Discriminatory Zoning Decisions: Islamic Mosques

I saw this interesting post a few days ago discussing this issue of discriminatory zoning decisions, which comes up from time to time and over the last few years has been especially troublesome in the context of Islamic Mosques. We have certainly had a very significant case here in Tennessee, but the same concerns and issues have come up all over the country. I have commented on these issues on several posts in this blog. Unfortunately, the issues seem to veer away from the relevant land use planning and zoning principles into concerns with which have no place in administrative proceedings.

Municipal Websites as Notice of Zoning Changes

There is a new proposed bill pending before the General Assembly which would allow municipalities to give notice of zoning changes by giving notice of the required public hearing on the municipal website. While this seems like a very reasonable idea, perhaps notice should be required both on the website and in a newspaper as well. Currently it is required either in the musical journal, whatever that might be, or in a newspaper of general circulation. Adding a website requirement will certainly be helpful in most instances, particularly in the larger cities. See House Bill 2226.

Metz v Metro Nasvhille

1st Case:  2017 WL 4677248
2nd Case: http://www.tncourts.gov/sites/default/files/metz.george.opn__0.pdf

In addition take a look at this Tennessean article.

These two cases involve a challenge by neighbors to a 96 unit affordable apartment complex proposed in Antioch. Once again, these cases reinforce the very common errors that are made by counsel for petitioners in a writ of certiorari case: failing to file within 60 days of the decision of the administrative body, and/or failing to have the petition verified by the petitioner(s).

A preliminary master development plan was approved on March 24, 2016 by the Metro Planning Commission, and the minutes were signed and entered on April 14, 2016. A rehearing was requested and heard on April 28, 2016; the Planning Commission denied the request and the minutes for the meeting were entered on May 12, 2016.

On May 16, the petitioners filed a common law writ of certiorari challenging the March 24, April 14, and May 12 decisions. Neither the original petition nor several amended petitions which were filed on behalf of the petitioners were verified by oath as required by Tennessee law.

On August 5, 2016, Metro Nashville filed a motion to dismiss which the trial court granted. The petitioners filed a motion to amend the petition on August 15, which was verified an otherwise comported with the procedural requirements of the common law writ of certiorari.

In the first case reviewed by the Tennessee Court of Appeals (citation above), the trial court’s decision was upheld. Once the 60 day time frame had elapsed, without the petition having been corrected, the trial court lost jurisdiction and could no longer grant a motion to amend; therefore, the case had to be dismissed for lack of compliance with the procedural requirements of the common law writ of certiorari

An additional argument in the first case was whether or not the suit papers could be considered as a declaratory judgment rather than as a common law writ of certiorari. The difficulty with this argument is that in reviewing a master development plan within a planned unit development or a specific plan, under the Metro Zoning Ordinance, the Planning Commission makes an administrative decision by applying existing law through a given set of facts. The planning commission does not create new law. The common law writ of certiorari applies to review an administrative decision which applies existing law to a development proposal; declaratory judgment action is available to review a proposed change in the law, such as a zoning change (from, let’s say, a residential zoning district to a commercial zoning district).

The court cited McFarland v. Pemberton, 2017 WL 4279199, at *22, 28-29 (Tenn. Sept.20, 2017), for this authority; this case is an extremely interesting case applying this doctrine and explaining the difference between the common law writ in a declaratory judgment action.

However, in addition to reviewing the McFarland case, counsel for petitioners in a land use planning matter might consider suing both ways, that is, filing a petition for common law writ of certiorari, properly verified and filed within 60 days of the administrative decision, as well as filing a declaratory judgment action if there is any question that the case could be filed on my are not the other. By filing both types of cases, separately, the attorney hopefully avoids these difficulties.

But it cannot be emphasized too much, that the petition for common law writ of certiorari must be verified by the petitioner, that is the petitioner must swear that the facts alleged in the petition are true to the best of the petitioner’s knowledge information and belief. Furthermore, the petition must be filed within 60 days of the decision of the administrative body. In zoning cases, for the most part, the planning commission or the board of zoning appeals are the administrative bodies making decisions although in some instances, the local legislative body may make an administrative decision itself so that the common law writ of certiorari is applicable. There are other requirements related to the common law writ, but these are the two that are most often missed and lead to dismissals of cases which might otherwise have some merit.

