This case, decided at the end of October, is an illustration of the difficulties involved in defeating the local government regarding any kind of a zoning change. Whether the local government has granted the zoning change and the neighbors challenge the change, or deny the change and the applicant challenges the decision, it is very difficult for the losing party to successfully challenge the decision of the local government. It is once again one of those instances where fighting city hall is difficult to do.
Over the next couple of days, I will discuss this case. Today I will simply look at the factual background and procedural history as recited by the Tennessee Court of Appeals. You can find a copy of the case here.
The property involved in this case was zoned residential and the owner tried unsuccessfully several times to have the property rezoned for commercial use. This case arises out of his efforts to obtain a zoning change to commercial use filed in May 2013.
The court indicates that the Planning Commission recommended the zoning change from residential to commercial. However, at the next meeting of the local legislative body, while there was a motion and second to approve the rezoning, it failed to pass.
Nevertheless, the application was placed on the agenda for a subsequent meeting of the local legislative body and a public hearing was held as part of that meeting. The applicant and his attorney spoke in favor of the application and a resident of a local subdivision, located adjacent to the property, spoke against it. For one reason or another, there was a motion made to defer consideration of the zoning change and remand to the Planning Commission.
It’s unclear whether the case ever went back to the Planning Commission. The opinion does not indicate any further action by the Planning Commission. However, at the next meeting of the local legislative body, the application was again considered, and a motion was made to approve and seconded, but the motion failed. Neither Mr. Cunningham nor his attorney was given the opportunity to speak prior to the vote.
The failure to approve the requested zoning change was challenged by filing a declaratory judgment action in Chancery Court. Notice that in challenging a zoning change, the appropriate manner of doing so is by way of a declaratory judgment. In many other instances, on an appeal from the planning commission, on appeal from the board of zoning appeals, and on appeal from certain kinds of special zoning techniques from the local legislative body, the proper method is to file a petition for writ of certiorari. But where the local legislative body considers a straight zoning change, say from residential to commercial as in this case, the appropriate manner of challenging the decision is by way of declaratory judgment.
The plaintiff alleged that the denial of the zoning change was arbitrary, capricious and illegal and that there was no rational or justifiable basis for the decision of the local legislative body. The complaint also alleged violations of the applicant’s due process and equal protection rights and that the failure to grant a zoning change rendered the county liable for inverse condemnation/regulatory taking of the property.
There were four days of hearings before the trial court although the Court of Appeals does not indicate much by way of what testimony was adduced. The trial court ultimately found that:
– the decision of the local legislative body was arbitrary and capricious,
– the plaintiffs due process rights were violated,
– there was no regulatory taking,
– no violation of the sunshine law and
– the members of the local legislative body were acting within the scope of their authority in carrying out their duties.
The court ordered that the property be rezoned from residential to commercial, and awarded damages in the amount of $75,600 plus interest and attorneys fees in the amount of $10,000.
The plaintiff appealed seeking lost profits other damages and also asking that the trial court decision finding no regulatory taking be reversed. The defendants for their part, raised an additional issue as to whether or not the decision to deny the zoning change was arbitrary and capricious and violation of the plaintiff’s due process rights.
This case gives us an excellent opportunity to discuss not only the perils and pitfalls of challenging a local governmental decision concerning zoning changes, but also the various theories which might be used by a plaintiff to challenge such a decision. Since the Court of Appeals ultimately concludes that the trial court was incorrect in finding any violation of the law whatsoever, it also demonstrates how difficult it is to prevail under the circumstances.
We will take a look at the basic issues concerning zoning changes next time, discuss regulatory takings at a future date and then finally look at the procedural and substantive due process issues after that.
Wednesday, October 31, 2018
Friday, July 27, 2018
Administrative Search Warrants
In a case which I think is the first of its kind, the Tennessee Court of Appeals recently addressed the validity of administrative search warrants issued pursuant to the Tennessee State Building Code Act, Tenn. Code Ann. §68-120-117, and upholds the validity of the warrants against attack.
Let's quickly mention that this all began in the '60s, when there was a debate at the highest level regarding the constitutionality of administrative search warrants. Towards the end of the '50s and the early '60s, the US Supreme Court had concluded that administrative search warrants, those necessary to enforce the housing and building codes, did not have to comply with the constitutional imperative of search warrants.
