The Short Term Rental Properties Bill, Senate Bill 1086, was recommended for passage yesterday by the Senate Commerce and Labor Committee, 8 to 1. There is an interesting video of the sponsor of the bill here. As you might suspect, the emphasis is on the property rights of the unit owners during the sponsor's presentation. Interestingly, Sen. Stevens discusses the bill in terms of grandfathered uses. The bill actually looks more like a regulatory scheme rather than a non-conforming use bill. Further, with regard to non-conforming uses, it would probably be better to link it to the Tennessee Non-Conforming Property Act,Tenn. Code Ann. §13-7-208, if that's the intent. I looked back quickly through the bill and didn't see any reference to the TNCPA.
In addition, the bill which is on the website does not appear to be the latest version, at least not the latest one that I’ve seen.
It is also worth noting that there is a provision in the bill for judicial remedies which allows the unit owner to appeal to the board of zoning appeals if the permit is revoked or if there is a refusal by the local government to issue or renew a permit. The interesting part is that an appeal from the board of zoning appeals to Circuit Court or Chancery Court is de novo instead of on the record from the board of zoning appeals. There is certainly a constitutional issue there. Generally speaking, courts of law may not review administrative decisions as though the court was making a decision in the first instance, because it’s a violation of the separation of powers doctrine. The Tennessee courts have long recognized that distinction and therefore whether judicial review pursuant to this statutory provision is constitutionally permissible is certainly open to question.
In any event, it will be interesting moving forward to see how the bill progresses.
Wednesday, March 21, 2018
Business licenses and non-conforming uses
In order to establish a non-conforming use, must the property owner demonstrate compliance with the business licensing laws? In Oregon, the answer is evidently no. In Morgan v Jackson County, 290 OR App. 111 (February 7, 2018) the court reversed a zoning board decision finding that an “auto yard business” located in a zoning district for agricultural use was not legally non-conforming because it did not comply with the dealer-licensing statutes of Oregon.
The court, relying on statutory authority, construed the statute and its use of the phrase “lawful use” to include only land use laws. Therefore, the fact that the owner of the property did not have a business license to engage in the operation of the business at the time that the operation began was not relevant to the land use issue. As a result, the zoning board decision finding no non-conforming use was reversed.
The Tennessee statute, Tenn. Code Ann. §13-7-208, augurs in precisely the opposite direction. For example, §208 (b), (c) & (d) allow “industrial, commercial, or other business establishments in operation and permitted to operate under zoning regulations or exceptions thereto immediately preceding a change in zoning…” to continue and expand. §208(d)(1). In Toles v City of Dyersburg, 39 S.W. 3d 138 (Tenn. App. 2000) the court concluded that because a tavern operator had lost his beer license immediately before the change in zoning took place and therefore could not legally be “in operation” that the property was no longer legally non-conforming. The court found nothing involuntary about the cessation of operations of the tavern and found the property was not legally non-conforming as a result.
I suspect that we will see other cases arguing this point here in Tennessee. However, the “in operation” provision of our statute, as applies to commercial and industrial uses, makes the argument much more difficult than in other states, such as for example Oregon.
The court, relying on statutory authority, construed the statute and its use of the phrase “lawful use” to include only land use laws. Therefore, the fact that the owner of the property did not have a business license to engage in the operation of the business at the time that the operation began was not relevant to the land use issue. As a result, the zoning board decision finding no non-conforming use was reversed.
The Tennessee statute, Tenn. Code Ann. §13-7-208, augurs in precisely the opposite direction. For example, §208 (b), (c) & (d) allow “industrial, commercial, or other business establishments in operation and permitted to operate under zoning regulations or exceptions thereto immediately preceding a change in zoning…” to continue and expand. §208(d)(1). In Toles v City of Dyersburg, 39 S.W. 3d 138 (Tenn. App. 2000) the court concluded that because a tavern operator had lost his beer license immediately before the change in zoning took place and therefore could not legally be “in operation” that the property was no longer legally non-conforming. The court found nothing involuntary about the cessation of operations of the tavern and found the property was not legally non-conforming as a result.
I suspect that we will see other cases arguing this point here in Tennessee. However, the “in operation” provision of our statute, as applies to commercial and industrial uses, makes the argument much more difficult than in other states, such as for example Oregon.
Tuesday, March 20, 2018
Religious use and concentrated animal feeding operations (CAFO)
In an interesting special exception case out of Indiana, House of Prayer v Rush County Board of Zoning Appeals, 2018 WL 414862 (Ind. Appeals January 16, 2018), a religious land use adjacent to a farm which asked for a permit to operate a concentrated animal feeding operation (CAFO) with 1400 cattle lost as a result of the fact that the agricultural use, even in its intensive form, was both expected and encouraged in the zoning district.