A second lawsuit was filed on December 27, 2016 challenging the decision on April 28, 2016. As the Court of Appeals ruled several days ago in reviewing the trial court decision to dismiss the petition for writ of certiorari, once again because the lawsuit was not filed until well after 60 days had already expired, the lawsuit was filed too late, and the trial court lost jurisdiction. Therefore, the trial court properly dismissed the petition for writ of certiorari.

Finally, on October 13, 2016, the planning commission approved the final site plan, the minutes for which were entered on October 27. This decision was challenged by the same suit filed on December 27, 2016. Although it would appear that the filing of the common law writ was also beyond the 60 days (it looks to me like the petition was filed 61 days after the entry of the minutes on October 27), the court did not address that issue but looked at whether or not the approval of the final details of the development plan was the final judgment of the Planning Commission. It concluded that it was not; the Court of Appeals decision was that the March 24 decision concerning the preliminary master development plan was the final discretionary judgment of the Planning Commission and that the final details of the site plan, approved in October, was simply a ministerial decision from which an appeal could not be taken.

The Commission’s approval of the master development plan on March 24, 2016, created legally binding, enforceable restrictions within the Forrest View PUD, and thus, it constituted the Commission’s final judgment or order. As to the final site plan approval on October 13, the Developer was entitled to the Commission’s approval as long as the final site plan complied with the master development plan. In other words, the October 13 decision was not discretionary. Accordingly, the clock for challenging the Commission’s decision started to run on April 14, 2016, when the Commission entered the minutes for the March 24 decision. Petitioners filed their writ of certiorari on December 27, 2016, which fell outside the sixty-day deadline. As a consequence, the trial court did not have subject matter jurisdiction to review the decision. 

The court cites an interesting similar case in the area of subdivision approval, Save Rural Franklin v. Williamson Cty. Gov’t, 2016 WL 4523418, at *6 (Tenn. Ct. App. Aug. 26, 2016), which essentially holds that waiting until final approval of a subdivision plat is too late to initiate a challenge to the decision of the Planning Commission. Rather, in the subdivision context, the decision must be challenged from the preliminary plat approval.

This decision by the Court of Appeals seems eminently reasonable. If the challenge is to the basic layout and overall design of a development, it should occur at the time that the overall design is approved. Failing to appeal from that decision within 60 days bars further review. Once the final details are submitted to the planning commission in accord with the previously approved design, it should be too late to file an appeal concerning the overall design. However, I would note, that if there is a question as to whether or not the details are consistent with the overall design, there might be an avenue to appeal concerning whether the site plan is appropriate given the previous approvals. In this case however, the challenge was clearly to the overall design of the development and what was going to take place there. The minor details reflected on a final site plan were not really at issue.

In any event, the main lesson to take away from these two cases is that a common law writ of certiorari must be based upon a petition which has been verified by the petitioner, and filed within 60 days of the administrative decision which it challenges. If there’s a question, both a common law writ and a declaratory judgment action can be filed. If there’s any question about whether the lawsuit should be filed earlier or later, it is always best to file early. Certainly, if the lawsuit is filed too early and it is not appropriate at that time, the court can dismiss and a later case may be filed. Waiting too late to file the appeal has the effect of preventing any appeal at all.

Short Term Rental Properties: Proposed Statutory Protection

A Senate bill pending before the Tennessee General Assembly has recently been amended to specifically prevent a local governing body from prohibiting or limiting the use of property as a short-term rental. The amendment "supersedes any ordinance, resolution, regulation, rule, or other requirement of any type enacted, maintained, or enforced by a local governing body that is not expressly authorized by this chapter." This will have the effect of rendering any local ordinance or resolution which does not comply with the state act (assuming it is passed) ineffective. Following on the heels of the controversy surrounding the adoption of the new Metro ordinance relating to short-term rental properties, this would seem to be directed precisely at that new legislation.