That changed with the decision in Camara v Municipal Court, 387 US 523, 18 L. Ed. 2d 930, 87 S Ct 1727 (1967). The issue in that case was an attempted warrantless entry and search of an apartment by two housing code inspectors. The owner of the apartment steadfastly refused to allow entry, and he was ultimately cited under a San Francisco ordinance which made it illegal to deny entry. He was prosecuted under that ordinance, found guilty, and the case was ultimately heard by the US Supreme Court.
The issue before the court was whether or not a warrant was necessary to conduct the inspection over the objection of the property owner. The conclusion by the Supreme Court was that indeed a search warrant was necessary, reversing the earlier decisions. Of course, from the standpoint of enforcing the building and housing codes, this is a nonstarter: ordinarily, the codes inspector can't see inside the house, has no authority to enter the house (without a warrant), and thus if you need to know what's in the house before you can get the warrant, and can't be in the house without a warrant, then it becomes extremely difficult to enforce the provisions of the building and housing codes.
The Supreme Court however wasn't finished: it held that probable cause for a search warrant in codes cases is not the same as that which is necessary in a criminal case. Rather than demonstrating a reasonable belief that a crime has been committed, the codes inspector needs only show reasonable legislative or administrative standards for conducting an area inspection and some indication that those are satisfied with regard to a particular building, such as (1) the passage of time since the last inspection; (2) the nature of the use of the building; or (3) the conditions of the general area in which the property is located. This is obviously a much less imposing standard for probable cause than in a criminal case.
On the same day, the court decided See v City of Seattle, 387 US 541 (1967) which involved a fire code inspection of a locked commercial warehouse. Once again, the court upheld the requirement of a search warrant, but with the more limited nature of probable cause now applicable in a codes case.
Finally, let's take a look at a more current decision. In Jacob v West Bloomfield, (6th Cir. 2008) the plaintiff alleged that the codes official entered his property without a warrant to inspect for codes violation. He sued under the federal civil rights statute for a violation of the fourth amendment. The zoning official had received a complaint about the plaintiff's property and upon investigation discovered inoperable vehicles and scrap material in the yard. Misdemeanor charges were filed against Mr. Jacob and he ultimately pled guilty. The Township agreed as part of the plea arrangement that the defendant would have 14 days to clean up the property and if not cleaned up Mr. Jacob would be sentenced to 30 days in jail.
In order to carry out the agreement, the zoning official entered the property on October 15 and 18th without a warrant but at the request of the prosecuting attorney. The inspector found that the violation had not been remedied and Mr. Jacob wound up in jail.
The inspections done to establish the original violation were not an issue because the defendant had pled guilty. By doing so, the defendant waived any question about those inspections. But the Sixth Circuit held that the remaining inspections had not been agreed to and that they were unlawful under the terms of the Fourth amendment to the federal constitution. While the zoning official argued that the inspections were much less intrusive than a criminal search, done by an unarmed officer, during the day, and were not subject to the Fourth amendment, the court simply did not accept that line of argument based on Camara and See. The Sixth Circuit upheld the decision of the lower court that the zoning official was not entitled to immunity and ultimately the court awarded money damages against the zoning official.
After the decision in Camara, the Tennessee General Assembly despite numerous requests, did not take up the issue of administrative search warrants for several decades. In fact, legislation was not passed until 2003. It is now codified at Tenn. Code Ann. §68-120-117. Subsection (b) provides:
The warrant may issue upon affidavit filed by the building code official demonstrating that his or her agency has the statutory authority to conduct the inspection and demonstrating probable cause. However, the statute particularly notes that probable cause under the terms of this section of the code is not the same standard as used in obtaining criminal search warrants. The statute specifically states that probable cause can be based upon a showing that:
All warrants issued pursuant to §117 must include:
At the same time, anyone who believes the inspection was unlawful may move to suppress any evidence before the agency and if the inspection was unlawful the evidence must be suppressed and not considered in the proceeding.