House of Prayer argued that its property should be protected as a result of the Indiana Religious Freedom Restoration Act and the RLUIPA, but the court concluded that there was no protection under the federal act as a result of the fact that the House of Prayer did not have an interest in the property which was regulated, a requirement under the federal act. As far as the state act goes, the court concluded that while there was some evidence of a burden on its religious exercise, because the owner of the farm promised to control the runoff and odor, the court found no substantial burden.
I have not seen too many cases yet where state religious freedom statutes are important in the outcome. It is interesting here that the Indiana court deferred to the local zoning board even in the face of an allegation implicating the Indiana statute.
House of Prayer argued that its property should be protected as a result of the Indiana Religious Freedom Restoration Act and the RLUIPA, but the court concluded that there was no protection under the federal act as a result of the fact that the House of Prayer did not have an interest in the property which was regulated, a requirement under the federal act. As far as the state act goes, the court concluded that while there was some evidence of a burden on its religious exercise, because the owner of the farm promised to control the runoff and odor, the court found no substantial burden.
I have not seen too many cases yet where state religious freedom statutes are important in the outcome. It is interesting here that the Indiana court deferred to the local zoning board even in the face of an allegation implicating the Indiana statute.
Wednesday, March 14, 2018
Howell v Farris, Tenn App 2018
This very interesting case involves an appeal from a decision of the local legislative body in Bolivar denying building permits to the property owner. The denial of the building permits was based on the failure of the owner to get a contractors license as required by Tennessee law. The suit requested the issuance of a statutory or common law writ of certiorari, and liquidated damages based allegedly on the delay caused by the city by refusing to issue to permits. At a later time, the complaint was amended to include a request for inverse condemnation by regulatory taking.
The Court of Appeals initially considered whether the appropriate mechanism for appeal was the common law or statutory writ of certiorari. Based on innumerable cases here in Tennessee, the court easily concluded that since the local legislative body was acting as a board of zoning appeals at the time that it upheld the denial of the building permits, that the proper means of challenging that decision was pursuant to the common law writ of certiorari. Remember that the statutory writ of certiorari allows the trial court to conduct an entirely new hearing, including the admission of new evidence is the parties so desire whereas the common law writ only allows the trial court to review the record of the proceedings below to determine if the administrative body acted arbitrarily or capriciously.
The Court of Appeals, citing Judge Ben Cantrell's well-known and definitive article (Review of Administrative Decisions by Writ of Certiorari in Tennessee, 4 Memphis State University Law Review 19, 28 (1973)), held that the statutory writ was only available when (1) the order of the administrative body has no specific provision for judicial review; (2) the function performed by the lower tribunal is essentially judicial in nature; and (3) the order for which review is sought finally determines the rights of the petitioner.
The difficulty with this framework is the use of the term "judicial." Who's to say that a board of zoning appeals acts any less "judicially" then the historic zoning commission?
Judge Cantrell offers some insight into that question. "Apparently the court will sanction the granting of review by the statutory writ with its trial de novo only where the administrative tribunal is acting as to the petitioner much like a court would; namely, the individual petitioner has something like a private property right (e.g., a license, a permit, an office) which by its order, the administrative body may take away." Once again, think of it in the context of a zoning board: most of the time, the zoning board is determining whether or not to grant some specific type of relief to an applicant, a variance, or a special right to use property such as by a special exception or conditional use permit. If the board denies the application for the variance or conditional use permit, the applicant has not lost any species of right – the applicant never had the right to use his/her property for that purpose in the first place. Thus, arguably, nothing has been lost.
In this case, the question was whether or not the applicant had satisfied the requirements for the building permit and the legislative body/board of zoning appeals determined that he had not because of his failure to comply with the Contractors Licensing Act.
The second issue was whether or not the case became moot when during the pendency of the litigation, the property owner finally was able to obtain the building permits. At stake worthy numerous other claims that the plaintiff had attempted to put before the court arising out of the denial of the permits. The Court of Appeals affirmed the decision of the trial court finding the whole matter moot by issuance of the permits. But it went further: "it has been consistently held that the common law writ of certiorari, which is appellate in nature, is incompatible with an original action, and the two cannot be brought together." In other words, all of the other claims, request for injunction, removal action, the takings case, were all inappropriately joined with the common law writ of certiorari and should have been dismissed by way of a motion to dismiss early on in the litigation. I will come back to this point just a second.
Finally, the court addressed specifically the regulatory taking claim. While the trial court concluded that the taking claim had to be dismissed, it was based on the fact that the Tennessee Criminal Court of Appeals had ruled that withholding the building permits because of a lack of compliance with the Contractors Licensing Act was appropriate, the Court of Appeals concluded that it should have been dismissed because it was not proper to join the regulatory taking case with a petition for the common law writ of certiorari.
