2020)<p><i><a href="https://www.tncourts.gov/sites/default/files/hudson.elise_.opn_.pdf" rel="nofollow">Hudson</a></i> is another important case in the area of subdivisions, although it may leave more questions than it answers. The basic question presented to the court was whether the planning commission could deny a subdivision application because it was not consistent with the “harmonious development” of the municipality? Tenn. Code. Ann. § 13-4-303(a).</p><p>The subdivision was for a development of 193 single-family homes on 65 acres of land in Davidson County. The Planning Commission rather reluctantly granted approval in the face of significant public opposition, but only after encouragement both from the staff and from the municipal attorney based on compliance with all of the applicable Subdivision Regulations. The trial court found this encouragement to be inappropriate and reversed, essentially concluding that “harmonious development” allowed the Planning Commission to make decisions beyond the scope of the technical requirements of the Subdivision Regulations. On appeal, the Court of Appeals upheld the trial court, but reversed on the “harmonious development” argument, concluding that the plain language of the statute wasn’t consistent with the trial court’s holding. The statute, by the way, authorizes adoption of subdivision regulations which “may provide the harmonious development of the municipality and its environs…” Thus, whatever the subdivision regulations provide is assumed to promote the harmonious development of the municipality. The Planning Commission has no authority to go beyond the requirements of those Subdivision Regulations. The subdivision regulations themselves are a significantly important part of the process of obtaining subdivision approval.</p><p>So far so good. Most land use planning lawyers felt that that was the appropriate interpretation of the statute. The court however went on, noting that the Metro Subdivision Regulations required compliance with the “adopted General Plan, including its constituent elements, and the Major Street Plan.” It concluded that:</p><blockquote><p>the Planning Commission had the authority to determine whether the concept plan complied with the "adopted General Plan." Thus, the planning staff's description of the role of policy in the subdivision approval process was incomplete and led the commission members to discount potentially legitimate objections.</p></blockquote><p>Frankly, most land use lawyers in Tennessee have always assumed that the General or Comprehensive Plan did have some role to play in subdivision consideration. This is true even though Tennessee is not a “plan as law” state, that is, in most of our jurisdictions, the plan is only advisory and basically has no legal significance. See for example <a href="https://www.tncourts.gov/sites/default/files/OPINIONS/TCA/PDF/974/FAMILYG.pdf" rel="nofollow">Family Golf v Metro Nashville</a>, 964 S.W. 2d 254 (Tenn. App. 1997) (permission to appeal denied April 6, 1998) (Planning Commission recommendation against a zoning change based on the General Plan is overridden by two thirds majority of Metro Council).</p><p>But the question is what role does the plan actually play in the context of subdivision consideration? First, most plans are pretty ambiguous, reflecting the inability to see very far into the future. As a result, mandatory provisions in planning documents are less frequent than found within zoning regulations or subdivision regulations. This immediately causes a problem, because with regard to small details which might be ambiguous Tennessee law has always been that ambiguity is construed in favor of the property owner. Edwards v Allen, 216 S.W. 3d 278 (Tenn. 2007). Thus, if the General Plan is ambiguous, the Planning Commission must interpreted favorably to the property owner and that would likely mean approval of the subdivision application.</p><p>Second, and perhaps much more significantly, suppose the plan directly conflicts with adopted law in the community. So for example, suppose the General Plan in one part of a local municipality envisions the property as single-family residential but the local legislative body passes a zoning regulation which permits multifamily residential uses in that same area. Recall of course that the General Plan is not law, is not passed by any legislative body (only by the Planning Commission which is not elected), and is a vision for future development not some type of binding regulation.</p><p>Back to my hypothetical: if my client applies to the Planning Commission for approval of a site plan for a multifamily residential development, can the Planning Commission deny the application based on the General Plan? Many states these days have enacted statutory provisions which make the General Plan binding, usually because it gets adopted by the local legislative body. In most jurisdictions here in Tennessee, that does not happen (there is authority for it in the planning enabling statutes, but it has not been used frequently). The planning commission adopts the General Plan and it certifies the plan to the local legislative body but that body does not in turn adopt it as law. If the Planning Commission can deny approval of a development plan based on the General Plan contrary to the zoning regulations adopted by the local legislative body, then it would seem that the ultimate authority is now in the hands of the Planning Commission. Surely this cannot be correct.</p><p>Clearly in such instances, the Planning Commission's authority to deny a development cannot be based on the general plan. The local zoning regulations take precedence and if there’s a conflict between those regulations and the General Plan, the General Plan must give way.</p><p>Unfortunately, there is no case law in Tennessee discussing this issue whatsoever and with the recent decision in the <i><a href="https://www.tncourts.gov/sites/default/files/hudson.elise_.opn_.pdf" rel="nofollow">Hudson</a></i> case, it will surely be coming up more and more often. </p>George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-80031889827656600872021-03-27T06:00:00.005-05:002021-08-15T14:12:26.260-05:00Hearings on subdivision applications?<p> Just a quick entry today based on a Planning Commission meeting I was at earlier this week. After the staff presented my client's application for subdivision approval, including their comments and recommendations, the chair indicated that this was not a “public hearing” and that it would take a vote to waive the rules in order to allow public comment. I’m hoping that the chair misspoke but just in case there’s some misunderstanding, let me emphasize that while it may be that the hearing is not open to the public (don't misunderstand, the meeting is certainly open to the public but it may be that the statute does not require that the public be involved in the actual hearing; that is, members of the public may only be able to sit and watch although that certainly makes little sense), there certainly is a required hearing. And the basic definition of a hearing is that the applicant gets to make a presentation. The use of the word hearing in the statute also suggests that any people in support or opposition would also get to make comments about the appropriateness of the subdivision. In due course, the Planning Commission adopted a resolution waiving its rules and allowing the hearing, but let me emphasize: <span style="background-color: #fcff01;">a hearing is required by statute in Tennessee</span>.