Last week, the United States Supreme Court decided an interesting land use planning case involving the Federal Telecommunications Act of 1996. In T-Mobile South, LLC v. City of Roswell (United States Supreme Court, January 14, 2015), the court concluded that while the Act requires reasons for the decision, those reasons do not have to be found at any particular location in the record whether it be in the minutes, the decision itself, or some other document; however, more critically, the reasons must be given at the time of the decision or roughly contemporaneously with it. In the case pending before the Supreme Court, the zoning board had delayed 26 days before releasing the reasons, and the court found this to be a violation of the statute.
This decision appears to overrule one aspect of the leading Sixth Circuit case, New Par v. City of Saginaw, 301 F.3d 390, 395–96 (6th Cir. 2002), which required that the “in writing” requirement must be separate from the written record. However, the Sixth Circuit also required that the reasons for the denial be given, that the denial be supported by material evidence, and that there not be any unreasonable delay in the decision, all of which are also mandated by the Supreme Court.
With regard to the timing of the decision, the court noted that
If a locality is not in a position to provide its reasons promptly, the locality can delay the issuance of its denial within this 90- or 150-day window, and instead release it along with its reasons once those reasons are ready to be provided. Only once the denial is issued would the 30-day commencement-of-suit clock begin.
It would appear therefore that the local zoning board need only delay its actual decision until the reasons are ready; it can then issue the decision and the reasons underlying the decision at the same time.
I have previously mentioned that in Tennessee, it seemed to me that the board could take a vote on the decision and then at the next meeting adopt findings of fact to support the decision. This case calls that idea into question; however, since the 90 to 150 day window exists, in the case of telecommunications applications, the board should simply defer action, request reasons to potentially grant or deny the application at the next meeting from the staff, and then at the next meeting adopt those reasons as the basis of a decision to be made at the later time. In fact, it might be best to ask for reasons supporting grant or denial.
The court notes that it is important to have the reasons for the decision in order to facilitate proper judicial review. Unfortunately, the Tennessee courts have been reluctant to impose an absolute requirement for a statement of reasons supporting zoning board decisions. In the well-known case, Advanced Sales v Wilson County, 1999 WL 336305 (Tenn. App. 1999), the court accepted a very brief form with the entry “Relief Denied,” circled and signed by the board Secretary as sufficient evidence of the decision. Certainly there was no reasoning behind the decision. The Tennessee courts need to follow the federal courts and require fact findings support decisions of these local administrative bodies. Otherwise it’s difficult not only to facilitate appellate review, but even decide whether to take an appeal. If you don’t know the basis upon which the board made the decision, it’s difficult to decide whether an appeal might be successful.
In any event, this new case offers some additional insight into the way the US Supreme Court views this local zoning process, and certainly the burden on the local zoning board seems to be a little less than what we previously thought.
Tuesday, January 20, 2015
Monday, October 20, 2014
CBS Outdoor
The recent decision by the Tennessee Court of Appeals in Metro Nashville v Metro Board of Zoning Appeals & CBS Outdoor, 2014 WL 4364852 (Tenn App Sept 3, 2014), presents a considerable difficulty for almost every party who appears before any board of zoning appeals in the state of Tennessee. The holding of the Court of Appeals is that the local government may, presumably without notice in any manner whatsoever to the applicant, appeal any decision of its Board of Zoning Appeals and challenge whether that decision was appropriate. This means that even though there may not be any opposition whatsoever appearing before the Board of Zoning Appeals, the applicant needs to ensure that there is a sufficient evidentiary basis for any decision of the Board which grants the relief sought. Just because no one appears in opposition does not mean that at some point a lawsuit won’t be filed by the local government itself challenging the decision of its own zoning board.
The decision in CBS Outdoor leaves a number of questions unanswered. Does the local government need to present some proof to the trial court concerning standing? Should the local government appear before the zoning board? Who makes the appearance? Assuming that the local government did not make an appearance before the zoning board, there would be no evidence of standing in the record, and assuming that the respondent denied the standing allegations in the petition for writ of certiorari, there would be no clear evidence of any harm to the local government without such proof. On the other hand, perhaps the Court of Appeals is signaling that the local government need not make any other showing than perhaps a reference to a local ordinance which it contends was not followed. Surely the ordinance itself would have to be introduced however before the trial court, and in the absence of a stipulation from respondent’s counsel, it’s not entirely clear how that takes place either. The trial court can take judicial notice of local zoning regulations upon notice (Rule 202 (b) of the Tennessee Rules of Evidence) but in a certiorari proceeding all the evidence should have been presented to the zoning board; allowing additional evidence, even the zoning regulations, arguably allows the court to consider factors which were not considered by the zoning board.