Citing among others, Goodwin v Metro Board of Health, 656 S.W. 2d 383, 387 (Tenn. App. 1983), the Tennessee Court of Appeals held that since the plaintiff had requested the issuance of a common law writ of certiorari, a form of appellate review, his claims invoking the original jurisdiction of the Chancery Court, including his regulatory taking claim, could not be joined in the same proceeding. Therefore, the regulatory taking claim had to be dismissed.
Let me make two quick observations concerning the ability to join original action with a common law writ of certiorari. The Goodwin case and its progeny have been around as long as I practice law. It has never made any sense to me. What is there about joining an original cause of action such as a regulatory takings case with a common law writ of certiorari which disqualifies the Chancery Court from hearing them both? Are we saying that the Chancellor's are not equipped to handle a multiplicity of actions? That doesn't make much sense. Certainly both our chancery court and circuit court judges are entirely capable of handling a case which is in Foreman appellant action, and a case which is informed and original action, in the same matter. Is there some difficulty, hearing can be held separately to make disposition easier. But that doesn't seem to be any reason why the Chancellor or Circuit Court judge or these issues all at once in the same proceeding.
However, since the Goodwin doctrine has been around for at least 35 years now, a far safer alternative for counsel is to simply file two cases. First, file the administrative review via the common law writ of certiorari, and then file a second case seeking whatever other types of original relief the client might be entitled to. Take this case for example. If the common law writ of certiorari had been filed first, and then immediately after that, another suit for regulatory taking, injunctive relief damages, on whatever other theories might be available, the Goodwin doctrine would be avoided and the client would be entitled to pursue whatever relief might be available.
The attorney for the petitioner (plaintiff) must remember that the petition for certiorari must be filed within 60 days after the entry of the decision by the Board of Zoning Appeals. That's why it is important to go ahead and file the petition for certiorari first, because ordinarily the statute is for the other types of tortious misconduct is longer.
Finally, it is worth noting apps, if the court dismisses claims properly certiorari case he may be some relief pursuant to the saving statute here in Tennessee. I don't know of any case law on that issue, but if there's nothing else available, that would probably be worth arguing to see what our appellate courts would conclude as to that issue.
The Court of Appeals initially considered whether the appropriate mechanism for appeal was the common law or statutory writ of certiorari. Based on innumerable cases here in Tennessee, the court easily concluded that since the local legislative body was acting as a board of zoning appeals at the time that it upheld the denial of the building permits, that the proper means of challenging that decision was pursuant to the common law writ of certiorari. Remember that the statutory writ of certiorari allows the trial court to conduct an entirely new hearing, including the admission of new evidence is the parties so desire whereas the common law writ only allows the trial court to review the record of the proceedings below to determine if the administrative body acted arbitrarily or capriciously.
The Court of Appeals, citing Judge Ben Cantrell's well-known and definitive article (Review of Administrative Decisions by Writ of Certiorari in Tennessee, 4 Memphis State University Law Review 19, 28 (1973)), held that the statutory writ was only available when (1) the order of the administrative body has no specific provision for judicial review; (2) the function performed by the lower tribunal is essentially judicial in nature; and (3) the order for which review is sought finally determines the rights of the petitioner.
The difficulty with this framework is the use of the term "judicial." Who's to say that a board of zoning appeals acts any less "judicially" then the historic zoning commission?
Judge Cantrell offers some insight into that question. "Apparently the court will sanction the granting of review by the statutory writ with its trial de novo only where the administrative tribunal is acting as to the petitioner much like a court would; namely, the individual petitioner has something like a private property right (e.g., a license, a permit, an office) which by its order, the administrative body may take away." Once again, think of it in the context of a zoning board: most of the time, the zoning board is determining whether or not to grant some specific type of relief to an applicant, a variance, or a special right to use property such as by a special exception or conditional use permit. If the board denies the application for the variance or conditional use permit, the applicant has not lost any species of right – the applicant never had the right to use his/her property for that purpose in the first place. Thus, arguably, nothing has been lost.
In this case, the question was whether or not the applicant had satisfied the requirements for the building permit and the legislative body/board of zoning appeals determined that he had not because of his failure to comply with the Contractors Licensing Act.
The second issue was whether or not the case became moot when during the pendency of the litigation, the property owner finally was able to obtain the building permits. At stake worthy numerous other claims that the plaintiff had attempted to put before the court arising out of the denial of the permits. The Court of Appeals affirmed the decision of the trial court finding the whole matter moot by issuance of the permits. But it went further: "it has been consistently held that the common law writ of certiorari, which is appellate in nature, is incompatible with an original action, and the two cannot be brought together." In other words, all of the other claims, request for injunction, removal action, the takings case, were all inappropriately joined with the common law writ of certiorari and should have been dismissed by way of a motion to dismiss early on in the litigation. I will come back to this point just a second.
