Manchester Hotel v City of Manchester (Tenn. App. November 30, 2020)

 In another case involving the complexities of the common law writ of certiorari, an appeal was taken from a decision of the municipal board of zoning appeals granting a variance. At the board hearing, the codes director checked the box indicating that the variance had been approved, but without any signature. At the next meeting, on October 15, 2018, the board approved the minutes from the previous month.

Two companies that opposed the variance filed a petition for writ of certiorari on November 16, 2018 and an amended petition with a sworn verification on December 5, 2018 (presumably the original petition lacked a verified signature and so was deficient in that regard). The defendants filed a motion to dismiss for lack of subject matter jurisdiction arguing that the checked box was a sufficient written confirmation of the action of the zoning board such that the appeal should have been taken within 60 days of the original meeting at which the decision was made (September 17, 2018). Of course, Tenn. Code. Ann. § 27-9-102 requires that the appeal be filed within 60 days of the decision.

The question presented here is whether the decision was appropriately memorialized by the checked box, or by the minutes adopted on October 15. If the former, then more than 60 days had gone by since the box was checked; if the latter, the appeal was timely filed.

The trial court granted the motion to dismiss but the Tennessee Court of Appeals reversed concluding that the checked box was insufficient to begin the 60 day statute of limitations. 

The defendants relied on Advanced Sales v Wilson County, 1999 WL 336305 (Tenn. App., May 28, 1999) as being very similar factually. This is a case decided by my good friend Judge Ben Cantrell, and even though I have only the highest respect for the judge and most of his decisions while on the bench, this is one that I’ve never been very comfortable with. In that case, the petition submitted to the zoning board itself had a section specifically set aside to show what action was taken by the board. In that case, the board secretary circled the entry “Relief Denied” and then signed the form. The plaintiffs argued that the signature of the board secretary in Advanced Sales clearly distinguish the facts in that case from the case under review. There was no signature of anyone on the form only a checked box.

The plaintiffs argued in turn that the most similar case was McMurray Drive Area Homeowners Association versus Metro Nashville, 2006 WL 1026428 (Tenn. App. April 18, 2006), where an administrative assistant took notes during the course of the meeting and recorded the motions, votes and decisions, but again without any signature. In the McMurray Drive case, the Court of Appeals distinguished those notes from the actual minutes approved by the Planning Commission which were not only signed by both the Chair and the Secretary of the commission, but also indicated the resolution number and the specific conditions of the approval. Although the trial court had granted the motion to dismiss, ruling that the administrative assistant’s notes were sufficient, the Court of Appeals reversed and remanded.

And so too did the Court of Appeals in this case. Without a signature, or perhaps without some other indication of authenticity, a simple checked box is insufficient to treat as a final entry. This is perhaps particularly true when a month later, the official minutes were adopted by the Board of Zoning Appeals.

Although I have said it many, many times now, it bears repeating once again: if you are appealing an administrative decision such as the zoning board decision in this case, the petition must be verified and it is always best to file within 60 days of the date of the hearing where the decision was announced. In this case, the original petition was filed on the 60th day after the original hearing, but unfortunately, the attorneys evidently had not remembered to verify the allegations of the petition. Fortunately, because the minutes were not approved until the next meeting, they had additional time to obtain a verified signature and to file the amended petition.

Finally, let me make one other note: why is it important that a verified petition be filed? The short and simple answer to that is that from a policy standpoint it is not important. The common law writ of certiorari is an antiquated form of pleading which should be retired, at least in the context of land use planning law cases. But many cities oppose going to a different form of an appeal and a land-use planning case, because it would deprive the city of the opportunity to dismiss many cases where the technical pleading rules have not been met. I can’t emphasize too much how unfair this is: property owners get thrown out of court because legal counsel makes a mistake filing a pleading, either too late, or unverified, when the verification requirement simply is unnecessary. Most of the cases which were appealed from zoning boards, planning commissions, and municipal legislative bodies do not involve significant disputes as to the facts. Thus verification of those facts is unnecessary. Most land-use planning cases involve questions of how the law applies to those facts and requiring verification does not advance the decision-making process with regard to the interpretation of the law one iota.