</p><p>In the case of a regional planning commission, Tenn. Code. Ann. § 13-3-404(a) provides that:</p><blockquote><p>Any plat submitted to the commission shall contain the name and address of a person to whom notice of hearing may be sent; and <span style="background-color: #fcff01;">no plat shall be acted upon by the commission without affording a hearing thereon,</span> notice of the time and place of which shall be sent by mail to the address not less than five days before the date fixed for such hearing.</p></blockquote><p>In the case of a municipal planning commission, Tenn. Code. Ann. § 13-4-304(c) provides that:</p><blockquote><p>Any plat submitted to the commission shall contain the name and address of a person to whom notice of hearing shall be sent; and <span style="background-color: #fcff01;">no plat shall be acted upon by the commission without affording a hearing thereon</span>, notice of the time and place of which shall be sent by mail to such address not less than five days before the date fixed for such hearing.</p></blockquote><p>As you can quite easily see, both statutory provisions require a hearing, although perhaps you might not call it a public hearing. It may be that when this legislation was passed, back in 1935, it was only anticipated that the applicant would be present to discuss the application with the members of the Planning Commission. However, since all Tennessee meeting such as this are open to the public, perhaps that distinction is not that meaningful at present.</p><p><span face="Lato, Helvetica, Arial, sans-serif" style="color: #373739; font-size: 14px;">The appellate courts have also noted this mandatory requirement. In a landmark decision issued just a few years ago, the Court of Appeals reviewed the subdivision process and remarked that a plat may not "be acted upon by the commission</span><span face="Lato, Helvetica, Arial, sans-serif" style="color: #373739; font-size: 14px;"> </span><span face="Lato, Helvetica, Arial, sans-serif" style="color: #373739; font-size: 14px;">without affording a </span><span class="SS_SH SS_prior SS_tu3" face="Lato, Helvetica, Arial, sans-serif" name="SH_3157636901" style="-webkit-font-smoothing: antialiased; background-attachment: initial; background-clip: initial; background-image: none; background-origin: initial; background-position: initial; background-repeat: initial; background-size: initial; border: 0px; color: #373739; font-size: 14px; font-stretch: inherit; font-variant-east-asian: inherit; font-variant-numeric: inherit; line-height: inherit; margin: 0px; padding: 0px; vertical-align: baseline;">hearing</span><span face="Lato, Helvetica, Arial, sans-serif" style="color: #373739; font-size: 14px;"> thereon." </span><a href="https://www.tncourts.gov/sites/default/files/saveruralfranklinv.williamsonco.opn_.pdf" rel="nofollow">Save Rural Franklin v Williamson County</a>, 2016 Tenn. App. Lexis 633,*11-12, 2016 WL 4523418 (Tenn. App. 2016).<br /></p><p>A further authority on this, although why anyone would need more I don’t know, is the Tennessee Planning Commissioner Handbook, published by the Tennessee Department of Economic & Community Development, Local Assistance Office, and primarily authored by my good friend and very capable planner, Bill Terry. The second edition is dated 2002. At page 34, we find the following:</p><blockquote><p>Another due process requirement applying to both regional and municipal planning commissions is the need to notify the applicant that a public hearing is to be held on the plat.</p></blockquote><p>Given the statutory directive, the remark by the Court of Appeals and the practical experience of a highly respected planner, I hope that there are not too many commissions which believe that a hearing on a subdivision plat is some type of privilege only permitted by special dispensation. A hearing on the plat is mandated by state law and the failure to give a hearing on the application for plat approval will certainly lead to quick reversal in any appeal.</p>George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-55165037111214628972021-03-25T06:00:00.034-05:002021-03-25T06:00:02.134-05:00Variances in Iowa: Observations Applicable to Tennessee<p> Earley v Board of Adjustment Cerro Gordo County, 2021 WL 744513 (Iowa February 26, 2021)</p><p>This very interesting case from the Iowa Supreme Court discusses the standards for area variances, and whether those are different from other types of variance requests. The court concludes that the same restrictive standards would apply and, from my perspective, this is ultimately the correct answer here in Tennessee as well.</p><p>This is a fairly typical variance request case. The property owners, Gregory and Lea Ann Saul, hired a contractor to build a pergola on the side of their home, covering a patio. The property is located in a single-family residential district, with a required 6 foot side yard setback. The pergola and patio are only 21 inches from the property line.</p><p>After construction, the local zoning officials informed the owners of the violation, a permit was applied for, denied, and a variance requested. Again, in typical fashion, the property owners were unable to demonstrate any unnecessary hardship. While the precise requirements for variance under Iowa law are different from those here in Tennessee, there was no proof of any unique physical feature or any other variance requirement.</p><p>Nevertheless, also a tradition in zoning variance cases, the members of the zoning board felt that the pergola “looked nice” and unanimously approved the variance, waving the penalty for building the pergola without a permit.</p><p>As you might expect, the neighboring property owner, Ms. Earley, appealed pursuant to a petition for writ of certiorari. The local court upheld the decision of the zoning board, and the Court of Appeals affirmed the District Court. The Iowa Supreme Court granted the application for further review.</p><p>First, the Iowa Supreme Court gives a nice summary of rules of thumb for variances. Variances should be granted sparingly and with great caution or in exceptional instances only. The board cannot amend or set aside the zoning ordinance under the guise of a variance. If an applicant does not make the required unnecessary hardship showing, granting a variance is an illegal act by the board.</p><p>Second, I’d like to emphasize that the standards for variances in Iowa, at least statutorily, are quite different from those here in Tennessee. The statute at issue in this case, Iowa Code §335.15 (3) provides:</p><blockquote><p>To authorize upon appeal, in specific cases, such variance from the terms of the ordinance as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.</p></blockquote><p>This language is verbatim the variance provision found in the Standard State Zoning Enabling Act promulgated by a blue ribbon committee working with Herbert Hoover’s Department of Commerce in the middle 20s, almost 100 years ago. As I have written elsewhere, the problem with this language is that it offers no real standards by which to judge whether an application for a variance should be granted or not. A number of courts, including the Iowa Supreme Court, have adopted an approach suggested by the New York Court of Appeals in Otto v Steinhilber, 282 NY 71, 24 NE 2d 851, 853 (1939). The New York Court articulated a three-part test requiring the applicant to show:</p><p>(1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone;</p><p>(2) the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood; and</p><p>(3) the use to be authorized by the variance will not alter the essential character of the locality.