On the other hand, it has always seemed to me that local governments should have the ability to appeal under certain circumstances. The most obvious is where the local government owns a parcel property in the immediate vicinity of the proposal. In such a case, the local government is just like any other neighbor, and can appear before the zoning board opposing the application and appeal the decision on to a reviewing court. In a sense, the well-known City of Brentwood v Metro Board of Zoning Appeals, 149 S.W. 3d 49 (Tenn. App. 2004) represents this idea. Although Brentwood itself did not own property in the immediate vicinity, it was in that case an immediately adjacent neighbor, concerned about the construction of the sign which was at issue in that case.
Secondly, there are certainly times when local zoning boards make decisions which are so far beyond their ordinary activities that the decisions may need to be called into question. Two quick examples: first, where the zoning board grants a variance in the building code provisions. The zoning board has no authority over the building code, and should not be considering building code issues in its hearings. Secondly, if the zoning board violates some federally protected right or activity, litigation to protect those citizens whose rights are in issue may be necessary. For example, religious discrimination might be a basis for such an appeal.
But where the zoning board is exercising powers which are normally within its jurisdictional ken, such as considering variances, conditional use permits (special exceptions), or making determinations concerning non-conforming properties, it would seem unnecessary for the local government to have the right to sue its own zoning board and challenge its decision in a trial court. In fact, one wonders why we bother with zoning boards at all if the local government is free to appeal any decision they issue. In the CBS Outdoor case, there are no special issues. Metro contends that the zoning board decided a non-conforming property case erroneously. The Metro board of zoning appeals probably hears something in the vicinity of 50 to 75 such cases each year. This kind of case is certainly not anything unusual. It does not seem therefore to afford a basis for an appeal by the local government of its own zoning board’s decision.
Which brings us back to the main issue here: how to best protect against such an appeal. Once more, the best protection is to make sure that the record contains sufficient evidence to justify the decision, and that the order or minute entry of the board reflects findings of fact and conclusions of law which are consistent with the board’s decision. Customarily, I file a fairly lengthy letter with the zoning board approximately one week before the hearing date, detailing why my client complies (or in the case of opposition, why the applicant does not comply) with the requirements for the application. Assuming that the zoning board rules in my favor, I usually request permission to draft the minute entry and/or order of the board which will closely follow my letter. Generally speaking, I have found that it is quite difficult for anyone appealing such decisions to reverse because the combination of the letter (with the evidence), and the order (with findings of fact and conclusions of law) is usually very persuasive to the trial court.
One final note. Given the recent decision by the Tennessee Supreme Court concerning the manner required for trial courts to grant summary judgment pursuant to Rule 56.04 of the Tennessee Rules of Civil Procedure, Smith v UHS of Lakeside, 2014 WL 3429204 (Tenn. S Ct July 15, 2014), it may be advisable to have the zoning board discuss the order or minute entry prior to adoption. I have for a long time suggested that the zoning board should not have to include a detailed motion in order to grant a particular application. Most of the requirements for relief before zoning board are quite detailed – take a look at the variance requirements under Tenn. Code Ann. § 13-7-207 (3) for example (and those are not all of the requirements) – and as a result any motion which attempts to cover each and every requirement is doomed to failure. Most lawyers or trial court could not do it. I know that I could not do it off the top of my head.
However, let me suggest that in the case of a variance, the motion made to grant a variance should include a reference to the exceptional physical feature of the property which the moving member of the board thinks is determinative. The exceptional physical feature of the property is the most important component of a variance, and if the moving member gives the staff or the lawyer representing the applicant that basic piece of information, it would seem to me that most courts would not think it is a logical for the board to allow the staff or the prevailing attorney to draft the order based on that information. Certainly, a good deal of additional information would have to be included, but as I say, the most important part of a variance application is the finding of an exceptional physical feature on the property itself.