In any event, if you represent a client interested in appealing a land-use decision, be certain that the petition for writ of certiorari is verified properly, and that is filed within 60 days of the decision of the administrative tribunal. The best procedure is to file within 60 days of the meeting where the decision was announced without waiting for minute entries or the entry of some kind of an order.

Keith v Maury County Board of Zoning Appeals

This case will take little by way of analysis. Once again, we have an appeal from a decision of a local Board of Zoning Appeals, styled a petition for writ of certiorari, but which is not verified, that is, sworn to by the petitioner.

The law is clear: in the absence of verification by the petitioner within 60 days of the decision of the local board or commission, the local courts have no jurisdiction to entertain the claim. Thus it was in this case.

I have often lamented this requirement feeling that it is totally unnecessary and should be deleted by the simple expedient of adopting a new state procedure for appealing land-use decisions. Many other states have done this. I attempted to introduce legislation a few years back to accomplish this result, but it seems that there are a number of large cities which have some success in dismissing a number of cases which are not verified. Thus, there was opposition to the idea of doing away with the requirement.

Obviously, if the verification requirement added something to the process, that would be one thing. But in these cases, almost all the facts are known to everyone. Rarely is there any dispute about the facts in cases of this type. The real question is whether the facts as stated allow for the issuance of a variance, conditional use permit, or other relief which may be provided by the local zoning ordinance. The verification requirement has no impact on that question, and legislation allowing for land-use appeals without the verification requirement should be adopted by the Tennessee General Assembly.

Having said that, the zoning board decision in this case was most likely correct. The applicants were attempting to engage in activities which were not permitted by the zoning ordinance at their property; the zoning administrator notified them of the violation and they attempted to appeal his decision unsuccessfully. Most likely, even if the court had heard the case, it would have ruled against them anyway.

Howell v Farris, Tenn App 2018

This very interesting case involves an appeal from a decision of the local legislative body in Bolivar denying building permits to the property owner. The denial of the building permits was based on the failure of the owner to get a contractors license as required by Tennessee law. The suit requested the issuance of a statutory or common law writ of certiorari,  and liquidated damages based allegedly on the delay caused by the city by refusing to issue to permits. At a later time, the complaint was amended to include a request for inverse condemnation by regulatory taking.

The Court of Appeals initially considered whether the appropriate mechanism for appeal was the common law or statutory writ of certiorari. Based on innumerable cases here in Tennessee, the court easily concluded that since the local legislative body was acting as a board of zoning appeals at the time that it upheld the denial of the building permits, that the proper means of challenging that decision was pursuant to the common law writ of certiorari. Remember that the statutory writ of certiorari allows the trial court to conduct an entirely new hearing, including the admission of new evidence is the parties so desire whereas the common law writ only allows the trial court to review the record of the proceedings below to determine if the administrative body acted arbitrarily or capriciously.

The Court of Appeals, citing Judge Ben Cantrell's well-known and definitive article (Review of Administrative Decisions by Writ of Certiorari in Tennessee, 4 Memphis State University Law Review 19, 28 (1973)), held that the statutory writ was only available when (1) the order of the administrative body has no specific provision for judicial review; (2) the function performed by the lower tribunal is essentially judicial in nature; and (3) the order for which review is sought finally determines the rights of the petitioner.

The difficulty with this framework is the use of the term "judicial." Who's to say that a board of zoning appeals acts any less "judicially" then the historic zoning commission?

Judge Cantrell offers some insight into that question. "Apparently the court will sanction the granting of review by the statutory writ with its trial de novo only where the administrative tribunal is acting as to the petitioner much like a court would; namely, the individual petitioner has something like a private property right (e.g., a license, a permit, an office) which by its order, the administrative body may take away." Once again, think of it in the context of a zoning board: most of the time, the zoning board is determining whether or not to grant some specific type of relief to an applicant, a variance, or a special right to use property such as by a special exception or conditional use permit. If the board denies the application for the variance or conditional use permit, the applicant has not lost any species of right – the applicant never had the right to use his/her property for that purpose in the first place. Thus, arguably, nothing has been lost.

In this case, the question was whether or not the applicant had satisfied the requirements for the building permit and the legislative body/board of zoning appeals determined that he had not because of his failure to comply with the Contractors Licensing Act.