</p><p>Of course, as you read those requirements, it’s clear that the New York high court was considering a use variance rather than a bulk or area variance, the subject of the Iowa case. Further, while the second and third conditions make reasonable sense and in fact are to a large extent mirrored by the more specific Bettman model variance provision which we have here in Tennessee, the first criterion, asking if a reasonable return is possible, seems to me largely irrelevant. From my perspective, if there is some unusual physical feature of the property which prevents the applicant from utilizing some aspect of his property in a manner similar to what would be permitted on other properties in the same general area, then a variance should be granted, regardless of whether there is a reasonable return. That issue is a continuing debate in Tennessee as in other jurisdictions.</p><p>The Iowa Supreme Court made clear that it had adopted the New York standard in Deardorff v Board of Adjustment, 254 Iowa 380, 383-84, 118 N.W. 2d 78, 80 (1962). In that case, a variance which was granted to allow a greater height then permitted under the applicable zoning regulations was overturned by the Iowa Supreme Court, concluding that there was no demonstration of any unique physical feature justifying the relaxation of their zoning regulations in favor of that particular property owner.</p><p>In this case, the court observes that the Court of Appeals below concluded that a different standard should apply in the case of an area variance, that is, where some bulk regulation such as a side yard requirement, is the subject of the request. The court first reviewed the distinction between use variances and area variances:</p><p>A use variance permits the use of land for purposes other than those prescribed by the zoning ordinance, and is based on the standard of unnecessary hardship.” On the other hand, an area variance does not involve a use prohibited by the ordinance, but concerns a deviation from specific requirements such as height limitations, setback lines, size regulations and the like. </p><p>Relying on a law review article, <a href="https://ilr.law.uiowa.edu/online/volume-102/difficulties-standard-for-area-variances/" rel="nofollow">N. Williams Hines, <i>Difficulties Standard for Area Variances</i>, 102 Iowa Law Review Online 365, 366 (2018),</a> which noted that “notwithstanding the distinctly different purposes served by these two types of zoning variances, two-thirds of US states, including Iowa, apply the same strict requirements for granting them both,” the court found that to be a correct statement of the law.</p><p>The court felt that the rule of stare decisis required consistency in application of the standard. This is particularly true because the requirements for obtaining a variance are set by statute. The legislature presumably was aware of the court’s interpretation of the statute, and if the legislature had wanted to change that interpretation, it had only to change the language of the statute. After almost 60 years, no such amendment to the statutory provision had been made.</p><p>After clarifying the standards to be applied, the court applied those standards to this case. The application of the standards is largely immaterial to us here in Tennessee. However one interesting aspect, which comes up time and time again, is the fact that the property owners argued that their good faith completion of the illegal pergola was a factor which should augur in favor of allowing the variance to stand. The Supreme Court of Iowa indicated that it had repeatedly rejected these types of equitable considerations as immaterial to the statutory grounds authorizing a variance. The same is, and should be, the rule here in Tennessee.</p><p>The court reversed the decision granting the variance. While the standards for variances in Iowa are very different from those here in most jurisdictions in Tennessee, the case is highly instructive. The same kinds of issues arise time and time again before not only the courts in Iowa and Tennessee, but I dare say, across the vast majority states in the country as a whole.</p><p>As I finished this entry, I remembered an old case of mine, JD Biggs v Metro Board of Zoning Appeals, decided in the early 80s. In that case, it was a carport which was constructed <i>with</i> a permit, but the permit showed the required 5 foot side yard. As built, the carport was within 2 feet of the property line. The zoning board turned down the application for a variance, the trial court affirmed, and although I no longer have a copy of the case, I believe that the Tennessee Court of Appeals affirmed as well. I will try to upload a copy of the trial court opinion in the near future.</p><div><br /></div>George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-28812852288786353612021-03-22T06:00:00.001-05:002021-03-22T06:00:08.557-05:00The Agricultural Exemption: Jefferson County v Wilmoth (Tenn. App. 2021)<p>Jefferson County v Wilmoth Family Properties, Tennessee Court of Appeals, February 1, 2021</p><p>One of the most difficult questions arising in Tennessee land use cases is the enforceability of zoning regulations against agricultural activities within county government jurisdiction (the statutory exemptions for the most part do not apply to municipal governments). The Wilmoth case offers some clarification although the waters remain murky.</p><p>Let’s start by mentioning the statutory provisions which cause the difficulty in the first place. When the Tennessee Zoning Enabling Statutes were passed in 1935, the County legislation included a very significant agricultural exemption:</p><blockquote><p>This part shall not be construed as authorizing the requirement of building permits nor providing for any regulation of the erection, construction, or reconstruction of any building or other structure on lands now devoted to agricultural uses or which may hereafter be used for agricultural purposes, except on agricultural lands adjacent or in proximity to state federal-aid highways, public airports or public parks; provided, that such building or structure is incidental to the agricultural enterprise. Nor shall this chapter be construed as limiting or affecting in any way or controlling the agricultural uses of land.</p></blockquote><p>Tenn. Code. Ann. § 13-7-114 (a). In addition, years later, the General Assembly added another provision, which only serves to increase the confusion:</p><blockquote><p>Nothing in this part shall be construed as granting counties the power to prohibit or regulate normal agricultural activities.</p></blockquote><p>Tenn. Code. Ann. § 5-1-118(b). It is anybody’s guess why the second provision only relates to “normal agricultural activities” when the first essentially prohibits any control over presumably all “agricultural uses of land.” The distinction between the two statutes is not the subject of our story, but just an interesting sidelight. It should be mentioned here that the original statute was not mentioned in the Wilmoth opinion; presumably the attorneys may not have cited it to the court.