In the Levitt case, the plaintiff first argued that this was a general warrant which is not recognized under Tennessee law. The court quickly pointed out that while such an objection in criminal procedure would be well taken, the statutory process set out here was much different, and the information necessary to obtain the warrant was much less. Essentially, if the inspection is part of a routine periodic inspection, or based on complaints showing a potential violation, or any other constitutionally appropriate inspection, which would include, under the Camara and See cases general deterioration in the area in which the building is located.
Levitt objected to the affidavits upon which the search warrant was based for several reasons, including a failure to identify the agency, and the specific description of the property to be searched. The court found no merit in these arguments.
So far as I know, this is the first case in Tennessee to really address the issue of administrative search warrants at the appellate court level. This case should be highlighted by local government attorneys and local government codes officials. For the first time since the adoption of the statute, we now have case law specifically concluding that the statutory requirements are reasonable and in fulfilling those requirements, codes officials no longer have to rely on consent for entry onto property.
I'll close here with the admonition that I put in my Legal Handbook for Tennessee Codes Officials at page 64. No inspections without a warrant or permission! Every codes official should understand that prior to doing any inspection, he or she should ask the owner or occupant for permission to do the inspection, and if permission is not granted, then obtain an administrative search warrant. If permission is given, make sure to note in the inspection report, who gave the permission, the date and time of the permission as well as the inspection, and the relationship of the person who gave permission to the property.
Let's quickly mention that this all began in the '60s, when there was a debate at the highest level regarding the constitutionality of administrative search warrants. Towards the end of the '50s and the early '60s, the US Supreme Court had concluded that administrative search warrants, those necessary to enforce the housing and building codes, did not have to comply with the constitutional imperative of search warrants.
That changed with the decision in Camara v Municipal Court, 387 US 523, 18 L. Ed. 2d 930, 87 S Ct 1727 (1967). The issue in that case was an attempted warrantless entry and search of an apartment by two housing code inspectors. The owner of the apartment steadfastly refused to allow entry, and he was ultimately cited under a San Francisco ordinance which made it illegal to deny entry. He was prosecuted under that ordinance, found guilty, and the case was ultimately heard by the US Supreme Court.
The issue before the court was whether or not a warrant was necessary to conduct the inspection over the objection of the property owner. The conclusion by the Supreme Court was that indeed a search warrant was necessary, reversing the earlier decisions. Of course, from the standpoint of enforcing the building and housing codes, this is a nonstarter: ordinarily, the codes inspector can't see inside the house, has no authority to enter the house (without a warrant), and thus if you need to know what's in the house before you can get the warrant, and can't be in the house without a warrant, then it becomes extremely difficult to enforce the provisions of the building and housing codes.
The Supreme Court however wasn't finished: it held that probable cause for a search warrant in codes cases is not the same as that which is necessary in a criminal case. Rather than demonstrating a reasonable belief that a crime has been committed, the codes inspector needs only show reasonable legislative or administrative standards for conducting an area inspection and some indication that those are satisfied with regard to a particular building, such as (1) the passage of time since the last inspection; (2) the nature of the use of the building; or (3) the conditions of the general area in which the property is located. This is obviously a much less imposing standard for probable cause than in a criminal case.
On the same day, the court decided See v City of Seattle, 387 US 541 (1967) which involved a fire code inspection of a locked commercial warehouse. Once again, the court upheld the requirement of a search warrant, but with the more limited nature of probable cause now applicable in a codes case.
Finally, let's take a look at a more current decision. In Jacob v West Bloomfield, (6th Cir. 2008) the plaintiff alleged that the codes official entered his property without a warrant to inspect for codes violation. He sued under the federal civil rights statute for a violation of the fourth amendment. The zoning official had received a complaint about the plaintiff's property and upon investigation discovered inoperable vehicles and scrap material in the yard. Misdemeanor charges were filed against Mr. Jacob and he ultimately pled guilty. The Township agreed as part of the plea arrangement that the defendant would have 14 days to clean up the property and if not cleaned up Mr. Jacob would be sentenced to 30 days in jail.
In order to carry out the agreement, the zoning official entered the property on October 15 and 18th without a warrant but at the request of the prosecuting attorney. The inspector found that the violation had not been remedied and Mr. Jacob wound up in jail.