In a similar manner, with regard to a conditional use permit (otherwise known as a special exception and many other different names), if the moving member clearly indicated that the use of the property in the manner requested was generally consistent with the other uses in the surrounding vicinity, and that any specific requirements for the conditional use had been complied with, once again, I think most reviewing courts would then allow the staff or the prevailing attorney to fill in the other more minor details of the order or minute entry.
Similarly, on a motion to deny the application, in the case of a variance, the motion might say that there is no exceptional physical feature on the property and/or that there is no hardship suffered by the applicant; and in the case of a conditional use permit, that the use of the property as proposed is not consistent with the other uses in the general vicinity and did not meet all of the requirements. In the case of a denial of a conditional use permit, it would behoove the moving member to specifically identify which of the specific requirements was not complied with. If none of them were complied with then simply say that.
The idea, as you can tell, is to limit the amount of information which must be contained in the motion. The complexity of framing a motion to grant a variance or conditional use permit makes doing that successfully on the spur of the moment almost impossible. Alternatively, if the attorney for the prevailing side so desires, language for suggested motion could be included with the letter justifying the appeal. I have not done this myself in the past, but I have seen it done on several occasions. I would suggest that any such suggested language should be fairly simple and straightforward without the complexity that we lawyers often interject. A sample of such language might be as follows:
I’ll make a motion to approve the variance to permit a reduction in the required sideyard, down to [x number of feet]. In this case, the property is exceptionally narrow when compared to other properties and this causes undue hardship because the applicant can’t use his property in a manner similar to other owners in the same area. This condition was not created by the applicant or others after the adoption of the zoning regulations, the variance won’t cause substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.
Let me add that I’ve never seen a motion that would be as good as this one. Notice that it is fairly lengthy even though I have kept it as short as I think reasonably possible. It might be advisable to add that the hardship is not solely based on pecuniary considerations and that the size of the variance is no more than necessary to cure the hardship. But unless the members of the zoning board are provided with a sample order such as this for every case, it would be very difficult for the members of the board to remember all of this, especially if the board had a docket of 10 to 20 cases, only some of which are variances.
Frankly, my experience is that most trial courts are so overjoyed to see anything remotely resembling an order or minute entry which addresses the specifics of a particular case that it is usually sufficient to persuade the court that the board’s decision, to grant or deny, will be upheld.
The decision in CBS Outdoor leaves a number of questions unanswered. Does the local government need to present some proof to the trial court concerning standing? Should the local government appear before the zoning board? Who makes the appearance? Assuming that the local government did not make an appearance before the zoning board, there would be no evidence of standing in the record, and assuming that the respondent denied the standing allegations in the petition for writ of certiorari, there would be no clear evidence of any harm to the local government without such proof. On the other hand, perhaps the Court of Appeals is signaling that the local government need not make any other showing than perhaps a reference to a local ordinance which it contends was not followed. Surely the ordinance itself would have to be introduced however before the trial court, and in the absence of a stipulation from respondent’s counsel, it’s not entirely clear how that takes place either. The trial court can take judicial notice of local zoning regulations upon notice (Rule 202 (b) of the Tennessee Rules of Evidence) but in a certiorari proceeding all the evidence should have been presented to the zoning board; allowing additional evidence, even the zoning regulations, arguably allows the court to consider factors which were not considered by the zoning board.
On the other hand, it has always seemed to me that local governments should have the ability to appeal under certain circumstances. The most obvious is where the local government owns a parcel property in the immediate vicinity of the proposal. In such a case, the local government is just like any other neighbor, and can appear before the zoning board opposing the application and appeal the decision on to a reviewing court. In a sense, the well-known City of Brentwood v Metro Board of Zoning Appeals, 149 S.W. 3d 49 (Tenn. App. 2004) represents this idea. Although Brentwood itself did not own property in the immediate vicinity, it was in that case an immediately adjacent neighbor, concerned about the construction of the sign which was at issue in that case.