</p><p>The Tennessee Supreme Court took a look at this area not too long ago in Shore v Maple Lane Farms, 411 S.W. 3d 405 (Tenn. 2013). While I would characterize the opinion as fairly liberal concerning the interpretation of the agricultural exemption, the court drew a line at entertainment activities and decided that such things as concerts and other entertainment simply were not part of agriculture.</p><p>Tennessee being the farming state that it is the General Assembly immediately went to work and defined the term agriculture in a way so as to include entertainment activities. Tenn. Code. Ann. § §1-3-105 and 43-1-113. Both of these sections are definitional and include the same language relating to agricultural activities.</p><p>The question in Wilmoth was whether this farm of approximately 30 acres in size where cattle has been sold for profit but at the time of the case, only nine cows and a bull or on the farm; farm also had 18 to 22 chickens which produced 400 to 600 eggs per month. But the main income producing aspect was an event venue, where various types of parties and wedding receptions were held. As you might guess, income from the farm related to what might be referred to as normal agricultural activities was only $6250 in 2019 whereas rental income for the venue events was approximate $40,000 more. Mr. Wilmoth, the farmer, testified in-depth concerning his time operating a farm and he indicated that he spent minimal time facilitating the event venue business; that most of his time was related to working on the farm. The County of course argued that Wilmoth was attempting to circumvent the zoning regulations by maintaining a token amount of agricultural activities which had no connection to the much more lucrative commercial event venue use. The County argued that the current use the property was not agricultural and thus it was not protected by either statutory provision.</p><p>The broadened statutory definition of agriculture passed by the General Assembly after the Supreme Court decision in Shore, reads as follows:</p><p>“Agriculture” means:</p><p>(i) The land, buildings and machinery used in the commercial production of farm products and nursery stock;</p><p>(ii) The activity carried on in connection with the commercial production of farm products and nursery stock;</p><p>(iii) Recreational and educational activities on land used for the commercial production of farm products and nursery stock; and</p><p>(iv) Entertainment activities conducted in conjunction with, but secondary to, commercial production of farm products and nursery stock, when such activities occur on land used for the commercial production of farm products and nursery stock;</p><p>Tenn. Code. Ann. § 1-3-105.</p><p>Neither the trial court nor the Court of Appeals felt that the weddings and other parties held at the event venue could be characterized as recreational or educational; however, to the extent that those activities were entertainment, conducted in conjunction with, but secondary to, the production of farm products, then the event venue would be protected by the agricultural exemptions.</p><p>As typically happens in these cases, Mr. Wilmoth, the farmer, testified that the property was offered as an event venue and that it was successful due to the aesthetic appearance of the farm and the farming operation itself, noting that the venue provided multiple photographic opportunities of general farm life.</p><p>The Court of Appeals concluded, like the trial court, “that the present use of the property is in keeping with the legislature’s obvious intent to allow the necessary supplementation of forming income with income from related activities as long as such activities are stopped secondary to the commercial production of farm products and nursery stock.” Accordingly, the trial court’s dismissal of the complaint was affirmed.</p><p>I’m confident that there will be more cases as time goes along. This certainly can be a difficult area of land use law. Many times the properties contested are fairly small, leading many people more familiar with larger farming operations to doubt the nature of the land use. In addition, as in the Wilmoth case, often, the farmer makes more money from the event venue than from his farming activities. Frankly, this is to be expected. First of all, farming is hard work, and it does not pay particularly well unless you are farming on a very large scale. There is skepticism built into the analysis by local zoning officials.</p><p>Second, it’s not terribly clear what the General Assembly intended to protect with the latest definitional changes. It’s also not exceptionally clear how the definitions are to be applied. Wilmoth certainly is a start, but more cases will be needed to fill in the blank spaces.</p><p>Before concluding, it is interesting to take a look at the US Census of Agriculture, the latest version of which was published in 2017. There are specific versions for each state as well as the entirety of the country, and a brief look at the Tennessee census is very interesting.</p><p>First, over the last 20 years, the number of farms in Tennessee has dropped from approximately 90,000 farms to approximately 70,000 farms. That may give a good indication as to why the Tennessee General Assembly is protective of agricultural activities. Further, the size of the farms is also instructive. In 2017, with approximately 70000 operating farms, almost 6000 of those farms were under 10 acres in size. Almost ½ of all the farms in Tennessee were under 50 acres in size (30,000 farms). Another 25,000 farms were under 180 acres in size. As you can immediately see, many of the farms in our state are not very large.</p><p>The next item that jumps out is the fact that almost 31,000 farms in Tennessee make less than $2500 a year. Another 27,000 farms make less than $25,000 a year. So, of the 70,000 farms in Tennessee, approximately 58,000 of them make very little money, and probably not enough to live on. Once again, these numbers may explain quite a bit. If the state of Tennessee wants to keep some semblance of farming alive, special protections for farmers and farming activities seem undoubtedly necessary.</p>George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-55374651340080295532020-12-23T06:00:00.003-06:002020-12-23T06:00:04.132-06:00More Public Duty Cases: Kimble and Lawson<p> The Tennessee Court of Appeals has, over the last week or so, decided a couple of cases involving the public duty doctrine here in Tennessee. Kimble v Dyer County involved a traffic accident where a tree had fallen across the highway blocking the westbound lane and the plaintiff sustained injuries when his vehicle collided with the tree. The weather was bad that evening which contributed to the accident.</p><p>In Lawson v Maryville City Schools, the plaintiff tripped and fell near the entrance to the Maryville High School on a defect in the sidewalk.</p><p>There was no liability in Kimble based on the application of the public duty doctrine, but the doctrine did not apply in Lawson.. We will discuss each case briefly and also turn to a consideration of an older case here in Tennessee where the public duty doctrine did not prevent the imposition of liability in the application of building code issues.</p><p>In Kimble, the highway where the accident took place was a state highway and so the county was not responsible for maintenance. However, since a sheriff’s deputy was alerted to the presence of the obstruction on the highway, and because he went to the place on the highway where the tree had fallen, and later left, the plaintiffs argued that there was a special duty owed to the plaintiff. As the Court of Appeals explained, the public duty doctrine is a common-law defense shielding public employees from suits for injuries caused by the employee’s breach of a duty owed to the public at large rather than to the individual plaintiff. It likewise shields local governments from such liability.