The second issue was whether or not the case became moot when during the pendency of the litigation, the property owner finally was able to obtain the building permits. At stake worthy numerous other claims that the plaintiff had attempted to put before the court arising out of the denial of the permits. The Court of Appeals affirmed the decision of the trial court finding the whole matter moot by issuance of the permits. But it went further: "it has been consistently held that the common law writ of certiorari, which is appellate in nature, is incompatible with an original action, and the two cannot be brought together." In other words, all of the other claims, request for injunction, removal action, the takings case, were all inappropriately joined with the common law writ of certiorari and should have been dismissed by way of a motion to dismiss early on in the litigation. I will come back to this point just a second.

Finally, the court addressed specifically the regulatory taking claim. While the trial court concluded that the taking claim had to be dismissed, it was based on the fact that the Tennessee Criminal Court of Appeals had ruled that withholding the building permits because of a lack of compliance with the Contractors Licensing Act was appropriate, the Court of Appeals concluded that it should have been dismissed because it was not proper to join the regulatory taking case with a petition for the common law writ of certiorari.

Citing among others, Goodwin v Metro Board of Health, 656 S.W. 2d 383, 387 (Tenn. App. 1983), the Tennessee Court of Appeals held that since the plaintiff had requested the issuance of a common law writ of certiorari, a form of appellate review, his claims invoking the original jurisdiction of the Chancery Court, including his regulatory taking claim, could not be joined in the same proceeding. Therefore, the regulatory taking claim had to be dismissed.

Let me make two quick observations concerning the ability to join original action with a common law writ of certiorari. The Goodwin case and its progeny have been around as long as I practice law. It has never made any sense to me. What is there about joining an original cause of action such as a regulatory takings case with a common law writ of certiorari which disqualifies the Chancery Court from hearing them both? Are we saying that the Chancellor's are not equipped to handle a multiplicity of actions? That doesn't make much sense. Certainly both our chancery court and circuit court judges are entirely capable of handling a case which is in Foreman appellant action, and a case which is informed and original action, in the same matter. Is there some difficulty, hearing can be held separately to make disposition easier. But that doesn't seem to be any reason why the Chancellor or Circuit Court judge or these issues all at once in the same proceeding.

However, since the Goodwin doctrine has been around for at least 35 years now, a far safer alternative for counsel is to simply file two cases. First, file the administrative review via the common law writ of certiorari, and then file a second case seeking whatever other types of original relief the client might be entitled to. Take this case for example. If the common law writ of certiorari had been filed first, and then immediately after that, another suit for regulatory taking, injunctive relief damages, on whatever other theories might be available, the Goodwin doctrine would be avoided and the client would be entitled to pursue whatever relief might be available.

The attorney for the petitioner (plaintiff) must remember that the petition for certiorari must be filed within 60 days after the entry of the decision by the Board of Zoning Appeals. That's why it is important to go ahead and file the petition for certiorari first, because ordinarily the statute is for the other types of tortious misconduct is longer.

Finally, it is worth noting apps, if the court dismisses claims properly certiorari case he may be some relief pursuant to the saving statute here in Tennessee. I don't know of any case law on that issue, but if there's nothing else available, that would probably be worth arguing to see what our appellate courts would conclude as to that issue.

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.

Can a Planning Commission Recommendation be appealed?

Last fall, Historic Sylvan Park Inc., sued Metro Nashville by way of a common law writ of certiorari, seeking to appeal a decision of the Metro Planning commission recommending against the extension of a historic zoning district in that neighborhood. The residents of Sylvan Park argued that the negative recommendation of the Planning Commission results in a requirement that a two thirds majority of the Metropolitan Council past the proposed zoning change pursuant to §18.02 of the Metropolitan Charter. The residents argued that because there’s no other mechanism by which to appeal the two thirds voting requirement, the Planning Commission decision was a final order subject to appeal by certiorari.

The Tennessee Court of Appeals did not agree. The court cited back to one of mild cases, Family Golf v Metro Nashville, 964 S.W. 2d 254, 259 (Tenn. App. 1997), which explained:

We view §18.02 as clear confirmation of the important advisory role of the Metropolitan Planning Commission plays in the control of the use of land Nashville. By requiring a super-majority of the Metropolitan Council to override the planning commission’s disapproval of a proposed zoning change, the Charter Commission intended to protect against random or ad hoc zoning and to ensure that the Metropolitan Council takes the carefully crafted general plan seriously.