The inspections done to establish the original violation were not an issue because the defendant had pled guilty. By doing so, the defendant waived any question about those inspections. But the Sixth Circuit held that the remaining inspections had not been agreed to and that they were unlawful under the terms of the Fourth amendment to the federal constitution. While the zoning official argued that the inspections were much less intrusive than a criminal search, done by an unarmed officer, during the day, and were not subject to the Fourth amendment, the court simply did not accept that line of argument based on Camara and See. The Sixth Circuit upheld the decision of the lower court that the zoning official was not entitled to immunity and ultimately the court awarded money damages against the zoning official.
After the decision in Camara, the Tennessee General Assembly despite numerous requests, did not take up the issue of administrative search warrants for several decades. In fact, legislation was not passed until 2003. It is now codified at Tenn. Code Ann. §68-120-117. Subsection (b) provides:
In the event that a building official is denied permission to make an inspection and a warrant is required by the Constitution of the United States or the state of Tennessee to perform such inspection, a building official may obtain an administrative inspection warrant in accordance with the procedures outlined in this section.The term "building official" is defined to mean any local government building official certified under state law, acting in their capacity as an official of any municipality or county in an attempt to enforce the ordinances or codes of the local government. Tenn. Code Ann. §68-120-117 (a) (2).
The warrant may issue upon affidavit filed by the building code official demonstrating that his or her agency has the statutory authority to conduct the inspection and demonstrating probable cause. However, the statute particularly notes that probable cause under the terms of this section of the code is not the same standard as used in obtaining criminal search warrants. The statute specifically states that probable cause can be based upon a showing that:
- Previous inspection section violations of the law in the present inspection is necessary to determine whether those violations have been abated (remember the Jacob case from the Sixth Circuit);
- Complaints have been received from persons who have personal knowledge of violations of the law;
- The inspection is to be made pursuant to an administrative plan containing neutral criteria supporting the need for an inspection (routine periodic inspections under the housing code)
- Any other showing consistent with constitutional standards for probable cause in administrative inspections
All warrants issued pursuant to §117 must include:
- The name of the agency and building code official requesting a warrant
- The statutory or regulatory authority for the inspection
- The names of the building code official or officials authorized to conduct the administrative inspection
- A reasonable description of the property and items to be inspected
- A brief description of the purposes for the inspection
- And any other requirement or particularity required by the constitutions of the United States and the state of Tennessee regarding in ministry of inspections
At the same time, anyone who believes the inspection was unlawful may move to suppress any evidence before the agency and if the inspection was unlawful the evidence must be suppressed and not considered in the proceeding.
In the Levitt case, the plaintiff first argued that this was a general warrant which is not recognized under Tennessee law. The court quickly pointed out that while such an objection in criminal procedure would be well taken, the statutory process set out here was much different, and the information necessary to obtain the warrant was much less. Essentially, if the inspection is part of a routine periodic inspection, or based on complaints showing a potential violation, or any other constitutionally appropriate inspection, which would include, under the Camara and See cases general deterioration in the area in which the building is located.
Levitt objected to the affidavits upon which the search warrant was based for several reasons, including a failure to identify the agency, and the specific description of the property to be searched. The court found no merit in these arguments.
So far as I know, this is the first case in Tennessee to really address the issue of administrative search warrants at the appellate court level. This case should be highlighted by local government attorneys and local government codes officials. For the first time since the adoption of the statute, we now have case law specifically concluding that the statutory requirements are reasonable and in fulfilling those requirements, codes officials no longer have to rely on consent for entry onto property.
I'll close here with the admonition that I put in my Legal Handbook for Tennessee Codes Officials at page 64. No inspections without a warrant or permission! Every codes official should understand that prior to doing any inspection, he or she should ask the owner or occupant for permission to do the inspection, and if permission is not granted, then obtain an administrative search warrant. If permission is given, make sure to note in the inspection report, who gave the permission, the date and time of the permission as well as the inspection, and the relationship of the person who gave permission to the property.
Thursday, April 12, 2018
STRP Bill -- to Conference?
The Tennessee House of Representatives evidently did not agree with the Senate version of the Short Term Rental Properties legislation, and presumably, the House and Senate will need to meet to resolve the issues. It's not clear what particularly concerned members of the House. Most likely, that there was not enough protection for short term rental property owners, but that's not entirely clear. Presumably, over the next several weeks, we will get a final bill and be able to understand more completely how it will impact local zoning and land use regulations.