</p><p>However, Tennessee recognizes (as do all states which apply the doctrine) an exception to this immunity where there’s a special relationship between the plaintiff and the public employee which might create a special duty more specific to the plaintiff than the duty owed by the employee to the public at large. Importantly, this special duty may arise when public officials affirmatively undertake to protect the plaintiff and the plaintiff relies upon that undertaking; or where a statute specifically provides for a cause of action against an official; or where the plaintiff alleges intentional, malicious, or reckless misconduct.</p><p>Kimble relied on the first and third exceptions arguing that there was a special duty of care and that by abandoning the scene of the accident without providing any warning of the downed tree, the deputy was reckless.</p><p>The first exception was disposed of easily. Relying on the Tennessee Supreme Court case Ezell v Cockrell, 902 S.W. 2d 394 (Tenn. 1995), where the doctrine was most recently addressed in comprehensive fashion, but which also involved a traffic accident, the court found no special duty of care existing between the deputy and the plaintiff because it could just have easily been other travelers on the highway. In other words, the duty was to the general public and not to the specific individual.</p><p>With regard to the allegation of reckless misconduct, the Court of Appeals found that the allegation that the deputy was reckless in failing to place some sign or signal of a hazardous situation did not rise to level of a gross or reckless deviation from the standard of reasonable care. This conclusion seems more difficult.</p><p>However, based on that conclusion, there was no liability on Dyer County.</p><p>Whereas the Kimble case I think is a close one, the public duty doctrine certainly should not apply in the Lawson case. As I mentioned above, Lawson tripped and fell outside the public high school. This was a public sidewalk. Therefore the provisions of the Tennessee Governmental Tort Liability Act, Tenn. Code. Ann. § 29-20-203 apply. If the government owns or controls the location which caused the injury and the location is defective or unsafe, and the government has constructive or actual notice of the condition, there is liability under the TGTLA. That is certainly the case in Lawson. Although the public duty doctrine survived passage of the tort liability act, with its enactment, the Tennessee General Assembly expressed its clear intent to limit the scope of the doctrine by removing immunity for certain types of claims including specifically the claim in the Lawson case: a claim based on ownership or control of a particular property and the failure to keep it in good condition. Therefore, in the Lawson case, the trial court’s order dismissing the case based on the public duty doctrine was reversed and the matter remanded for further proceedings.</p><p>Let’s look at the Kimble case from the perspective of the Lawson case. Where the deputy in Kimble knew of a hazardous condition, and yet didn’t take steps to protect the general public, should there not be liability just as there was in Lawson? Do the arcane provisions of the public duty doctrine justify immunizing the county in Kimble whereas the city in Lawson had to pay damages? Does the difference in conclusion between these two cases make much sense?</p><p>Let’s bring another case into this. In Ford v. New Greater Hyde Park Missionary Baptist Church, 2007 Tenn. App. Lexis 761, while a car containing a mother and her four children was parked next to a church in Memphis, the wall of the church adjacent to the car collapsed, crushing the car and killing four of the occupants. One of the children survived. Suit was brought against the city of Memphis and others. Memphis defended in part on the basis of public duty doctrine. This time, the gross or reckless misconduct prong of the special duty exception to the public duty doctrine applied:</p><p></p><blockquote><p>[The building inspector] reason to believe that the Church was in danger of imminent collapse. Nevertheless, Newson allowed the December 15, 2001 rehabilitation target date to pass without demanding an engineer's report on the structural integrity of the building or issuing a "Do Not Occupy" warning. After the rehabilitation target date passed, another seven months elapsed before the Church collapsed; in that time, the City took no protective action on a building that had been identified as possibly having serious structural problems. These factual allegations are sufficient to permit a finding that the City consciously disregarded a substantial and unjustifiable risk "of such a nature that its disregard constitutes a gross deviation" from the standard of ordinary care, and would therefore fall within the reckless misconduct prong of the special duty exception to the public duty doctrine. Therefore, to the extent that the Plaintiffs allege conduct by City officials that could be deemed reckless, the City is not immune from liability under the public duty doctrine.</p></blockquote><p>I will make two points with regard to the Ford case. First, it seems to me that making judgments about the relative structural stability of properties is difficult enough as it is, without the added impact of imposing tort liability on governmental inspectors. The TGTLA immunizes inspectors arising out of the failure to make an inspection, or by reason of making an inadequate or negligent inspection of any property. T.C.A. § 29-20-205(4). The court concluded that liability was not sought based on the inspection; the inspection had been done correctly. It was the subsequent enforcement of the code (or lack thereof) which led directly to liability. But isn’t the court being a little narrow about its interpretation of the TGTLA? The act not only immunizes governmental employees from negligent inspections, but also from the failure or refusal issued building permits and against claims of malicious prosecution and abuse of process. It certainly sounds as though the General Assembly intended to immunize governmental officials in this area of codes enforcement, which is a difficult realm of government enterprise under any circumstances.</p><p>The second point about the Ford case is to juxtapose it to Kimble. If the building inspector in Ford did a correct inspection, found the violations, concluded that there was imminent danger, but nevertheless failed to follow up and enforce the provisions of the code, does not that same series of actions apply to the deputy in Kimble? The deputy found the downed tree, recognized the danger posed, and yet nevertheless did not put up any signal indicating a hazardous condition and based on the complaint simply left that area the highway and the accident took place shortly thereafter. There does not seem to be much distinction between the two cases. So why is there liability on the codes inspector but not on the deputy?