New Zoning Regs in Philly

Effective today, the City of Brotherly Love will have a new set of zoning regulations. They are supposed to be easier to read and understand, more lenient with regard to construction and other improvements, and right up to date. Here's a link to a building industry website. Over the next several weeks, I may take some sections from the new Philly code, and compare and contrast that with our zoning regulations here in Nashville.

Here's a link to the city zoning commission web site with more details.

NYC: The Rainbow Room

The famous NYC landmark, the Rainbow Room closed in 2009, when the owners of Rockefeller Plaza evicted the restaurant operators. a part of the feud between the owners and operators was the application by the operators for a listing as a historic landmark under New York City historic regulations. While the operators are now long gone, the New York Historic Commission is now getting around to a public hearing on the application. It is scheduled for September 11 of this year, as the NY Times reports.

A part of the reason for the application in the first place would seem logically have been to put pressure on the building owners. Certainly, once the restaurant was landmarked, it would be harder for the owners to lease to any other person, and consequently, its value as rental property would also be diminished. Thus the owners of the building may not be enthusiastic in their support for the application.

It will be interesting to see what the landmarks commission actually does. the commission has previously given landmark status to a restaurant separately from the building itself in the case of the Seagram Building and the Four Seasons Restaurant. In that case as well, both the building and the restaurant were given landmark status. The building owner objected to a separate classification for the restaurant, but supported the landmark status as to the building. One must assume that similar economic factors were involved in the request for landmark status for the restaurant and the position of the owner. There's another NY Times article on the Four Seasons decision here.

Impact Fees

We've had relatively little litigation over impact fees here in Tennessee. But the Ohio Supreme Court recently took a look at impact fees in Hamilton Township, and concluded that the fees were in reality an unauthorized tax levied by the local government. Drees Co. v. Hamilton Twp., 132 Ohio St.3d 186, 2012-Ohio-2370. the Ohio Supreme Court relied upon a multifactorial analysis which I will not discuss in any detail here. However, a significant portion of that analysis had to do with the goals of the impact fee structure, and how the benefits would be distributed within the township. The Ohio Supreme Court indicated that, under Ohio law, in order to qualify as a fee, the increased assessment must benefit the targeted properties. But in this case, it was clear that the goal was to benefit all properties across the entire township, not just the ones who paid the fee. Under those circumstances, the Ohio Supreme Court concluded that the so-called impact fee was in reality attacks, unauthorized by the legislature, and as such, void.

While there are certainly statutory provisions for impact fees here in Tennessee, as far as I recall, there's not in any litigation concerning those fees. Well, at least, nothing that reached the appellate courts of our state. Frankly, it is usually easier just to impose tax rather than bother with the fairly complicated ramifications of an impact the ordinance. Nevertheless, the Ohio Supreme Court decision is interesting reading. There are a number of other cases across the nation cited in the Ohio decision, and there are plenty more than that which I usually talk about in my law school course. This is an intriguing area of the law.

Delay in granting permit

In a very recent decision by a District Court in New Jersey, the provisions of RLUIPA have been applied to a city which allegedly delayed the approval of a necessary variance for approximately 4 years. The city defended by saying that most of the delay was the fault of the church, but on this motion to dismiss, the court had to accept as true the allegations of the complaint, and based on those allegations, the court found there was clearly a substantial burden on religious exercise.

This case, Israelite Church of God v City of Hackensack, presented some other interesting issues such as whether individual defendants could be held liable under the terms of the federal statute. Given appropriate pleadings, the court held that they could be, broadly based along the same lines as the federal Civil Rights Act, 42 USC §1983.

It is a very interesting case, and one can only speculate that the Tennessee state statute could also be applied in the same way; that is, a delay in obtaining the permit for that period of time would be seen as a substantial burden on religious exercise.

You have to start somewhere!

I noticed this interesting case from New York several days ago, reported on Patty Salkins' Law of the Land blog. The case involves an argument by a quarry owner that the quarry was legally nonconforming, and as a result it could continue after a change in the zoning regulations. Unfortunately for the quarry owner, the New York Court concluded that the quarrying operation had never begun before the change in the zoning regulations. As a result there is no nonconforming use. Take a look at the case: Cobleskill Stone Products v Town of Skoharie, 2012 WL 1948307 (App. Dept. 2012).

I was involved in a similar case 10 or 15 years ago, Dickson County v Jennette, 2000 WL 1121550 (Tenn.Ct.App. 2000). Even given the statutory protection found here in Tennessee at TCA §13-7-208, the nonconforming use must have begun operations before the change in the zoning regulations. In the Janette case, just as in Cobleskill, quarrying operations had not begun before the change in zoning took place. You just can't have a nonconforming use, unless the use has actually begun operations before the change in the zoning regulations takes place.