964 S.W. 2d at 259. The important point here is this: a decision to extend the zoning district is a legislative decision made by the Metropolitan Council, with a recommendation from the Planning Commission. But that does not make the Planning Commission decision an administrative or judicial decision subject to review by the common law writ of certiorari; in fact, a zoning change application such as this can only be challenged by declaratory judgment. Fallin v Knox County, 656 SW 2d 338 (Tenn. 1983). The recommendation by the Planning Commission, both here in Nashville and across the state of Tennessee, is simply a part of the legislative process, not subject to review by means of the common law writ.

The Court of Appeals affirmed the decision of the trial court dismissing the case.

The Writ of Cert and "Something More"

I continue to struggle with the concept of when the 60 days for an appeal from a local government agency decision begins to run under the terms of the common law writ of certiorari here in Tennessee. “The case law . . .  certainly shows that something more than simply a vote taking place is required before a judgment or order will be considered as having been entered pursuant to [the certiorari statute].” Grigsby v City of Plainview, 194 S.W. 3d 408 (Tenn. App. 2005).

But what is that “something more” and what form must it take? Most attorneys would think in terms of some writing, but in these days of Internet connectivity and video on demand, could this “enduring evidence of the judicial act of rendition of judgment” (Carter Nashville Board of Zoning Appeals, 377 S.W.2d 914, 916 (Tenn. 1964)) be something much more substantial?

Many local government agencies now record their proceedings on video and post the video to the Internet for anyone to see. Could the process of posting a video recording of the local agency hearing be the “something more” required by the statute and Tennessee case law? A video recording is certainly not as ephemeral as the oral announcement (rendition) of the decision. Video recordings, whether stored on tape, disk, hard drive (local or in the cloud) are all enduring forms of evidence. Assuming that there is no doubt that the government itself posted the video to the Internet, the video recording is certainly better than many other forms of recordation.

For example, the well-known Advanced Sales v Wilson County Board of Zoning Appeals (1999 WL 336305, Tenn. App. May 28, 1999) case involved a situation where the 60 days was started when the zoning board secretary circled the words “Relief Denied” on a rudimentary form and signed on a line immediately below the circle. The form was not sent to anyone, including the applicant, it did not list who voted for and against the proposal, and it did not include any rationale for the denial of the application. Yet, the Court of Appeals concluded that this rudimentary form was sufficient to begin the 60 day appeals time.

Contrast that with a video recording of the hearing before the that same zoning board. Anyone watching the recording would know who made the motion, who seconded the motion, the reasons for the motion, the votes in favor the motion, the votes against the motion, and the outcome of the case. Certainly, when contrasting these two methods of kickstarting the appeals process, the video recording offers far more information for the party considering an appeal so as to make an informed decision as to whether an appeal is likely to be successful. In addition, it would seem far more difficult to fake or somehow falsify such a video recording; assuming that the viewer is familiar with the particular board or commission involved, he or she would presumably immediately know something was amiss if the wrong people showed up on the video recording.

Consider also that while our hypothetical video recording does not necessarily require any tangible format, neither does the rudimentary form in Advanced Sales. For example, a staff member the morning following the decision, could have arrived at his or her office, fired up the computer, and filled in a similar form electronically stored on the computer. The same information as was placed on the tangible paper form in Advanced Sales could be filled in on the electronic version on the computer, and then uploaded to the local government website without ever printing it out and without it ever taking tangible form. The rudimentary form would simply be a collection of electronic bits of data. Even the signature of the board secretary could be electronically affixed. Indeed, here in Nashville, the Metro Board of Zoning Appeals uses a facsimile stamp to manually affix the signatures of both the board chair and board secretary. This is specifically contemplated by the board’s rules. An electronic version is not much different.

In fact, a number of local government agencies now republish their agenda a day or two after the hearings, indicating briefly the results in the cases which were determined by the board and then upload those to the Internet. I would assume that these agenda revisions with the results of each case would satisfy the “something more” of Advanced Sales/Grigsby, and if that is the case, then it seems odd that a full recording of the proceedings of the local government agency would not fulfill the same function.