Secondly, there are certainly times when local zoning boards make decisions which are so far beyond their ordinary activities that the decisions may need to be called into question. Two quick examples: first, where the zoning board grants a variance in the building code provisions. The zoning board has no authority over the building code, and should not be considering building code issues in its hearings. Secondly, if the zoning board violates some federally protected right or activity, litigation to protect those citizens whose rights are in issue may be necessary. For example, religious discrimination might be a basis for such an appeal.
But where the zoning board is exercising powers which are normally within its jurisdictional ken, such as considering variances, conditional use permits (special exceptions), or making determinations concerning non-conforming properties, it would seem unnecessary for the local government to have the right to sue its own zoning board and challenge its decision in a trial court. In fact, one wonders why we bother with zoning boards at all if the local government is free to appeal any decision they issue. In the CBS Outdoor case, there are no special issues. Metro contends that the zoning board decided a non-conforming property case erroneously. The Metro board of zoning appeals probably hears something in the vicinity of 50 to 75 such cases each year. This kind of case is certainly not anything unusual. It does not seem therefore to afford a basis for an appeal by the local government of its own zoning board’s decision.
Which brings us back to the main issue here: how to best protect against such an appeal. Once more, the best protection is to make sure that the record contains sufficient evidence to justify the decision, and that the order or minute entry of the board reflects findings of fact and conclusions of law which are consistent with the board’s decision. Customarily, I file a fairly lengthy letter with the zoning board approximately one week before the hearing date, detailing why my client complies (or in the case of opposition, why the applicant does not comply) with the requirements for the application. Assuming that the zoning board rules in my favor, I usually request permission to draft the minute entry and/or order of the board which will closely follow my letter. Generally speaking, I have found that it is quite difficult for anyone appealing such decisions to reverse because the combination of the letter (with the evidence), and the order (with findings of fact and conclusions of law) is usually very persuasive to the trial court.
One final note. Given the recent decision by the Tennessee Supreme Court concerning the manner required for trial courts to grant summary judgment pursuant to Rule 56.04 of the Tennessee Rules of Civil Procedure, Smith v UHS of Lakeside, 2014 WL 3429204 (Tenn. S Ct July 15, 2014), it may be advisable to have the zoning board discuss the order or minute entry prior to adoption. I have for a long time suggested that the zoning board should not have to include a detailed motion in order to grant a particular application. Most of the requirements for relief before zoning board are quite detailed – take a look at the variance requirements under Tenn. Code Ann. § 13-7-207 (3) for example (and those are not all of the requirements) – and as a result any motion which attempts to cover each and every requirement is doomed to failure. Most lawyers or trial court could not do it. I know that I could not do it off the top of my head.
However, let me suggest that in the case of a variance, the motion made to grant a variance should include a reference to the exceptional physical feature of the property which the moving member of the board thinks is determinative. The exceptional physical feature of the property is the most important component of a variance, and if the moving member gives the staff or the lawyer representing the applicant that basic piece of information, it would seem to me that most courts would not think it is a logical for the board to allow the staff or the prevailing attorney to draft the order based on that information. Certainly, a good deal of additional information would have to be included, but as I say, the most important part of a variance application is the finding of an exceptional physical feature on the property itself.
In a similar manner, with regard to a conditional use permit (otherwise known as a special exception and many other different names), if the moving member clearly indicated that the use of the property in the manner requested was generally consistent with the other uses in the surrounding vicinity, and that any specific requirements for the conditional use had been complied with, once again, I think most reviewing courts would then allow the staff or the prevailing attorney to fill in the other more minor details of the order or minute entry.
Similarly, on a motion to deny the application, in the case of a variance, the motion might say that there is no exceptional physical feature on the property and/or that there is no hardship suffered by the applicant; and in the case of a conditional use permit, that the use of the property as proposed is not consistent with the other uses in the general vicinity and did not meet all of the requirements. In the case of a denial of a conditional use permit, it would behoove the moving member to specifically identify which of the specific requirements was not complied with. If none of them were complied with then simply say that.