Tuesday, April 3, 2018
California Prohibits Public Land Sale without First Refusal
Yesterday, the US Attorney General filed suit on behalf of the United States against the state of California arguing that the adoption by California of a statutory provision which required the federal government to give notice to and obtain from the state documentation that the state did not want to buy for itself or arrange a sale to a third party before selling federal public lands. A number of news outlets, including the New York Times have reported on the filing of the lawsuit and a copy can be found here.
I have not actually read the California statutory provision but it purports to be summarized in the complaint filed by the US. Obviously, California feel strongly about the sale of federal public lands and the conversion of open land in its natural state to developed land. On the other hand, that desire to protect federal land runs not only into the Supremacy and Public Property Clauses of the federal Constitution, but also into various federal statutory provisions relating to the use and sale of federal public lands.
Ideologically, the state desire to protect federal public land against the conversion of at least a portion of the land by the Trump administration represents a basic conflict between two points of view regarding the use of federal public land. Unfortunately, this may be more of a political decision-making process than a legal one: federal constitutional and statutory law would at least seem to have the upper hand here.
It is interesting to read the 1940 case involving the city of San Francisco: US v City and County of San Francisco, authored by one of my favorite Supreme Court Justices, Hugo Black, who noted, after quoting the Public Property Clause:
I have not actually read the California statutory provision but it purports to be summarized in the complaint filed by the US. Obviously, California feel strongly about the sale of federal public lands and the conversion of open land in its natural state to developed land. On the other hand, that desire to protect federal land runs not only into the Supremacy and Public Property Clauses of the federal Constitution, but also into various federal statutory provisions relating to the use and sale of federal public lands.
Ideologically, the state desire to protect federal public land against the conversion of at least a portion of the land by the Trump administration represents a basic conflict between two points of view regarding the use of federal public land. Unfortunately, this may be more of a political decision-making process than a legal one: federal constitutional and statutory law would at least seem to have the upper hand here.
It is interesting to read the 1940 case involving the city of San Francisco: US v City and County of San Francisco, authored by one of my favorite Supreme Court Justices, Hugo Black, who noted, after quoting the Public Property Clause:
The power over the public land thus entrusted to Congress is without limitations. And it is not for the courts to say how that trust shall be administered. That is for Congress to determine. Thus, Congress may constitutionally limit the disposition of the public domain to a manner consistent with its views of public policy.In any event, it should be interesting following the arguments of both parties.
Saturday, March 31, 2018
Challenging the Historic Zoning Commission
In an opinion issued just yesterday by the Tennessee Court of Appeals, a decision of the Metro Historic Zoning Commission is reviewed and illustrates several important points when challenging decisions of the historic zoning commission. The case involves a property located on Lower Broadway here in Nashville. MJM v Metro Historic Zoning Commission, Tenn. App. 2018.
Both the procedural and substantive aspects of this case are worth noting. First, the case was appealed pursuant to the statutory writ of certiorari, specifically authorized in the historic enabling legislation. Tenn. Code Ann. § 13-7-409 states that "anyone who may be aggrieved by any final order or judgment of the historic zoning commission… may have such order or judgment reviewed by the courts by the procedure of statutory certiorari." As the MJM court noted, review pursuant to the statutory writ means that the trial court may hold a new hearing based upon the administrative record and any additional or supplemental evidence which either party wishes to produce at trial. Furthermore, although the appellate court did not expressly say this, the statutory writ allows the trial court to substitute its judgment for that of the administrative body and make whatever decision the court feels is appropriate based on all of the evidence. Tenn. Code Ann. § 27-9-111(d).
Almost every other species of administrative appeal in land use planning and zoning cases here in Tennessee are pursuant to the common law writ of certiorari, which is much different. In a case brought pursuant to the common law writ, no new evidence may be submitted to the trial court (absent exceptional circumstances), and the trial court may only disturb the ruling of the administrative body upon a finding of illegal, fraudulent, or arbitrary and capricious action. This makes it difficult to reverse any administrative decision which must be appealed pursuant to the common law writ, which is in fact most zoning decisions.