</p><p>From my perspective, the public duty doctrine, while it certainly enhances the potential defenses for various public officials including codes enforcement officials, is no substitute for clear and specific legislative provisions precluding liability against public officials acting in this area. </p><p><br /></p><p><br /></p><p><br /></p><p><br /></p>George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-49927115701395577842020-12-08T06:00:00.001-06:002020-12-08T06:00:02.244-06:00Griffin v. Bd. of Zoning Appeals for Rutherford Cty., 2020 Tenn. App. Lexis 429<p> This case involves a small business operating out of the owner’s home in Murfreesboro. After a zoning enforcement action was brought against the owner, he filed for a special exception to operate a major home-based business. The property is zoned residentially, is bordered by other single-family homes located in a cul-de-sac.</p><p>Approximately 20 neighbors appeared in opposition at the board of zoning appeals and based both on the neighbors’ testimony as well as the staff report, it appeared that a significant number of trucks and business vehicles operated from the residential property, that there was a considerable amount of noise both early in the morning and late evening, the number of employees and vehicles exceeded what was permitted by the specific conditions for the special exception, and the general incompatibility of this fairly significant business in a quiet residential neighborhood.</p><p>The zoning board denied the special exception for three reasons, first because of the general incompatibility of the neighborhood; its potential adverse effect on the neighborhood and finally because they were more employees and permitted by the specific conditions.</p><p>The trial court upheld the decision of the board of zoning appeals and the Court of Appeals affirmed.</p><p>This is a pretty simple case in that clearly the application did not comply with the specific conditions of the provisions in the ordinance relating to a major home-based business. However, I think it is important to distinguish between general conditions and specific conditions when dealing with a special exception. For the most part, general conditions are so general that it is difficult to apply them with any precision. That’s why at least one court in Tennessee has previously held that the general conditions are largely irrelevant in consideration of a special exception or conditional use permit case. In fact, the general conditions in the Rutherford County ordinance are pretty similar to virtually all other general conditions which I see herein the middle section of Tennessee and read as follows:</p><p>C. General Requirements</p><p>A special exception shall only be granted provided the Board makes specific findings that it:</p><p>1. Is so designed, located, and proposed to be operated so that the public health, safety and welfare will be protected;</p><p>2. Will not adversely affect other property in the area in which it is located;</p><p>3. Conforms to all applicable provisions of this ordinance for the district in which it is to be located and is necessary for public convenience in that location and if applicable, meets the specific standards below.</p><p>4. Shall be located so as to be compatible with the surrounding area and provide safety to those using the facility.</p><p>In this instance, the intensity of this home-based business clearly is incompatible with residential uses. It would also have an adverse effect on the other property in the area. But while that is true in this instance, in many cases, those two requirements are so vague as to prove impossible to apply. In most of the special exception cases I’ve tried over my many years in practice, those general conditions are simply not very helpful. Take a quick example. Suppose you have an unusual activity such as a landfill or a rock quarry. Are those ever compatible the surrounding area and will they always adversely affect other properties? Nevertheless, in a special exception case, the local legislative body has indicated that those types of uses can be in certain zoning districts subject to meeting the requirements associated with that special exception. To use general conditions that are so vague as to defy specific application simply begs for the zoning board to make decisions based not on specific requirements but on things that may have no relevance to the land use application.</p><p>On the other hand, the next section of the Rutherford County zoning ordinance provided a specific limit on the number of employees and on the number of business vehicles. The applicant was already in operation and had too many employees and too many vehicles. The application therefore did not comply and while it is certainly easy and seems reasonable to point to the fact that the general conditions appear also to be violated, it seems to me far better to emphasize the violation of the specific conditions contained within the ordinance.</p>George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-77001078369074208212020-12-07T10:07:00.000-06:002020-12-07T10:07:07.317-06:00Manchester Hotel v City of Manchester (Tenn. App. November 30, 2020)<p> 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.</p><p>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.</p><p>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.</p><p>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. </p><p>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.</p><p>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.</p><p>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.</p><p>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.</p><p>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.</p><p>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.</p>George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-71236675254434418072020-09-07T06:00:00.007-05:002020-09-07T06:00:09.163-05:00International Outdoor v City of Troy (6th Cir. September 4, 2020)<p>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.</p><p>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.</p><p>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.</p><p>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.</p><p>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.</p><p>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.</p><p>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.”</p><p>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.</p><p>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.</p><p>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.</p><p>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.</p>George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-74634441458353139262020-09-06T06:00:00.002-05:002020-09-06T06:00:00.122-05:00Reagan National Advertising v City of Austin, 2020 U.S. App. LEXIS 27276 (5th Cir. Aug. 25, 2020)<p>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.</p><p>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.</p><p>The trial court denied plaintiff’s request for declaratory judgment, concluded that the Sign Code was content neutral and satisfied intermediate scrutiny.</p><p>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.</p><p>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.</p><p>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.</p><p>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.</p><p>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.</p><p>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.</p><p>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.</p><p>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.