Saturday, August 11, 2012
Corruption in the zoning process
Yet another federal criminal case demonstrating the seemingly pervasive quality of corruption in the local zoning and codes enforcement process. In US v Keen, 676 F 3d 981 (11th Cir. 2012), the zoning enforcement officer was convicted of criminal misconduct in accepting money from an undercover FBI agent, and paying bribes to two commissioners for favorable votes on the development project. the convictions were upheld, but the interesting part is the actual presentation of the corruption in the process. Who knows how much of this actually goes on; it's a safe bet that law enforcement only picks up the absolute worst, the folks who really don't know how to cover their trail very well. It is certainly a sad story for local government.
Tuesday, August 7, 2012
Discriminatory Enforcement
In a recent federal district court case from California, the plaintiffs alleged that the city vigorously enforced zoning regulations against it, but ignored a competitor who was engaged in the same conduct. The court ruled basically that discriminatory enforcement was not actionable unless it was based on some unjustifiable standard, such as race, religion, or some other discriminatory basis. Andy’s BP v City of San Jose, 2012 WL 2340072 (N.D.Cal. June 2012).
This doctrine is often misunderstood but it is the majority rule across the United States. In Tennessee for example, in Irvin v City of Clarksville, 767 S.W. 2d 649 (Tenn. App. 1988), the court writing through Judge Koch held, "The conscious exercise of some selectivity in enforcement is not actionable in the absence of proof that the enforcement was deliberately based on an impermissible reason such as race, religion, or some other arbitrary standard." In that case, the plaintiff challenged the city's determination to demolish a fire-damaged home; the court concluded that the city had done nothing improperly, and the home was demolished pursuant to codes order.
Judge Koch has written several other opinions dealing with this same issue. I think it is very safe to say that Tennessee follows the majority rule. With Judge Koch on the Tennessee Supreme Court, we will probably get a Supreme Court precedent sometime possibly in the not-too-distant future.
From a policy perspective, this of course makes good sense. In a manner of speaking, all prosecutions are selective: the prosecutor makes a decision that there's been a violation of the law and initiates enforcement proceedings. Except under the most extreme circumstances, the prosecutor should be free to make decisions about enforcement of the law without being second guessed by the defendants. After all, the defendant in a discriminatory enforcement action are not arguing that they are not guilty; all they are saying is that someone else is also guilty. That is perhaps not the strongest argument for a finding of no violation.
This doctrine is often misunderstood but it is the majority rule across the United States. In Tennessee for example, in Irvin v City of Clarksville, 767 S.W. 2d 649 (Tenn. App. 1988), the court writing through Judge Koch held, "The conscious exercise of some selectivity in enforcement is not actionable in the absence of proof that the enforcement was deliberately based on an impermissible reason such as race, religion, or some other arbitrary standard." In that case, the plaintiff challenged the city's determination to demolish a fire-damaged home; the court concluded that the city had done nothing improperly, and the home was demolished pursuant to codes order.
Judge Koch has written several other opinions dealing with this same issue. I think it is very safe to say that Tennessee follows the majority rule. With Judge Koch on the Tennessee Supreme Court, we will probably get a Supreme Court precedent sometime possibly in the not-too-distant future.
From a policy perspective, this of course makes good sense. In a manner of speaking, all prosecutions are selective: the prosecutor makes a decision that there's been a violation of the law and initiates enforcement proceedings. Except under the most extreme circumstances, the prosecutor should be free to make decisions about enforcement of the law without being second guessed by the defendants. After all, the defendant in a discriminatory enforcement action are not arguing that they are not guilty; all they are saying is that someone else is also guilty. That is perhaps not the strongest argument for a finding of no violation.
Friday, August 3, 2012
Who may appeal to the zoning board?
Recently I have been working on a brief to the Tennessee Court of Appeals, and during my research, I noticed another one of those little interesting tidbits relating to the Tennessee Zoning Enabling Legislation, in this case, TCA §§13-7-108, and 13-7-206 (b). These two sections, which are almost identical, provide:
Anyway, while I was thinking about the impact of §108 above, I thought I'd take a look to see what language had been used by Alfred Bettman, in his proposal to the Tennessee General Assembly back in 1934. Indeed, it was quite different. The Bettman proposal was:
The interesting part of this is that generally local governments are entirely exempt from zoning regulations in the first place. That is, when a local government decides to build a structure of any kind, its own local zoning regulations don't apply. In fact, they also don't apply to other local governments, to the state government, or to the federal government. As a result, it's difficult to understand how the Tennessee modifications to the Bettman proposal ever come into play.