All of these ruminations bring us around to the same conclusion as was forced by the result in Advanced Sales: any appeal by way of the common law writ of certiorari from a local government decision should be filed within 60 days of the meeting where the decision was made. Simply put, if you wait beyond the 60 days from the date of the meeting where the decision was made, you run the risk of missing the all-important 60 day window of opportunity for the appeal. Filing the appeal outside of those 60 days, deprives the court of subject matter jurisdiction.  “Failure to file a writ within this period precludes review of such decisions by the courts.” Johnson v. Metropolitan Gov't for Nashville Davidson County, 54S.W.3d 772, 774 (Tenn. Ct. App.2001).

Finally, just to illustrate that this discussion is not purely hypothetical, Metro Nashville makes a video recording of Council meetings, zoning board meetings, historic zoning commission meetings, planning commission meetings, and various other local boards and commissions. Most of these video recordings are posted on YouTube, where Metro Nashville maintains its own channel, usually the following day. To take the case of the Metro Board of Zoning Appeals, the video would be posted on the Friday following the Thursday afternoon hearing; however, the written order from the zoning board is usually prepared within a few days after the hearing, usually the Monday following the Thursday hearing. If the video recording is sufficient to start the 60 day appeals time running, and the petitioner files 60 days after the written order is prepared the following week, the petition may be filed too late.

Again, when filing any appeal under the common law writ of certiorari, file within 60 days from the date of the hearing where the decision was announced. Failure to follow that rule of thumb can result in dismissal of the petition for lack of subject matter jurisdiction.

Cert petitions: First applications

A recent Tennessee Court of Appeals decision involving the common law writ of certiorari highlighted a case decided by the Tennessee Supreme Court over a year ago, but one which I had missed. The recent case, handed down within just the last day or two by the Tennessee Court of Appeals, Phillips v Northwest Correctional Center, stands for the proposition that if a petition for writ of certiorari is properly verified, the fact that it does not state that it is the first application for a common law writ is not necessarily fatal to the cause of action. The Court of Appeals relies on a case, Talley v Tennessee Board of Professional Responsibility, 358 S.W. 3d 185 (Tenn. 2011), which so holds.

This is certainly a reasonable way to pursue these cases. The Supreme Court in Talley holds that because the proper verification is a requirement of the Tennessee Constitution, that is not waivable, and that the court loses subject matter jurisdiction if that requirement is not met. On the other hand, the requirement that the petitioner state that it is the first application for a writ of certiorari is merely statutory, and that its absence from the petition is not necessarily fatal. The court indicates that the petition can be amended, and that the amendment relates back to the time of the original filing of the petition.

While the requirement of the verification for an appeal from a land use planning board or commission is still a needless complication, hopefully, the Talley case will usher in a more sensible and relaxed approach to the common law writ of certiorari. If the statutory requirement that the petitioner must state that it is the first application for the writ of certiorari, perhaps the other statutory requirements are also waivable and not fatal as a jurisdictional matter. “Tis a consummation devoutly to be wished.”

Depot Property v Town of Arlingotn

The Tennessee Court of Appeals recently released an interesting new opinion concerning zoning changes. In Depot Property LLC v Town of Arlington, the Court of Appeals addressed several interesting issues concerning negative recommendations of municipal planning commissions and the effect on a vote by the local legislative body. We’ll get to that in a moment.

Perhaps more importantly, the court somewhat astonishingly concludes that this case was properly brought as a common law writ of certiorari. The court was evidently persuaded by the fact that the local zoning ordinance required both the Planning Commission and the Board of Mayor and Aldermen to make specific findings that  (1) the zoning amendment is in agreement with the general plan for the area, (2) the legal purposes for which zoning exists are not contravened, (3) the zoning amendment will not have an adverse effect on adjoining property owners unless the adverse effects are outweighed by the overwhelming public good, and (4) the zoning amendment will not benefit some property owners materially to the detriment of the public as a whole. But these four “requirements,” if such they can be called, appear in virtually every zoning ordinance across the state of Tennessee. More importantly, these so-called requirements really do not bind the local legislative body in any way.