</p><p>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:</p><p>●<span style="white-space: pre;"> </span>Digital sign in front yard that says: “Sally makes quilts here and sells them at 3200 Main Street”</p><p>●<span style="white-space: pre;"> </span>Digital sign in the front yard that says “we love hamburgers” and contains the logo and address to a Whataburger location 2 miles away</p><p>●<span style="white-space: pre;"> </span>How can one determine whether a digital billboard that says “God loves you” is on- or off- premise?</p><p>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.</p><p>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.</p><p>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?</p><p>My thanks to my old friend, Sam Edwards, who told me about this very interesting case. </p><p> </p>George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-82372633784325224362020-08-10T06:00:00.001-05:002020-08-10T06:00:00.291-05:00Automatic 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.<br /><br />Perhaps an example would be helpful. Currently, Tenn. Code Ann. § 13-4-304, provides that a municipal planning commission "<span style="background-color: #fcff01;">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</span>…" The local regulation reads as follows:<div><blockquote><div>The Planning Commission shall hold a hearing as required by Section 13-3-404, Tennessee Code, on each final plat brought before it. <span style="background-color: #fcff01;">The Planning Commission shall, within sixty (60) days after submission of the plat</span>, 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. </div></blockquote><blockquote><div>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.</div></blockquote><div> 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.</div><div><br /></div><div>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. </div><div><br /></div><div>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.<br /><br />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.<br /><br /><br /></div></div>George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-90685128344696531842020-08-04T06:00:00.000-05:002020-08-04T06:00:03.828-05:00NBI: List of Recent Cases<div style="text-align: center;">
<span style="font-size: large;">List of Recent Cases</span></div>
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<div style="text-align: center;">
National Business Institute Seminar:</div>
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Land Use and Zoning: Working with Local Governments</div>
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Nashville, Tennessee</div>
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August 5, 2020</div>
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Hirt v Metro Nashville, 542 S.W. 3d 524 (Tenn. App. 2016) (Hirt I); 2020 WL 1983766 (Hirt II) (petition not verified/res judicata)<br />
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Keith v Maury County BZA, 2019 WL 3946171 (Tenn. App. 2019) (petition not verified)<br />
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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)<br />
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Precision Homes v Metro Nashville, 2019 WL 2395946 (Tenn. App. 2019) (stormwater management variance)<br />
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Owen Trust v Germantown, 2019 WL 2233886 (Tenn. App. 2019) (appeal from Planning Commission decision regarding zoning change)<br />
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Venture Holdings v Metro BZA, 585 S.W. 3d 409 (Tenn. App. 2019) (conditional use permit denied and upheld on appeal)<br />
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Ward v Metro Nashville, 2019 WL 1753053 (Tenn. App. 2019) (Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. § 4-1-407)<br />
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Home Builders v Metro Nashville, 2019 WL 369271 (Tenn. App. 2019) (affordable housing)<br />
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Roland Digital Media v City of Livingston, 2019 WL 117582 (Tenn. App. 2019) (petition deficient for failure to name board as party)<br />
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Dunlap v Tennessee Board of Professional Responsibility, 595 S.W. 3d 593 (Tenn. 2020) (ethically challenged behavior in context of land use case)<br />
<br />George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-30258896261247120922020-07-31T06:00:00.000-05:002020-08-02T12:57:42.054-05:00Keith v Maury County Board of Zoning Appeals<a href="http://www.tncourts.gov/sites/default/files/keith.richar.opn_.pdf" target="_blank">This case will take little by way of analysis.</a> 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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-22814649802481358882020-07-30T06:00:00.000-05:002020-07-30T10:15:37.480-05:00Whitson v La Vergne Board of Zoning Appeals<a href="http://www.tncourts.gov/sites/default/files/whitson.cityoflavergne.opn_.pdf" target="_blank">This interesting case,</a> 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.<br />
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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.<br />
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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.<br />
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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.<br />
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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:<br />
<blockquote class="tr_bq" style="text-align: left;">
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.</blockquote>
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.<br />
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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 <a href="https://supreme.justia.com/cases/federal/us/483/825/#tab-opinion-1957267" target="_blank">Nollan v California Coastal Commission</a>, one of my favorite cases. I will have more to say about that in future posts.<br />
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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?<br />
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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.<br />
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The actual analysis in the case is fairly straightforward.<br />
<blockquote class="tr_bq">
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). </blockquote>
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.<br />
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In 2015, Tennessee adopted the Tennessee Vested Property Rights Act, Tenn. Code Ann. § 13-4-310 (b)-(k). That act provides:<br />
<blockquote class="tr_bq">
<span style="white-space: pre;"> </span>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…”</blockquote>
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.<br />
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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.<br />
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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.<br />
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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.<br />
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This is a very interesting case, perhaps more for what it doesn’t say than for what it does.<br />
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*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.<br />