The first thing to notice here is that most people either do not realize or do not understand that review pursuant to the statutory writ of certiorari is available. Ordinarily, from my perspective, this gives an advantage to the applicant because a wide array of proof which might have been too expensive to adduce at the administrative hearing may be more easily available for a trial court hearing. However, that is not to say that an attorney handling such a case should not be aware of a choice between the common law and statutory writs in such cases. If the attorney seeking the appeal believes that the record below is much better for the appellant as a result of some failure of the Historic Zoning Commission to have sufficient proof which ruling in front of it, it may be worthwhile to file a request for review under the common law writ of certiorari. Without objection, the court will ordinarily here the case as a common law writ, preventing the presentation of additional proof by the historic zoning commission. Bear in mind, that is the historic zoning commission is aware of the law in Tennessee, and frankly, that is often not the case, the commission can argue to the court that the case should be opened up, an additional proof permitted. In my experience, that is not happen very often. For example, in Byron Avenue v Metro Historic Zoning Commission, a case in which I was tangentially involved, review was pursuant to the common law writ of certiorari because that was the type of review requested by the petitioner. No objection was made and although the standard of review was higher (the arbitrary and capricious standard), because the proof was so one-sided in favor of the petitioner, the Court of Appeals ultimately reverse the decision of the historic zoning commission and remanded for further proceedings, where the petitioner ultimately prevail.
Obviously, this is a judgment call that must be made by the attorney based on his or her evaluation of the proof as it was adduced before the administrative agency. In most instances, I believe that the statutory writ of certiorari, with the lower burden of proof and the ability to introduce additional evidence is far superior; but there are certainly cases where the attorney representing the party seeking review might decide that at least asking for the common law writ without bothering about the statutory writ, might be a better strategy.
Finally, there is one other aspect of the statutory vs. common law writ of certiorari which should be noted here. To the extent that the statutory writ of certiorari is made available to review actions of a legislative or executive nature, it is not constitutional. The leading case, decided back in the 50s, is Hoover v Public Utilities Commission, 195 Tenn. 592, 261 S.W. 2d 233, 238 (1953). Why is the historic zoning commission in applying its rules and regulations to a particular piece of property any different from the board of zoning appeals in administering the zoning ordinance as applied to a particular piece of property? In fact, there would appear to be no difference yet the board of zoning appeals decisions are appealed pursuant to the common law writ of certiorari, and the historic zoning commission is subject to the statutory writ of certiorari. So far as I know, no one has ever brought this up and as a result, it has not been addressed by any Appellate Ct. in Tennessee. But if, for example, the attorney for the petitioner, was seeking a common law writ and the attorney for the historic zoning commission argued that the statutory writ was available pursuant to the specific statutory authority, the constitutionality of that statute would be worth challenging. It is certainly an interesting question of administrative law.
Substantively, this case is interesting as well. Essentially, the petitioner/property owner wanted to make various changes to the exterior of the building. The historic zoning commission approved many of the proposed changes, but rejected proposed changes to the front windows, and required a parapet wall on the roof as opposed to a railing.
The petitioner argued that because substantial changes had previously been made to the property, much of the historic value had been lost. The trial court perhaps said it best:
With regard to the required parapet wall on the roof, the same staff member testified that a railing would allow our view of the additional stories which were being added to the building but that a parapet wall would prefer that view and the more consistent with the adopted guidelines for the area.
Is there any lesson which can be gleaned from these conclusions? First, it is very difficult to launch a direct attack on guidelines for any historic area. A review of any historic zoning ordinance and guidelines for any particular area will quickly demonstrate that the language is very ambiguous and difficult to apply in an objective manner. Most courts are going to lean heavily on the historic zoning commission and its staff regarding the proper application of the guidelines and regulations.
Second, that means to me that the argument to be constructed should usually be to demonstrate that the proposed alterations are consistent with the historic guidelines. While that is often difficult to do at the level of the administrative decision maker, hiring an outside expert, beyond someone who simply has an engineering or architectural degree, is frequently the best way to go. Hiring an expert with the historical background to support your position will at least give the court an additional view on the way the guidelines should be interpreted and applied. To my way of thinking, that is the preferable approach but of course it assumes that you can find a preservationist who supports the proposed alterations suggested by the property owner.
