A brief legislative history of variances in Tennessee

Several months ago, I mentioned that I would like to start a series of notes relating to the Tennessee Municipal Zoning Enabling Statutes,  Tenn. Code Ann. §13-7-201 et seq., and compared those provisions to the Standard State Zoning Enabling Act, drafted by a Blue Ribbon Committee under the auspices of the US Department of Commerce in the mid-20s. I haven’t gotten back to that until now but I thought we might begin with the difference between the two zoning enabling provisions which has always fascinated me (and I might add, almost no one else), the language relating to variances as a power of the Board of Zoning Appeals.

The Standard State Zoning Enabling Act has a specific provision relating to variances which provides in §7, that the zoning board has the power “to authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.” The Standard State Zoning Enabling Act was adopted in some form or another by a majority of the states across the country, and Tennessee adopted a modified version in 1935. As a result, many of the states across the country have a variance provision that reads similarly to the one quoted above.

However, the Tennessee version is quite different. It is much more particular about the special conditions which must be demonstrated in order to get a variance. Part of the reason for the greater specificity I submit has to do with the experience in New York City, where in the late 20s, zoning variances were being sold by the zoning board to overzealous developers. Part of the reason for greater specificity was to make it harder for the zoning board to grant a variance for what amounted to no good reason whatsoever. I discussed this difficulty in my book, Tennessee Zoning Boards: Practice and Procedure, third Addition 2012, GadsHill Press, at 247-252.

But the concern regarding overreaching by zoning boards still begs the question: why did Alfred Bettman draft the Tennessee version with the much more specific details? What prompted a more specific provision in this particular case (Tennessee)? The Tennessee version ( Tenn. Code Ann. §13-7-207 (3)) reads as follows:

The board of appeals has the power to: 

(3) Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property at the time of the enactment of the zoning regulation, or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulation enacted under this part and part 3 of this chapter would result in peculiar and exceptional practical difficulties to or exception or undue hardship upon the owner of such property, authorize, upon an appeal relating to the property, a variance from such strict application so as to relieve such difficulties or hardship; provided, that such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zone plan and zoning ordinance.

Well, as it turns out, there is a specific reason for the inclusion of this language. Alfred Bettman submitted his original drafts of the legislation by letter on November 6, 1934 to Mr. Gerald Gimre, who was at the time, a consultant for the State Planning Board of Tennessee, with offices in the Nashville Trust Building here in town. Bettman enclosed with that letter six different pieces of legislation including municipal planning, zoning, and subdivision regulations, regional zoning and subdivision regulations, and state and regional planning legislation.

I have copies of much of his correspondence and draft legislation relating to Tennessee during this time period. And while I can’t be certain, I have in these materials a proposed legislative enactment entitled “Municipal Zoning Act” which has a very short caption (the caption was significantly strengthened later as the time for filing with the Tennessee General Assembly approached), and I believe this to be the first draft of what was to become the Tennessee zoning enabling legislation for municipalities. Section 5 deals with the zoning board and reads as follows:

The chief legislative body may create a zoning Board of appeals, specifying the number and terms of members, mode of appointment and other details relating to the organization and procedure of such board and may authorize such board to administer the details of the application of the zoning ordinance and regulations in accordance with the general rules set forth in the zoning ordinance, including the power to hear and determine appeals from the grant or refusal of building permits and to permit exceptions to or variances from the zoning regulations in the classes of cases or situations and in accordance with the principles, conditions and procedures specified in the zoning ordinance.

As you can see, this leaves the details up to the local legislative body. And while I don’t know that this would have created any difficulties here in Tennessee, there was an attorney in Memphis who felt that the language should be stronger. The attorney was Edward B. Klewer, evidently practicing on his own at this point, but he was certainly an attorney who had a fine career. He appeared in front of the Tennessee Supreme Court on a number of occasions, including Forrester v City of Memphis, 159 Tenn. 16, 15 S.W. 2d 739 (Tenn. 1929), a case involving the jurisdiction and taxing abilities of the city of Memphis. He evidently worked with and represented the City of Memphis on a number of occasions. I have seen some references indicating that he was a Judge at some point although I have not been able to confirm that.

In any event, Mr. Klewer wrote to the State Planning Commission on December 20, 1934, making several suggestions. Of particular interest to us, are the suggestions relating to the municipal zoning board. He says:

Section 5 provides for the creation of a Board of Appeals. Under our Constitution and rulings of our Supreme Court I believe it would be advisable to have the delegation of the power of the board come directly from the legislature rather than from the chief legislative body. In this connection I rather favor an adaptation of the applicable provisions of the enabling act suggested by Messrs. Bassett & Williams of New York. The Memphis enabling act, Private Act of 1925, Chapter 428, authorizing the creation of a Board of Adjustment, follows to some extent the New York form, but, of course, since it was written improvements in text and phraseology have been made in like enabling acts and the wording of the Memphis act can be improved. However, the principal point is that, in my opinion, the jurisdiction and powers of the board should come directly from the legislature rather than from the legislative body of the city through a delegation of powers from the legislature to create a board and to define its powers and jurisdiction.