The proposed amendment places limits on the regulatory authority of local governments, such as for example, allowing a maximum number of bedrooms so long as that number is equal to four or greater, and the number of persons may be restricted so long as that number is not less than two persons times the number of bedrooms plus for additional people.

There has been a good deal of speculation about a state statute either preempting this area of local zoning regulation, or restricting the manner in which such regulations could be adopted and enforced. This amendment as proposed certainly presents the other side of the issue – and it is the very difficulty which many members of the Metro Council worried about when considering the recently adopted bill here in Metro Nashville. Below is a link to the proposed amendment:

http://www.capitol.tn.gov/Bills/110/Bill/SB1086.pdf

HOA views Tank with disdain

I guess I missed this when it came up in October of last year. Evidently, an attorney who owns property in a prestigious area of Houston decided to buy a renovated World War II tank. He parked it on the street in front of his home. As you might imagine, the homeowners association was not too thrilled about having a tank parked on the street in front of the subdivision, and has asked that it be moved. The attorney does not seem inclined to move it, and since it weights approximately 30 tons, it might be difficult to tow. On the other hand, homeowners associations these days have quite a few potential remedies and it's hard to believe that storing a tank on or adjacent to your property fits within the typical covenants and/or restrictions.

Take a look at the tank here:

https://taskandpurpose.com/texas-man-buys-sherman-tank-parks-front-house-upsetting-hoa/

Recode Knoxville

The City of Knoxville is in the midst of a major rewrite of its zoning regulations. It's been over 50 years since the last major rewrite of its land-use laws, and one of the major goals is to make it simpler and easier to understand and enforce. Take a look at the website:

www.recodeknoxville.com

This process should be very interesting given the number of interesting new issues which continue to pop up including the short-term rental properties issue, religious land use issues, and recent sign decisions by the US Supreme Court.

Tiny Homes and the Religious Freedom Restoration Act

Two small items of some interest came across my desk in the last week or so. First, the International Code Council has voted to amend the International Residential Code (for one and two family dwellings) by adding Appendix Q which adds special provisions for so-called tiny homes. For the purposes of the amendment, a tiny home is less than 400 square feet, excluding lofts. Of course, the amendments to the IRC must be adopted by the local governments individually, and it may take several years before the new Appendix Q is adopted across the country. However, because neither the International Building Code nor the International Residential Code (in the absence of Appendix Q) directly address the issues presented by tiny homes, it is likely that most building code officials across the country will apply Appendix Q to tiny home construction, whether actually adopted by the locality or not.

Secondly, on a related note, the zoning case involving tiny homes on a religious property was argued in Davidson County Chancery Court yesterday. The issue is whether or not the Metro Board of Zoning Appeals appropriately granted an accommodation to the church allowing 22 tiny homes on property immediately adjacent to the church building itself. The accommodation was granted based primarily on the Tennessee Religious Freedom Restoration Act, Tenn. Code Ann. §4-1-407. I was one of the attorneys retained to represent the church, but setting aside the legal arguments for a moment, it will be very interesting to get a decision applying the statute. Most Tennessee land use lawyers have debated the applicability of the statute, especially since it is much more powerful than the federal statute. But to date, I don't know of any zoning cases which have been decided based on the terms of the statute. The court's opinion will help guide future applications of the statute in zoning and land use cases.

Brown v Metro Nashville Board of Zoning Appeals, 2018 WL 522419 (Tn Apps 2018)

This case is an interesting illustration of interpretation of zoning terms, originally construed by the Metro Zoning Administrator, upheld by the Metro Board of Zoning Appeals, and affirmed on appeal to both the trial court and the Tennessee Court of Appeals.