Take a look at them. The first is that the proposed zoning amendment must be consistent with the general plan. But state law does not require the local legislative body make decisions “in accordance with a comprehensive plan.” In fact, the Court of Appeals has already looked at a city charter provision was substantially similar language and decided that it did not apply in this way (Family Golf, cited in the opinion). The general plan only offers a point of view as to how the city will develop; it is simply not binding on the local legislative body and the Court reiterates that holding in this case. Since the Court of Appeals concludes that the local legislative body has the power to override the recommendation of the planning commission which is usually based on the general plan, this first of the four requirements really is irrelevant. The local legislative body does not need to make a decision which is in accord with the plan. This may be bad planning, it may be bad law (and certainly I have criticized it myself on many occasions), but it is the law of the state of Tennessee.

The second requirement, that the legal purposes for which zoning exists or not contravened, is so vague as to be entirely meaningless. Can anyone really explain what that means?

The adverse effects on adjoining property owners are the third requirement. Was there really any proof concerning that in this record? A thorough and careful reading of the opinion reveals none. I would suggest that what was really going on here is that under the standards of a declaratory judgment action, the local legislative body didn’t have to consider any of these things. It can do basically what it wants under these circumstances. These requirements are not requirements at all; the legislative body surely does take some of them into account in making the decision, but if it fails to find the presence of one or more of them, it may nevertheless pass the zoning change.

The fourth requirement is that the zoning amendment will not benefit some property owners to the detriment of the public as a whole. And what is that other than a legislative judgment to be made by the local legislative body? These are not administrative requirements such that an appeal must be made pursuant to the common law writ of certiorari. Rather, these are general guidelines which are considered by local legislative bodies as it deems appropriate.

Compare the language of most planned unit development zoning ordinances: they are much more detailed and much more specific about what must be done. The language at issue here is simply not sufficient to give rise to review by common law writ of certiorari. The court did not seem to consider this in any detail, and perhaps the parties both agreed that that was the way that the case should be taken up. Certainly, there is a strong argument that whenever the local legislative body is considering one or two parcels of land to rezone, or even if there are more parcels, but of a very small size, that the rezoning should be administratively considered rather than legislatively. However, the Supreme Court has not adopted that argument and in fact  pretty much rejected it in Fallin v Knox County. The conclusion here that these four extraordinarily general and ambiguous factors somehow convert what should be a declaratory judgment action into a common law writ of certiorari is simply incorrect. A comparison of the administrative regulations for any PUD, including the granddaddy case, McCallen v Shelby County, reveals the extraordinary difference between the level of specificity in PUD regulations versus general zoning amendment concerns. But PUDs almost always have an extraordinarily high level of regulation. Usually, in the cases I’ve been involved in, 15 to 25 pages are devoted exclusively to planned unit development. The four very short, general, and ambiguous factors found here, and found in most other zoning ordinances across the state, are simply insufficient to convert an appeal such as this one from a declaratory judgment action to a common law writ of certiorari

Setting aside the procedural issue, the court’s conclusion on the applicability of the override proviso certainly is correct. Tenn. Code Ann.  § 13-7-204 provides:

The zoning ordinance, including maps, may from time to time be amended; but no amendment shall become effective unless it is first submitted to and approved by the planning commission or, if disapproved receives the favorable vote of a majority of the entire membership of the chief legislative body.

In this case, the local legislative body was composed of seven members. To the members were asked to recuse themselves by the proponent of the amendment which they did. The remaining five members, split the vote with three voting in favor and two voting against. But that leaves the problem of Tenn. Code Ann. §13-7-204 quoted above. The last phrase of the statutory provision requires that if the proposed amendment is disapproved by the planning commission, that it received a favorable vote of a majority of the entire membership of the chief legislative body. Not a simple majority as would be needed if the planning commission recommended favorably but instead the favorable vote of the majority of the entire membership of the chief legislative body. Since the Arlington local legislative body was comprised of seven members, and since the planning commission recommended against the amendment, the proponent had to get four of the seven votes of the entire membership. He received only three votes, good enough for a simple majority of the members present and voting on the night in question, but one short of a majority of the entire membership of the local legislative body as required by the statute.