The idea, as you can tell, is to limit the amount of information which must be contained in the motion. The complexity of framing a motion to grant a variance or conditional use permit makes doing that successfully on the spur of the moment almost impossible. Alternatively, if the attorney for the prevailing side so desires, language for suggested motion could be included with the letter justifying the appeal. I have not done this myself in the past, but I have seen it done on several occasions. I would suggest that any such suggested language should be fairly simple and straightforward without the complexity that we lawyers often interject. A sample of such language might be as follows:
I’ll make a motion to approve the variance to permit a reduction in the required sideyard, down to [x number of feet]. In this case, the property is exceptionally narrow when compared to other properties and this causes undue hardship because the applicant can’t use his property in a manner similar to other owners in the same area. This condition was not created by the applicant or others after the adoption of the zoning regulations, the variance won’t cause substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.
Let me add that I’ve never seen a motion that would be as good as this one. Notice that it is fairly lengthy even though I have kept it as short as I think reasonably possible. It might be advisable to add that the hardship is not solely based on pecuniary considerations and that the size of the variance is no more than necessary to cure the hardship. But unless the members of the zoning board are provided with a sample order such as this for every case, it would be very difficult for the members of the board to remember all of this, especially if the board had a docket of 10 to 20 cases, only some of which are variances.
Frankly, my experience is that most trial courts are so overjoyed to see anything remotely resembling an order or minute entry which addresses the specifics of a particular case that it is usually sufficient to persuade the court that the board’s decision, to grant or deny, will be upheld.
Wednesday, September 24, 2014
Presumptive Standing
Radow v Board of Appeals of Hempstead, 989 NYS 2d 914 (App Div 2, Aug. 6, 214)
In an interesting case involving standing from New York, several neighbors challenged variances issued by the zoning board to a beach club. The very short opinion summarized the law in New York as requiring a direct injury different from that suffered by the public at large, and that the injury asserted falls within a zone of interests sought to be promoted by the regulation. Most interesting, injury in fact may arise from the existence of a presumption established by allegations demonstrating close proximity to the subject property or, in the absence of such presumption, the existence of actual and specific injury.
In this case, the neighbors lived .69 miles away from the project and the court concluded that they were not therefore entitled to a presumption of proximity. Further, the allegations of injury in fact due to overcrowding and congestion were, from the court's perspective purely speculative and not specific to the challengers and were indistinguishable from those suffered by the public at large. As a result, these neighbors lacks standing to file the lawsuit.
In Tennessee, we also have something of a presumption of proximity; for my own purposes, I usually think about a property within a quarter of a mile of the project as having automatic standing. However in Citizens for a Collierville v Collierville, 977 SW 2d 321 (Tenn. App. 1998), the Tennessee Court of Appeals seemed indicate that anything within 2000 linear feet would be appropriate. The court did not speak in terms of a presumption, but once that proximity was established, there is not much more analysis of any injury in fact.
In an interesting case involving standing from New York, several neighbors challenged variances issued by the zoning board to a beach club. The very short opinion summarized the law in New York as requiring a direct injury different from that suffered by the public at large, and that the injury asserted falls within a zone of interests sought to be promoted by the regulation. Most interesting, injury in fact may arise from the existence of a presumption established by allegations demonstrating close proximity to the subject property or, in the absence of such presumption, the existence of actual and specific injury.
In this case, the neighbors lived .69 miles away from the project and the court concluded that they were not therefore entitled to a presumption of proximity. Further, the allegations of injury in fact due to overcrowding and congestion were, from the court's perspective purely speculative and not specific to the challengers and were indistinguishable from those suffered by the public at large. As a result, these neighbors lacks standing to file the lawsuit.
In Tennessee, we also have something of a presumption of proximity; for my own purposes, I usually think about a property within a quarter of a mile of the project as having automatic standing. However in Citizens for a Collierville v Collierville, 977 SW 2d 321 (Tenn. App. 1998), the Tennessee Court of Appeals seemed indicate that anything within 2000 linear feet would be appropriate. The court did not speak in terms of a presumption, but once that proximity was established, there is not much more analysis of any injury in fact.
Many members of CFC have standing to bring the action based on their status as adjacent property owners. CFC has alleged sufficient facts to establish standing in its representative capacity to seek prospective relief for its members, many of whom own single family residential property within 2000 feet of the proposed planned development. Based on the foregoing, we conclude that CFC has standing to sue in its representational capacity.That quote certainly seems to make clear that if a neighbor lives within 2000 feet in Tennessee, there is a presumption of standing based on proximity to the project.