Finally, there are several local governments which have expressly waived their immunity to local zoning enforcement. Metro Nashville is one of those. In those cases, I assume that the government does apply for a building permit, and could appeal to the board of zoning appeals. However, it's difficult to understand any further action thereafter; that is, if the zoning board turned down the application, it seems to me highly unlikely that Metro Nashville would sue the Metro Board of Zoning Appeals in court to get whatever it had applied for. As a result again, the Tennessee modifications to the Bettman proposal seem unnecessary and unwarranted. It's not clear to me one it really applies and what it might apply to.
Finally, to the extent that the local government wants to reverse the decision of the local board of zoning appeals, all it has to do is amend the zoning ordinance to change the result. Of course, the amendment won't affect the particular application which was considered by the zoning board (if it was granted; if denied, and the local legislative body wants such applications granted, then of course the amendment would probably apply), but it would to all others, and arguably the board's action in one case would not have much of an impact in the overall zoning scheme.
For those reasons, it seems to me that there's certainly no reason in most instances to clothe the local government with the ability to second-guess an appeal the decisions of its own board of zoning appeals. A small part of my case will involve this issue of standing, that'll be interesting to see what the Tennessee Court of Appeals decides to do with it.
Appeals to the board of appeals may be taken by any person aggrieved, or by any officer, department or board of the county affected, by any grant or withholding of a building permit or by any other decision of a building commissioner or other administrative official, based in whole or in part upon the provisions of any ordinance under this part.I have looked at these two statutes on many occasions over the years, but had never really thought about them too much. In the Court of Appeals brief that I am currently working on, the county has sued its own county board of zoning appeals. Certainly this strikes me as a very unusual circumstance, and frankly, absent some exceptional reasons, it doesn't seem to me that a local government should be able to sue its own zoning board. Rather, it seems to me that the zoning board is, in so far as the administration and enforcement of the zoning provisions are concerned, but final authority at the local governmental level. That's not to say that the local legislative body, which adopts the zoning ordinance itself, as well as any amendments thereto, does not also have an even more important role; it's just that in terms of administration enforcement, it seems to me that he zoning board should be the last nonjudicial record.
Anyway, while I was thinking about the impact of §108 above, I thought I'd take a look to see what language had been used by Alfred Bettman, in his proposal to the Tennessee General Assembly back in 1934. Indeed, it was quite different. The Bettman proposal was:
Appeals to the board of appeals may be taken by any person aggrieved by his inability to obtain a permit from the County building Commissioner or other administrative official or by any other decision of such Commissioner or official based in whole or in part upon the provisions of any ordinance enacted under this act.As you can see, Bettman left entirely out the provision about officials of the local government being able to appeal decisions of the board of zoning appeals. Evidently, the Tennessee General Assembly disagreed with the Bettman proposal and added the additional language.
The interesting part of this is that generally local governments are entirely exempt from zoning regulations in the first place. That is, when a local government decides to build a structure of any kind, its own local zoning regulations don't apply. In fact, they also don't apply to other local governments, to the state government, or to the federal government. As a result, it's difficult to understand how the Tennessee modifications to the Bettman proposal ever come into play.
Finally, there are several local governments which have expressly waived their immunity to local zoning enforcement. Metro Nashville is one of those. In those cases, I assume that the government does apply for a building permit, and could appeal to the board of zoning appeals. However, it's difficult to understand any further action thereafter; that is, if the zoning board turned down the application, it seems to me highly unlikely that Metro Nashville would sue the Metro Board of Zoning Appeals in court to get whatever it had applied for. As a result again, the Tennessee modifications to the Bettman proposal seem unnecessary and unwarranted. It's not clear to me one it really applies and what it might apply to.
Finally, to the extent that the local government wants to reverse the decision of the local board of zoning appeals, all it has to do is amend the zoning ordinance to change the result. Of course, the amendment won't affect the particular application which was considered by the zoning board (if it was granted; if denied, and the local legislative body wants such applications granted, then of course the amendment would probably apply), but it would to all others, and arguably the board's action in one case would not have much of an impact in the overall zoning scheme.
For those reasons, it seems to me that there's certainly no reason in most instances to clothe the local government with the ability to second-guess an appeal the decisions of its own board of zoning appeals. A small part of my case will involve this issue of standing, that'll be interesting to see what the Tennessee Court of Appeals decides to do with it.
Thursday, August 2, 2012
Links to the 1935 Tenn Zoning Enabling Acts
I have uploaded today copies of the 1935 Tennessee Public Acts relating to zoning in municipalities and counties. It's handy at times to have access to these documents and I thought it might be nice to have a copy on the net. You'll see a reference to those links on the lower right-hand side of the page. Over the next month or two, perhaps I'll have time to upload PDFs of the regional and city planning enabling legislation as well.