It is clear that Mr. Klewer believed that the powers of the board should come directly from the state legislature, and that they should be more specific in nature. In fact, as he mentions in the letter, the Memphis Private Act of 1925 does both these things. The specific language used in the Memphis Private Act

The Board of Adjustment shall have the following powers: 

3.   In passing upon appeals, where there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of such ordinance, to vary or modify the application of any of the regulations or provisions of such ordinance relating to the use, construction or alteration of buildings or structures or the use of land so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.

As you can see, this language is closer to the variance provision of the Standard State Zoning Enabling Act, although the use of the terms “practical difficulties” in addition to “unnecessary hardship” is actually a newer phraseology.  Notice also the last phrase, “… so that the spirit of the ordinance shall be observed, public safety and welfare secured and substantial justice done.” In the Bettman version which we will look at in one moment, instead of being affirmative guidelines, these become negative criteria for gauging the application of a variance.

It is also interesting to note that Mr. Klewer mentions in his letter that he is working on a proposed private act for zoning in Shelby County. Interestingly, that private act was adopted in 1935 as Chapter 625 of the Tennessee Private Acts of 1935. Section 6 of that Shelby County zoning enabling statute provides for variances, and it is nearly identical to the 1925 private act adopted to govern zoning in Memphis. That is to say, the Shelby County legislation passed by private act in 1935 is much less specific with regard to the factors which must be demonstrated in order to obtain a variance than the legislation written by Alfred Bettman and passed into law by the Tennessee General Assembly in that same year, 1935. Most likely, the sponsors of the Shelby County legislation felt that the variance language should be the same in Shelby County as in the City of Memphis. It was not until 1955, pursuant to Chapter 142 of the Tennessee Private Act of 1955 that the variance language was changed to bring it into conformity with the Tennessee Public Zoning Enabling Statutes. Notwithstanding the change in 1955, cases such as Reddoch v Smith, 214 Tenn. 213, 379 S.W. 2d 641 (1964), in which a zoning variance basically granting a change in the use regulations of the zoning district in which the property was located was upheld by the Tennessee Supreme Court, illustrate the dangers of the less specific language adopted in Memphis and Shelby County. In Reddoch, the 1955 amendment changing the variance standards in Memphis and Shelby County was not mentioned even though the change took place almost 10 years before the decision was handed down.

It took very little time to get a response from Bettman concerning Klewer’s suggestions. On December 27, 1934, Bettman sent a revised version of the Municipal Zoning Act to Mr. Gimre. In the letter, he quibbles with Klewer’s suggestion: “I do not quite see why a grant of power to the municipal council to define the powers of the board should be less constitutional [then having the powers of the board derived directly from the legislature]; but in order not to delay matters … I have accepted Mr. Klewer’s suggestion in this respect, and have revised this bill accordingly.

This time , we can be sure about what draft of the bill he was referring to, because it is immediately behind the letter and has a hand written entry on the upper right which says “Dec 27 encl.” This new draft has a much longer caption but more importantly for our purposes, §5 has been significantly expanded and now contains the Bettman variance language as follows:

The board of appeals shall have the following powers:

3. Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property at the time of the enactment of the zoning regulation, or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulation enacted under this act would result in peculiar and exceptional practical difficulties to or exceptional or undue hardship upon the owner of such property, to authorize, upon an appeal relating to said property, a variance from such strict application so as to relieve such difficulties or hardship, provided such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zoning plan and zoning ordinance.

As I have said many times, this language is most specific, and it makes it difficult to obtain a variance because the language is so specific and requires some exceptional physical feature of the property to justify granting relief. In my experience, it is quite difficult to find some exceptional physical feature of the property which can serve to justify issuance of a variance by the zoning board. In fact, in cases here in Tennessee where this language applies, it is very difficult for a zoning board which grants a variance to be upheld. Perhaps the leading case in Tennessee is McClurkan v Metro BZA, 565 SW 2d 495 (Tenn. App. 1977). The Tennessee Court of Appeals emphasizes in that case the language quoted above which requires some physical feature of the property to be of paramount concern in determining whether a variance should issue.

This specificity in the enabling legislation may not be a bad thing; unbridled discretion to grant variances certainly can have the impact of creating in effect spot zones and undermining the efficacy of the goals of the ordinance itself. In effect, that was the problem in New York City in the mid to late 1920s.

In any event, Mr. Klewer’s suggestion certainly caused the inclusion of the much more specific language for variances drafted by Alfred Bettman. The language was included in the legislation is adopted by the Tennessee General Assembly, Chapter 44 of the Tennessee Public Acts of 1935 and  remains in the Tennessee Municipal Zoning Enabling Statutes to this day. See Tenn. Code Ann. §13-7-207 (3).

I thought perhaps I could find out some additional information about Edward Klewer, but unfortunately he passed away shortly after his correspondence with the State Planning Department. He died on May 18, 1936 at age 49. In running a quick Internet search, I saw that his wife created a scholarship in his name at Rhodes College in Memphis but I have very little other information relating to him. I did find a photograph at this location on the net.  Take a look at page 7, lower left; the caption Indicates that Mr. Klewer is standing at the far right on the first row.