Lack of Findings by Planning Comm: Constitutional Violation!

In an interesting new case from Idaho, the Idaho Supreme Court concluded that the failure of the Zoning Commission (this involves a subdivision application, so this is a planning commission under Tennessee law) to make express findings of fact and conclusions of law sufficient to enable judicial review, was a violation of procedural due process of the neighbors who appealed the decision granting the subdivision approval. The case, Jasso v. Camas Ctny., 2011 WL 5299710 (Idaho 11/02/11), is an interesting illustration of a constitutional violation where the administrative tribunal failed to follow statutory requirements. By the Way, Tennessee has similar statutory requirements for planning commissions requiring findings of fact, although not for zoning boards.

This case suggests that if a neighbor files suit based at least in part on a failure of the administrative tribunal to make findings of fact and conclusions of law, that there might be a constitutional violation, and under Tennessee law, not only might you be able to obtain attorneys fees under the Tennessee Equal Access to Justice Act, TCA §29-37-101 et seq., but in addition, you might be able to sue under the Federal Civil Rights Attorneys Fees Act, 42 USC §1988.

Parking Trailers on Commercial Property

An issue which frequently comes up in codes enforcement cases involves the legality of restrictions on parking commercial vehicles, including tractor trailers, on property whether it be zoned residential or commercial. In a case decided last Monday, the Tennessee Court of Appeals concluded that a regulation of the Town of Smyrna precluded the use of tractor trailers as a means of storing furniture on-site at a local furniture store. Town of Smyrna v Bell, (Tenn App 2011).

The property owner evidently had been storing inventory on-site for his store in tractor trailers for many years, predating the local zoning regulations. The town however had a regulation which required:

In any commercial zone, tractor trucks, whether the cab alone or with a trailer attached, tractor trailers, including trailers and semi-trailers, whether empty or loaded, not attached to a truck or tractor truck, which are not being used for or engaging in normal loading or unloading purposes, or for activities directly associated with normal trucking operations, shall not be parked or stored on a lot unless they are located in a completely enclosed space, which enclosed space shall include a roof, or are located behind the front setback line created by the building closest to the street right-of-way and unless such tractor trucks or tractor trailers are located behind a completely opaque fence.

Interestingly, this regulation was not a part of the zoning regulations, but was instead found in the section of the local municipal code which regulated motor vehicles, traffic, and parking. Notwithstanding that, Mr. Bell contended that since he had been using tractor trailers for the storage activities many years prior to the adoption of the regulation, that the provisions of the Tennessee Non-Conforming Property Act, Tenn. Code Ann. § 13-7-208, applied and protected him from the enforcement of these provisions.

The trial court ruled in favor of the property owner, finding that the trailers were a necessary part of the business and protected under the Non-Conforming Property Act. On appeal, the Tennessee Court of Appeals reversed. The court first noted that not every regulation of activities on private property was a zoning regulation. The Tennessee Non-Conforming Property Act however only applies to zoning regulations and as a result, the property owner is only protected to the extent that the regulation at issue is a zoning regulation.

In the case of Cherokee Country Club v. City of Knoxville, 152 S.W.2d 466 (Tenn. 2004) the Tennessee Supreme Court acknowledged that a municipality’s police power enables it to enact regulations concerning the health, safety and welfare of the community without following the strict planning, notice, hearing and review requirements that must accompany its exercise of its zoning powers. It also recognized that under certain circumstances an enactment that is  ostensibly unrelated to zoning matters may constitute zoning by other means. The court  cautioned that “[a] municipality must not ‘evade the protections thrown about the citizen’s use of his property by the device of labeling a zoning act a mere exercise of police power.’” Cherokee Country Club v. City of Knoxville, 152 S.W.2d at 471-72.

In order to make the determination, the Supreme Court held that in order for the regulation to be deemed a zoning regulation subject to the protections of the Non-Conforming Property Act, the regulation must substantially interfere with the use of the land. This is a determination that turns largely on the facts of each case. In this case, the Tennessee Court of Appeals concluded that this regulation did not substantially interfere with the use of the property as a furniture store.

The court noted that there was no evidence that using tractor trailers as storage units was an inherent or necessary trade practice in the furniture industry, and although the owner testified that enforcement of this regulation would put him out of business, there was no evidence supporting that conclusion. On the other hand:

While the enforcement of the ordinance may affect to some degree the method through which Mr. Bell conducts his business, it is undisputed that the town of Smyrna has no objection to his continuing operation of a furniture store on his property. It simply wants him to comply with an ordinance that applies by its terms to all existing businesses in a commercial zone, and, the town is not expressly seeking the removal of the trailers per se. Mr. Bell can comply with the ordinance by moving the trailers behind the property setbacks and enclosing them within an opaque fence. In the alternative, he can remove them and store his excess furniture at some other location.

As a result, the Tennessee Court of Appeals reversed the decision of the trial court. The local regulation precluding the use of storage trailers on commercial property is enforceable, and the Tennessee Non-Conforming Property Act offers no shield from the enforcement of those code provisions.