The author of Tenn. Code Ann. §13-7-204 was Alfred Bettman, the extremely influential zoning lawyer from Cincinnati. As it happens, Mr. Bettman contributed to a book which was published in 1935, just a year after the Tennessee General Assembly passed the statute which we are reviewing. In that book, entitledModel Planning Laws, Bettman provides his preferred forms for zoning and planning  legislation. Section 4 of the Immiscible Zoning Enabling Act, found on page 82, reads as follows:

The zoning ordinance, including the maps, may from time to time be amended; but no amendment shall become effective unless it shall have been proposed by or be first submitted to and approved by the planning commission of the municipality, or, if disapproved, shall receive a favorable vote of not less than two thirds of the entire membership of Council.

Notice the extreme similarity to the version adopted by the Tennessee General Assembly, except for the omission of the language concerning a two thirds majority. The Tennessee General Assembly took out the language requiring a two thirds majority and required simply a majority of the entire membership of the Council. Bettman specifically mentions the two thirds vote requirement on page 63, indicating that the supermajority vote is recommended for the same reasons as he previously discussed with regard to the location of public Works and uses. We now know that provision as the “mandatory referral” provision of the Tennessee zoning and planning statutes. Here’s what Bettman has to say about the two thirds majority requirement in that context:

This [model] form provides that when the report of the planning commission is adverse to a proposed location or use, a two-thirds vote of the Council or determining body is required to overrule the commission’s disapproval. The issue between a majority or a two thirds requirement is often stated to be whether the planning commission should be purely advisory or should have more than advisory powers. This is not an accurate way to state the issue. In the form here presented, the planning commission is not granted the power to decide finally on any question of location or extent of a public structure or use. That power resides in the legislative or administrative departments. The planning commission’s function is, in the last analysis, purely advisory; and this is not less true when a two thirds vote of the Council is necessary for decisions adverse to the advice of the commission. The two thirds requirement is simply a device for bringing about a more careful consideration of planning problems then these would be apt to receive it the ordinary majority control decision; and it could be stated that the experience of American cities has verified this, for the use of planning techniques in the recognition of planning principles have prevailed to a greater extent where this two thirds majority is required in the legislation and where is not. We are conceding of planning not as a matter of councilmanic way more fancy to be taken up or lay down as the clamor or fashion of the moment may favor, but as a basic step in the process of legislating about determining the allocation of the public and private uses of the land within the municipality.

One can certainly second-guess Bettman’s conclusion that a two-thirds majority would prevent in some way councilmanic whim or fancy from carrying the day. One only has to look at the Metro Nashville zoning changes, to understand that the two-thirds majority is no panacea. On the other hand it is clear that Bettman wanted somehow to push the ultimate decision maker to seriously consider the recommendations of the planning commission. The Tennessee general assembly did not believe that the two-thirds majority vote was lenient enough, but they did require a majority vote of the entire legislative body.

And, in a case such as the one here, where there is a negative recommendation by the planning commission, and the vote of a seven member legislative body is split 3 to 2 in favor, with two abstaining, the result must be, given Bettman’s point of view, that the zoning amendment does not pass. Not only was the court correct concerning the interpretation of the state statute, but there was a fundamental public policy which Bettman was attempting to acknowledge and enforce: careful consideration of any zoning amendment which the planning commission recommended against, and which also presumably meant that either the land use plan did not contemplate.

There is one final aspect of this case which seems at odds with the policy underlying state land use legislation. The proponent of the amendment argued that the plan was a “growth plan” within the meaning of Tenn. Code Ann. §6-58-107. First, although the court simply assumes that the General Plan of the municipality is the same as a growth plan, generally there are separate documents. In fact, usually, but growth plan is much less precise, and very vague and general. However, having assumed that the municipal General Plan was the growth plan, the court then turned to the language of the Smart Growth Statute, which mandates consistency with the growth plan, and concluded that there was no real inconsistency. That the fact that the area of the town which was the subject of the amendment did show in the plan that should be rezoned commercial did not specify the time frame within which that would happen.

Respectfully, it seems that if the plan itself does not indicate that the change should take place some time in the future, then that change is appropriate immediately.