As the Zoning Administrator and the Board construed and applied the Code to the proposed “flex loan” business, the question to be resolved was which of the existing use classifications flex loans most resembled. The meaning of a zoning ordinance and its application to a particular circumstance are, in the first instance, questions for the local officials to decide; accordingly, courts give wide latitude to local officials who are responsible for implementing zoning ordinances, Whittemore v. Brentwood Planning Comm’n., 835 S.W.2d 11, 15-16 (Tenn. Ct. App. 1992). “There is a strong presumption of validity favoring the actions of a zoning agency when applying and interpreting its own ordinances, and a reviewing court will defer to a zoning board’s interpretation and application of its ordinance, unless such interpretation or application is capricious, arbitrary or discriminatory.” Harding Acad. v. Metro. Gov’t. of Nashville & Davidson Cty., 207 S.W.3d 279, 286 (Tenn. Ct. App. 2006).

The competing definitions here were a traditional bank vs. a cash advance type of institution. The zoning administrator determined that the “flex loan” concept was more of a cash advance type financial institution, rather than a traditional bank.

Given the tremendous discretion in these kinds of interpretations, it certainly not unusual that the trial and appellate courts both found the rationale and conclusions of the zoning administrator and the board of zoning appeals to be reasonable and not arbitrary or capricious.

Perhaps the more interesting question is why a cash advance institution should be treated differently from a zoning standpoint than a traditional bank. Why is there a separation requirement in the first place? This sounds more like an anticompetitive enactment than a zoning issue. For example, in what way is a traditional bank significantly different from a cash advance institution when looked at from the standpoint of the surrounding land uses? Certainly the functions inside the buildings may be somewhat different, but the impact on surrounding land uses would seem to be pretty much the same.

Of course, a challenge to the distinction in the legislative zoning scheme would be equally as difficult, and would most likely lead to exactly the same result. Our courts are very deferential when examining legislative distinctions, particularly in zoning ordinances, and the challenge the cash advance definition as being not dissimilar from a traditional bank is most likely going to lose in any event.

This is an interesting case, but illustrates that challenging these interpretations of definitions within the zoning code are very difficult to win.

Short-term rentals: Anderson v Metro Nashville

The Tennessee Court of Appeals recently decided the short-term rental property case involving challenges to the definitions of the ordinance, the 3%, and attorneys fees. As you may recall, the trial court had found the definitions void because of vagueness, concluded that there was no monopoly in the use of a 3% cap, and awarded attorneys fees.

The Court of Appeals concluded that the constitutional vagueness issues had been mooted by the adoption by Metro Nashville of a new ordinance with updated definitions, that while the 3% might be characterized as a monopoly, it was nevertheless serving a public purpose by balancing the concerns of neighborhood residential uses against an influx of short-term rental properties. Finally, since in view of the court’s rulings the plaintiffs have not prevailed, the court reversed the award of attorney’s fees.

Perhaps the most interesting part of the decision is the discussion concerning the 3% cap. The court’s conclusion that even though it may be somewhat monopolistic, to the extent that it is offset by a concern of the legislative body for the well-being of the residential neighborhoods, It survives scrutiny.

Short-term rentals in Metro Nashville

As you are likely aware, Metro Council finally passed the amendments to its Short Term Rental Properties provisions, by way of Ordinance 2017-608. It’s a complicated bill, and I won’t try to cover all the ins and outs, but the most important change is that short-term rental properties which are not owner-occupied are not permitted in most residential areas. Compare §3 with §4 of the ordinance.

This may generate some questions about the potential non-conforming use of some of the existing non-owner occupied short-term rental properties. There are a number of issues involved in answering those questions, including whether the amendatory ordinance is a zoning ordinance subject to the Tennessee Non-Conforming Property Act ( Tenn. Code Ann. §13-7-208), whether the short-term rental properties would be classified as residential or business use for purposes of the act (if the use of the land is deemed residential, then the act does not apply), and whether the fact that the licenses were issued for only one year at a time would preclude any kind of non-conforming rights.

I’m sure that the will be some litigation about this over the next several years. It may take a while since the act expressly allows for the renewal of permits properly issued and maintained until June 28, 2020. I might add that usually those kinds of amortization provisions within zoning regulations are invalid to the extent that the Tennessee Non-Conforming Property Act is applicable, but in view of the questions about its applicability to these types of uses, that’s another question the court would have to decide.