This is an interesting case, but I fear very typical in the area of historic zoning. Because the statutes, ordinances, and regulations (frequently called guidelines, but if you read those guidelines carefully, you will see that the staff always really thinks of them as regulations) are often ambiguous, the court relies on the staff to understand their meaning. Typically, in the context of other zoning decisions subject to review, there are objective criteria which must be met and if they are met, the permit should issue. For example, in the case of a special exception/conditional use permit, if the applicant demonstrates compliance with the required conditions, the permit should issue. To the extent that a number of neighbors may appear and oppose, causing the zoning board for example to deny the application, there is a significant chance of reversal on appeal. Look at it from another perspective, from the point of view of the neighbors: in a variance case, if the developer does not demonstrate compliance with the requirements of the statute for variances, then if the variance is granted it is also subject to reversal on appeal. In both of those instances there are usually objective criteria by which to make the decision. Because the historic zoning regulations generally are much less objective, it increases the difficulty of successfully appealing a decision of the historic zoning commission, whether you are the applicant/landowner or a neighboring property owner.
Both the procedural and substantive aspects of this case are worth noting. First, the case was appealed pursuant to the statutory writ of certiorari, specifically authorized in the historic enabling legislation. Tenn. Code Ann. § 13-7-409 states that "anyone who may be aggrieved by any final order or judgment of the historic zoning commission… may have such order or judgment reviewed by the courts by the procedure of statutory certiorari." As the MJM court noted, review pursuant to the statutory writ means that the trial court may hold a new hearing based upon the administrative record and any additional or supplemental evidence which either party wishes to produce at trial. Furthermore, although the appellate court did not expressly say this, the statutory writ allows the trial court to substitute its judgment for that of the administrative body and make whatever decision the court feels is appropriate based on all of the evidence. Tenn. Code Ann. § 27-9-111(d).
Almost every other species of administrative appeal in land use planning and zoning cases here in Tennessee are pursuant to the common law writ of certiorari, which is much different. In a case brought pursuant to the common law writ, no new evidence may be submitted to the trial court (absent exceptional circumstances), and the trial court may only disturb the ruling of the administrative body upon a finding of illegal, fraudulent, or arbitrary and capricious action. This makes it difficult to reverse any administrative decision which must be appealed pursuant to the common law writ, which is in fact most zoning decisions.
The first thing to notice here is that most people either do not realize or do not understand that review pursuant to the statutory writ of certiorari is available. Ordinarily, from my perspective, this gives an advantage to the applicant because a wide array of proof which might have been too expensive to adduce at the administrative hearing may be more easily available for a trial court hearing. However, that is not to say that an attorney handling such a case should not be aware of a choice between the common law and statutory writs in such cases. If the attorney seeking the appeal believes that the record below is much better for the appellant as a result of some failure of the Historic Zoning Commission to have sufficient proof which ruling in front of it, it may be worthwhile to file a request for review under the common law writ of certiorari. Without objection, the court will ordinarily here the case as a common law writ, preventing the presentation of additional proof by the historic zoning commission. Bear in mind, that is the historic zoning commission is aware of the law in Tennessee, and frankly, that is often not the case, the commission can argue to the court that the case should be opened up, an additional proof permitted. In my experience, that is not happen very often. For example, in Byron Avenue v Metro Historic Zoning Commission, a case in which I was tangentially involved, review was pursuant to the common law writ of certiorari because that was the type of review requested by the petitioner. No objection was made and although the standard of review was higher (the arbitrary and capricious standard), because the proof was so one-sided in favor of the petitioner, the Court of Appeals ultimately reverse the decision of the historic zoning commission and remanded for further proceedings, where the petitioner ultimately prevail.
Obviously, this is a judgment call that must be made by the attorney based on his or her evaluation of the proof as it was adduced before the administrative agency. In most instances, I believe that the statutory writ of certiorari, with the lower burden of proof and the ability to introduce additional evidence is far superior; but there are certainly cases where the attorney representing the party seeking review might decide that at least asking for the common law writ without bothering about the statutory writ, might be a better strategy.