Wednesday, August 13, 2014
Wright v Shelbyville, Rd 3
There were two interesting land use cases decided by trial courts in Tennessee in the latter part of July. Today I’ll tackle Wright v City of Shelbyville and next week I’ll add a short summary of the second case.
The Shelbyville case has been going on for quite some time. In 2009, the Tennessee Court of Appeals reviewed a zoning change relating to this property and concluded that there had been procedural errors which necessitated invalidation of the zoning change. In 2012, the court overturned a trial court decision concluding that the quarry application for conditional use permit was barred by the doctrine of res judicata.
The case was again heard in trial court this past July, and Judge Ben Cantrell heard the case. Judge Cantrell has heard many of these zoning cases, having spent a number of years on the Davidson County Chancery Court, where there are always a number of zoning cases pending, and then of course during his tenure on the Tennessee Court of Appeals.
As always in these conditional use/special exception cases, the issue is whether or not there was any evidence before the Board of Zoning Appeals to justify the decision. Very often in conditional use/special exception cases, the only evidence offered against the proposal is lay testimony by owners of neighboring property. Ordinarily these kinds of witnesses don’t add much to the proceedings, because there lay opinions are usually not cognizable by the court. There were evidently several expert witnesses retained to testify in favor of the city. The applicant did argue that the performance standard should not be considered by the court, evidently contending that noise, vibration, and blasting regulations were not part of the approval process. From my point of view, I always urge my clients to demonstrate compliance with all such matters. Obviously, this has to be couched in terms of an opinion from an expert, but it seems important to assure the zoning board as well as any reviewing court that the performance standards can be observed in a meaningful way.
This case was complicated by two other factors. The local planning commission also reviewed the application as a site plan, and in addition, there is already an operating quarry not far away from the proposed location.
A number of jurisdictions utilize this two-step process of having a planning commission review ostensibly for site plan compliance, but it has never been very clear to me why that is necessary. From my point of view, a conditional use/special exception basically combines site plan review with consideration of the proposed land use. As a result, the zoning board should be considering the site plan as well as the use and the planning commission consideration seems somewhat superfluous.
In this case, the situation is even a little more interesting in that the members of the zoning board evidently are mostly also members of the planning commission. The planning commission approved the site plan, but then the zoning board turned down the use. It might be better to allow the zoning board under the circumstances to make the final decision with a recommendation from the planning commission, rather than having to go through two separate hearings on issues which appear to be closely related.
In addition, the operation of another quarry located reasonably closely to the proposed location meant that the impact of the new location might not be as significant. I will not take each factor in turn here, but a number of the criteria used by the local zoning board involved trying to ensure that the proposed activity was compatible with other land uses in the general vicinity. The proof shows that the quarry will be located in the back of the industrial park. But “the closest property where daily activities are conducted is the other quarry. Most of the surrounding properties are all zoned for heavy industry.”
Judge Cantrell did note that there were some residential uses within 2000 feet or so. Some of these residential neighbors testified before the zoning board, mainly about violations of the operation standards at the existing quarry. Because of the heavy industrial uses generally in that area, as well as the fact that violations of the regulations by one operator should not be held against another, the court concluded that general compatibility was established.
These types of cases are always difficult and my guess is that the city will appeal this case up to the Tennessee Court of Appeals.
One final interesting note in this matter is the fact that the chairman of the zoning board announced that he had a conflict of interest but that he would conduct the hearing but not participate in any discussion or voting. The trial court does not discuss this issue so I assume that he was not broached by either of the parties. There was another member who announced that his wife owned property in the general vicinity and, again, it’s unclear whether he recused himself or simply participated. My feeling is that board members who have a conflict should simply be excused from the hearing and not participate in any way. I’m not sure that this is legally required, but it certainly seems to me to likely prevent difficulties on down the road with criticisms possibly leveled at the board chair for the manner of conducting the hearing. In this case, as far as I know, there were no such complaints, but why take the risk?
In any event, this is a very interesting case and one which certainly bears some study. A copy of the case is available here.
The Shelbyville case has been going on for quite some time. In 2009, the Tennessee Court of Appeals reviewed a zoning change relating to this property and concluded that there had been procedural errors which necessitated invalidation of the zoning change. In 2012, the court overturned a trial court decision concluding that the quarry application for conditional use permit was barred by the doctrine of res judicata.