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George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-30151241309164179422019-09-30T06:00:00.000-05:002019-09-30T06:00:00.947-05:00Tennessee 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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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).<br />
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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.<br />
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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.<br />
<br />George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-88266332725614471292019-09-27T06:00:00.000-05:002019-09-27T06:00:03.391-05:00Administrative Hearings by Legislative BodiesDellinger 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:<br />
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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.<br />
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N.C. Gen. Stat. § 160A-388(e)(2) (2017).<br />
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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.”<br />
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Dellinger v. Lincoln Cty., No. COA18-1080, 2019 WL 3115211, at *3 (N.C. Ct. App. July 16, 2019).<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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<br />
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As a result, the Court of Appeals reversed the decision of the lower court and ordered the issuance of the conditional use permit.<br />
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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.<br /><br />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.<br /><br />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.George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-105182279340928722019-07-20T06:00:00.000-05:002019-07-20T06:00:06.291-05:00Venture Holdings LLC v Metro Board of Zoning AppealsVenture 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.<br /><br />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.George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-1831069905754096602019-07-19T06:00:00.000-05:002019-07-19T06:00:17.188-05:00Roland Digital Media v City of LivingstonRoland 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.<br />
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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.<br />
<br />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.<br />
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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.<br />
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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.<br />
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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?<br /><br />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.George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-3233616008331235032019-07-18T06:00:00.000-05:002019-07-18T06:00:04.277-05:00Knick v Township of ScottThis 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.<br /><br />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.<br /><br />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.George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0tag:blogger.com,1999:blog-2223257318739251984.post-16697169509693922642018-12-08T06:00:00.000-06:002018-12-08T06:00:03.693-06:00Historic Landmark for the Strand Book Store in NYC?In an interesting <a href="https://www.nytimes.com/2018/12/03/nyregion/strand-bookstore-landmark.html" target="_blank">New York Times article today</a>, the owner of the Strand bookstore in NYC vigorously opposed having the city historic commission landmark the the building in which the bookstore operates. Arguing that land marking the building would increase her overall costs in what is a cutthroat business within margins, she asked the city commission to just leave her alone. She pointed out that New York City just granted $3 billion worth of subsidies to her arch rival, Amazon, and that instead of getting help from the city financially, they threaten now to make her operations even more difficult by land marking the building. It's quite a fun little article, and well worth reading. Whether her evaluation of the impact of the landmark status is accurate, the juxtaposition of the subsidies being paid by the city to Amazon vs. keeping one of the few independent bookstores still operational in the city is quite entertaining.George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com1tag:blogger.com,1999:blog-2223257318739251984.post-80676501036064460102018-11-07T06:00:00.000-06:002018-12-07T09:06:06.141-06:00Cunningham v Bedford County -- Procedural Due ProcessWe have been reviewing the Cunningham v Bedford County case (copy found here) over the last several installments of this little zoning blog. We will continue today with a look at procedural due process.<br />
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The plaintiff also alleged a violation of procedural due process under both the US and Tennessee constitutions. The difficulty with this type of a claim is that there must be some constitutionally protected property interest that requires some degree of notice and opportunity to be heard. That property interest must be more than a unilateral expectation or an abstract need or desire, it must be a legitimate claim of entitlement created and defined by existing rules or understandings that come from some independent source such as Tennessee state law. The Court of Appeals concluded that here the plaintiff simply failed to demonstrate that he was entitled to have a zoning change and it was not therefore deprived of any procedural due process. He had no legitimate claim of entitlement to what is a discretionary decision by the local legislative body.<br />
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Once again, to a perhaps lesser extent in this instance, the decision turns on whether or not there was a rational basis for the failure to rezone the property. Having concluded that there was a rational basis for declining to change the zoning, there could not possibly be any claim of entitlement and as a result the procedural due process argument was doomed to failure.<br />
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I would go further and say that the procedural due process argument is somewhat difficult in the context of a zoning change. Perhaps if the zoning had been commercial and the County changed it to residential to the detriment of the owner, a procedural to process argument might have been more tenable. Under these circumstances though, it may be just too far a stretch. However, adding procedural and substantive due process claims to any case such as this is always worth considering and usually worth trying. Remember, that the local legislative body had cut off the plaintiff’s presentation of one of the hearings, and there were some allegations that at least the trial court found persuasive because of conflicts of interest by some members of the County commission.<br />
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Our next installment of this review of the Cunningham case will take a quick look at the alleged violations of substantive due process.George Deanhttp://www.blogger.com/profile/17912478032606581677noreply@blogger.com0