Finally, there is one other aspect of the statutory vs. common law writ of certiorari which should be noted here. To the extent that the statutory writ of certiorari is made available to review actions of a legislative or executive nature, it is not constitutional. The leading case, decided back in the 50s, is Hoover v Public Utilities Commission, 195 Tenn. 592, 261 S.W. 2d 233, 238 (1953). Why is the historic zoning commission in applying its rules and regulations to a particular piece of property any different from the board of zoning appeals in administering the zoning ordinance as applied to a particular piece of property? In fact, there would appear to be no difference yet the board of zoning appeals decisions are appealed pursuant to the common law writ of certiorari, and the historic zoning commission is subject to the statutory writ of certiorari. So far as I know, no one has ever brought this up and as a result, it has not been addressed by any Appellate Ct. in Tennessee. But if, for example, the attorney for the petitioner, was seeking a common law writ and the attorney for the historic zoning commission argued that the statutory writ was available pursuant to the specific statutory authority, the constitutionality of that statute would be worth challenging. It is certainly an interesting question of administrative law.
Substantively, this case is interesting as well. Essentially, the petitioner/property owner wanted to make various changes to the exterior of the building. The historic zoning commission approved many of the proposed changes, but rejected proposed changes to the front windows, and required a parapet wall on the roof as opposed to a railing.
The petitioner argued that because substantial changes had previously been made to the property, much of the historic value had been lost. The trial court perhaps said it best:
There is an implicit grandfather provision in the [Historic Preservation] Guidelines and in the statutes which indicate that the property or preexisting condition of property in 2007 [when the historic district was created] may be preserved by the owner, but when alterations and additions and other changes, replacements, take place, then those alterations, replacements, and buildings must be in keeping with the 1935, that is the historic building….And the Court finds here that since [Petitioner] wants to alter its year 2000 windows that it used to replace the historic windows…it must now alter them in compliance with the historic guidelines. And [Petitioner] has not carried its burden to show that it is entitled to a Preservation Permit allowing those roll-up windows, because they are not historic.The petitioner argued that the historic zoning commission based its denial of the proposed replacement windows upon their function, but the testimony at the hearing by one of the commission staff members clearly indicated that the windows proposed when open would appear vacant and inconsistent with the historical construction elsewhere on Lower Broadway.
With regard to the required parapet wall on the roof, the same staff member testified that a railing would allow our view of the additional stories which were being added to the building but that a parapet wall would prefer that view and the more consistent with the adopted guidelines for the area.
Is there any lesson which can be gleaned from these conclusions? First, it is very difficult to launch a direct attack on guidelines for any historic area. A review of any historic zoning ordinance and guidelines for any particular area will quickly demonstrate that the language is very ambiguous and difficult to apply in an objective manner. Most courts are going to lean heavily on the historic zoning commission and its staff regarding the proper application of the guidelines and regulations.
Second, that means to me that the argument to be constructed should usually be to demonstrate that the proposed alterations are consistent with the historic guidelines. While that is often difficult to do at the level of the administrative decision maker, hiring an outside expert, beyond someone who simply has an engineering or architectural degree, is frequently the best way to go. Hiring an expert with the historical background to support your position will at least give the court an additional view on the way the guidelines should be interpreted and applied. To my way of thinking, that is the preferable approach but of course it assumes that you can find a preservationist who supports the proposed alterations suggested by the property owner.
This is an interesting case, but I fear very typical in the area of historic zoning. Because the statutes, ordinances, and regulations (frequently called guidelines, but if you read those guidelines carefully, you will see that the staff always really thinks of them as regulations) are often ambiguous, the court relies on the staff to understand their meaning. Typically, in the context of other zoning decisions subject to review, there are objective criteria which must be met and if they are met, the permit should issue. For example, in the case of a special exception/conditional use permit, if the applicant demonstrates compliance with the required conditions, the permit should issue. To the extent that a number of neighbors may appear and oppose, causing the zoning board for example to deny the application, there is a significant chance of reversal on appeal. Look at it from another perspective, from the point of view of the neighbors: in a variance case, if the developer does not demonstrate compliance with the requirements of the statute for variances, then if the variance is granted it is also subject to reversal on appeal. In both of those instances there are usually objective criteria by which to make the decision. Because the historic zoning regulations generally are much less objective, it increases the difficulty of successfully appealing a decision of the historic zoning commission, whether you are the applicant/landowner or a neighboring property owner.
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