The case was again heard in trial court this past July, and Judge Ben Cantrell heard the case. Judge Cantrell has heard many of these zoning cases, having spent a number of years on the Davidson County Chancery Court, where there are always a number of zoning cases pending, and then of course during his tenure on the Tennessee Court of Appeals.
As always in these conditional use/special exception cases, the issue is whether or not there was any evidence before the Board of Zoning Appeals to justify the decision. Very often in conditional use/special exception cases, the only evidence offered against the proposal is lay testimony by owners of neighboring property. Ordinarily these kinds of witnesses don’t add much to the proceedings, because there lay opinions are usually not cognizable by the court. There were evidently several expert witnesses retained to testify in favor of the city. The applicant did argue that the performance standard should not be considered by the court, evidently contending that noise, vibration, and blasting regulations were not part of the approval process. From my point of view, I always urge my clients to demonstrate compliance with all such matters. Obviously, this has to be couched in terms of an opinion from an expert, but it seems important to assure the zoning board as well as any reviewing court that the performance standards can be observed in a meaningful way.
This case was complicated by two other factors. The local planning commission also reviewed the application as a site plan, and in addition, there is already an operating quarry not far away from the proposed location.
A number of jurisdictions utilize this two-step process of having a planning commission review ostensibly for site plan compliance, but it has never been very clear to me why that is necessary. From my point of view, a conditional use/special exception basically combines site plan review with consideration of the proposed land use. As a result, the zoning board should be considering the site plan as well as the use and the planning commission consideration seems somewhat superfluous.
In this case, the situation is even a little more interesting in that the members of the zoning board evidently are mostly also members of the planning commission. The planning commission approved the site plan, but then the zoning board turned down the use. It might be better to allow the zoning board under the circumstances to make the final decision with a recommendation from the planning commission, rather than having to go through two separate hearings on issues which appear to be closely related.
In addition, the operation of another quarry located reasonably closely to the proposed location meant that the impact of the new location might not be as significant. I will not take each factor in turn here, but a number of the criteria used by the local zoning board involved trying to ensure that the proposed activity was compatible with other land uses in the general vicinity. The proof shows that the quarry will be located in the back of the industrial park. But “the closest property where daily activities are conducted is the other quarry. Most of the surrounding properties are all zoned for heavy industry.”
Judge Cantrell did note that there were some residential uses within 2000 feet or so. Some of these residential neighbors testified before the zoning board, mainly about violations of the operation standards at the existing quarry. Because of the heavy industrial uses generally in that area, as well as the fact that violations of the regulations by one operator should not be held against another, the court concluded that general compatibility was established.
These types of cases are always difficult and my guess is that the city will appeal this case up to the Tennessee Court of Appeals.
One final interesting note in this matter is the fact that the chairman of the zoning board announced that he had a conflict of interest but that he would conduct the hearing but not participate in any discussion or voting. The trial court does not discuss this issue so I assume that he was not broached by either of the parties. There was another member who announced that his wife owned property in the general vicinity and, again, it’s unclear whether he recused himself or simply participated. My feeling is that board members who have a conflict should simply be excused from the hearing and not participate in any way. I’m not sure that this is legally required, but it certainly seems to me to likely prevent difficulties on down the road with criticisms possibly leveled at the board chair for the manner of conducting the hearing. In this case, as far as I know, there were no such complaints, but why take the risk?
In any event, this is a very interesting case and one which certainly bears some study. A copy of the case is available here.
Monday, July 7, 2014
More on the Takings Clause
The takings clause continues to be of great interest not only practically from the point of view of land use lawyers, but academically as well. Recently, the Turo Law Review held a symposium devoted to the takings issue and the Law Review has recently published papers dealing with the topics discussed during that symposium. You can read and download copies of the academic papers here. The topics include standing issues such as those developed in the Williamson County case, the nuisance and state law exceptions to the Lucas rule, and of course the Nollan, Dolan and Koontz trilogy. I have only had an opportunity to read a couple of the articles, but the ones I have read have been quite interesting and if you have any cases in this area of the law, it certainly would be wise to take a look and see if any of the papers presented have an impact or offer greater insight into your legal cause of action.
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