Finally, the court addressed specifically the regulatory taking claim. While the trial court concluded that the taking claim had to be dismissed, it was based on the fact that the Tennessee Criminal Court of Appeals had ruled that withholding the building permits because of a lack of compliance with the Contractors Licensing Act was appropriate, the Court of Appeals concluded that it should have been dismissed because it was not proper to join the regulatory taking case with a petition for the common law writ of certiorari.
Citing among others, Goodwin v Metro Board of Health, 656 S.W. 2d 383, 387 (Tenn. App. 1983), the Tennessee Court of Appeals held that since the plaintiff had requested the issuance of a common law writ of certiorari, a form of appellate review, his claims invoking the original jurisdiction of the Chancery Court, including his regulatory taking claim, could not be joined in the same proceeding. Therefore, the regulatory taking claim had to be dismissed.
Let me make two quick observations concerning the ability to join original action with a common law writ of certiorari. The Goodwin case and its progeny have been around as long as I practice law. It has never made any sense to me. What is there about joining an original cause of action such as a regulatory takings case with a common law writ of certiorari which disqualifies the Chancery Court from hearing them both? Are we saying that the Chancellor's are not equipped to handle a multiplicity of actions? That doesn't make much sense. Certainly both our chancery court and circuit court judges are entirely capable of handling a case which is in Foreman appellant action, and a case which is informed and original action, in the same matter. Is there some difficulty, hearing can be held separately to make disposition easier. But that doesn't seem to be any reason why the Chancellor or Circuit Court judge or these issues all at once in the same proceeding.
However, since the Goodwin doctrine has been around for at least 35 years now, a far safer alternative for counsel is to simply file two cases. First, file the administrative review via the common law writ of certiorari, and then file a second case seeking whatever other types of original relief the client might be entitled to. Take this case for example. If the common law writ of certiorari had been filed first, and then immediately after that, another suit for regulatory taking, injunctive relief damages, on whatever other theories might be available, the Goodwin doctrine would be avoided and the client would be entitled to pursue whatever relief might be available.
The attorney for the petitioner (plaintiff) must remember that the petition for certiorari must be filed within 60 days after the entry of the decision by the Board of Zoning Appeals. That's why it is important to go ahead and file the petition for certiorari first, because ordinarily the statute is for the other types of tortious misconduct is longer.
Finally, it is worth noting apps, if the court dismisses claims properly certiorari case he may be some relief pursuant to the saving statute here in Tennessee. I don't know of any case law on that issue, but if there's nothing else available, that would probably be worth arguing to see what our appellate courts would conclude as to that issue.
Tuesday, March 6, 2018
Ward v Metro Board of Zoning Appeals
The Davidson County Chancery Court has upheld the Metro Board of Zoning Appeals which agreed with Bill Herbert, the Metro Zoning Administrator, that the Glencliff Methodist Church should be granted an accommodation to allow 22 "tiny homes" for the homeless on the church property. Metro and the Church argued that the accommodation was required to avoid a substantial burden on the religious beliefs of the Church and its members. The Church and its members sincerely believe that part of their religious duty is to help the homeless and other disadvantaged people.
The neighbors filed the appeal arguing that the accommodation was not essential and that the land use regulations were compelling in nature. The latter argument was undercut by the decision of the Board, which did not find that the regulations were compelling.
The Court first found that the petitioners did have standing to sue because they lived close to the church property based on the certiorari petition.
Furthermore, the Court concluded that the petitioners failed to establish by clear and convincing evidence, under the facts of this case, that enforcing the neutral residential zoning laws and subdivision regulations against the Church was essential to furthering a compelling governmental interest. The Metropolitan Government did not assert that any such compelling interest exists under the specific facts of this case. The record contained material evidence supporting the decision of the Board of Zoning Appeals, and therefore the court upheld its decision.
Most likely this case will be appealed to the Tennessee Court of Appeals. There is, as of yet, very little case law interpreting the Tennessee statute, and this case should offer guidance to legal counsel as to how the statutory provisions should be construed.
The neighbors filed the appeal arguing that the accommodation was not essential and that the land use regulations were compelling in nature. The latter argument was undercut by the decision of the Board, which did not find that the regulations were compelling.
The Court first found that the petitioners did have standing to sue because they lived close to the church property based on the certiorari petition.
Furthermore, the Court concluded that the petitioners failed to establish by clear and convincing evidence, under the facts of this case, that enforcing the neutral residential zoning laws and subdivision regulations against the Church was essential to furthering a compelling governmental interest. The Metropolitan Government did not assert that any such compelling interest exists under the specific facts of this case. The record contained material evidence supporting the decision of the Board of Zoning Appeals, and therefore the court upheld its decision.
Most likely this case will be appealed to the Tennessee Court of Appeals. There is, as of yet, very little case law interpreting the Tennessee statute, and this case should offer guidance to legal counsel as to how the statutory provisions should be construed.
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