Now that I've gotten into this historical perspective, I thought about uploading a few pages that I have of a book that was published in 1949 chronicling the first 15 years of the Tennessee State Planning Commission, and as a result, also discussing the adoption of the Tennessee Zoning and Planning Enabling Legislation in 1935. However, I found a copy of the book is already been uploaded. You can read it here.
In particular, take a look at page 4 of the book:
Once I found this passage, it was a simple matter to check on Alfred Bettman, and discover that he had, in the latter part of his career, served as a consultant to New Jersey and was involved in their legislative efforts in the early 40s. No doubt his language for variances was adopted at that time. In fact, although the New Jersey Municipal Land Use Law change the arrangement of the language somewhat, even today it remains pretty much the same.
I've also spent some time in Cincinnati reviewing the Bettman archives at the University of Cincinnati. There is a folder with considerable effort directed at drafting the Tennessee legislation.
It is likely that I am the only person around who has any real interest in this, but I am certainly indebted to the author of this small book, Eleanor Keeble Guess, who authored this as her Masters thesis.
Before concluding this diversion into history, let me point out one other reference in the book. At page 12, Ms. Guess says:
The effectiveness of the County Zoning Act is partially lost by the inclusion of the so-called "Joker clause," which states:
Now that I've gotten into this historical perspective, I thought about uploading a few pages that I have of a book that was published in 1949 chronicling the first 15 years of the Tennessee State Planning Commission, and as a result, also discussing the adoption of the Tennessee Zoning and Planning Enabling Legislation in 1935. However, I found a copy of the book is already been uploaded. You can read it here.
In particular, take a look at page 4 of the book:
The Tennessee Valley Authority's Division of Land Use Planning and Housing had retained Alfred Bettman of Cincinnati to make a complete investigation and report on the state Constitution and all legislative acts in Tennessee relating to planning to serve as a basis for preparing constructive legislative bills. subsequently, the Tennessee State Planning Board retained Mr. Bettman to prepare comprehensive state planning legislation and Gov. McAlister agreed to sponsor such legislation.I found this passage for the first time back in 1980, shortly after I started practicing law. I had been driven to look for the author of the original Tennessee State enabling legislation because of the similarities between the state variance language and the language contained in the state enabling legislation in New Jersey. I wondered what could be the connection between Tennessee and New Jersey, in the land use planning arena. If both states had simply had the version of the variance requirements set out in the Standard State Zoning Enabling Act, my curiosity would not have been piqued. But because both states relied on the special language requiring "exceptional shallowness, narrowness, or shape," it seemed to me there had to be some connection.
Once I found this passage, it was a simple matter to check on Alfred Bettman, and discover that he had, in the latter part of his career, served as a consultant to New Jersey and was involved in their legislative efforts in the early 40s. No doubt his language for variances was adopted at that time. In fact, although the New Jersey Municipal Land Use Law change the arrangement of the language somewhat, even today it remains pretty much the same.
I've also spent some time in Cincinnati reviewing the Bettman archives at the University of Cincinnati. There is a folder with considerable effort directed at drafting the Tennessee legislation.
It is likely that I am the only person around who has any real interest in this, but I am certainly indebted to the author of this small book, Eleanor Keeble Guess, who authored this as her Masters thesis.
Before concluding this diversion into history, let me point out one other reference in the book. At page 12, Ms. Guess says:
The effectiveness of the County Zoning Act is partially lost by the inclusion of the so-called "Joker clause," which states:
This Act 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 Act be construed as limiting or affecting in any way or controlling the agricultural uses of land.
The Joker Clause still lives; see TCA § 13-7-114. Take a look at our recent discussion of Shore v Maple Lane Farms, highlighting its continued applicability.
Historic South High in Knoxville
The saga continues regarding South High School in Knoxville. The current owner bought it from the city at auction, paid about $120,000 for the property in 2008, but is not maintaining it. Take a look at the News Sentinel article here. Evidently, the lot has become overgrown and the city feels that the owner is demolishing the building by neglect. The owner has until August 13, 2012 to appeal the unfit for habitation determination, or the city will board it up.
These types of cases are difficult. My feeling is that in terms of historic preservation, the city itself has the best chance of saving an older structure. Usually it has more money, it is exempt from zoning regulations, and it doesn't have to market the property to private users. However, once the property is sold to a private owner, there is always a risk that money will run short, zoning regs certainly apply, and the private owner must market to the vagaries of market purchasers. This case will be interesting to follow.
These types of cases are difficult. My feeling is that in terms of historic preservation, the city itself has the best chance of saving an older structure. Usually it has more money, it is exempt from zoning regulations, and it doesn't have to market the property to private users. However, once the property is sold to a private owner, there is always a risk that money will run short, zoning regs certainly apply, and the private owner must market to the vagaries of market purchasers. This case will be interesting to follow.
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