Dellinger v. Lincoln County, 2019 WL 3115211 (N.C. Ct. App. July 16, 2019) is an interesting conditional use permit case which involved a final hearing by the local legislative body. The difficulty was that one of the members of the local legislative body evidently came into the hearing with preconceived ideas about the benefits of the permit. North Carolina has a statute one point:
A member of any board exercising quasi-judicial functions ... shall not participate in or vote on any quasi-judicial matter in a manner that would violate affected persons’ constitutional rights to an impartial decision-maker. Impermissible violations of due process include, but are not limited to, a member having a fixed opinion prior to hearing the matter that is not susceptible to change, undisclosed ex parte communications, a close familial, business, or other associational relationship with an affected person, or a financial interest in the outcome of the matter.
N.C. Gen. Stat. § 160A-388(e)(2) (2017).
Governing bodies sitting in a quasi-judicial capacity are performing as judges and must be neutral, impartial, and base their decisions solely upon the evidence submitted.In quasi-judicial proceedings, no board or council member should appear to be an advocate for nor adopt an adversarial position to a party, bring in extraneous or incompetent evidence, or rely upon ex parte communications when making their decision. PHG Asheville, LLC v. City of Asheville, 822 S.E.2d 79, 85 (2018). Board members acting in a quasi-judicial capacity are held to a high standard: “[n]eutrality and the appearance of neutrality are equally critical in maintaining the integrity of our judicial and quasi-judicial processes.”
Dellinger v. Lincoln Cty., No. COA18-1080, 2019 WL 3115211, at *3 (N.C. Ct. App. July 16, 2019).
A party who asserts a board member is biased against them may move for recusal. The burden is on the moving party to prove that, objectively, the grounds for disqualification exist.
There is a “presumption of honesty and integrity in those serving as adjudicators on a quasi-judicial tribunal,” but that presumption does not preclude a showing of demonstrated bias, mandating recusal.
Bias has been defined as a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction. Bias can refer to preconceptions about facts, policy or law; a person, group or object; or a personal interest in the outcome of some determination. However, in order to prove bias, it must be shown that the decision-maker has made some sort of commitment, due to bias, to decide the case in a particular way.
During the initial application several years back and the later appeal, perhaps as recently as two years ago I assisted in opposing the solar farm. I contributed financially. I expressed my opinion to others and had discussions with both those in favor and those opposed to the matter. All of these actions took place while I was a private citizen.
Petitioners clearly demonstrated Permenter’s bias based upon his actively opposing this specific conditional use application and appeal in the past, committing money to the cause of preventing them from obtaining the conditional use permit, and openly communicating his opposition to others. Permenter’s bias is not based upon his general discussion of or attitude toward solar farms or conditional use permits, but his position, contributions, and activities involving the grant or denial of this conditional use permit for Petitioner’s proposed solar farm. Permenter’s activities and positions proved he had a “commitment” to “decide the case in a particular way” or had a “financial interest in the outcome of the matter,” mandating recusal.
During the 5 June 2017 Board meeting and while sitting on the Board hearing the matter, Permenter advocated and presented ten pages worth of his “condensed evidence” in an attempt to rebut Petitioners’ prima facie case. This submission was made after another commissioner had already made a motion to deny the conditional use permit and had read the proposed order on the record. The “condensed evidence” advocated and presented by Permenter was biased, one-sided, and incomplete
As a result, the Court of Appeals reversed the decision of the lower court and ordered the issuance of the conditional use permit.
In most areas in Tennessee, conditional use permits are heard only by the Board of Zoning appeals. As a result, there is generally little chance of this same kind of overreaching by legislative bodies in the context of a conditional use permit. However, many zoning regulations provide for at least some hearing on a planned unit development before the local legislative body. These hearings are generally considered to be administrative in nature, similar to the conditional use permit application in this North Carolina case. As a result, the types of conduct outlined above which do not conform to due process requirements, can occur in Tennessee in the context of a planned unit development.
It is important to recognize that in an administrative proceeding such as a planned unit development members of the local legislative body are acting as judges, not legislators. Those members must be much more circumspect in their actions and words.
When dealing with a legislative matter, a preconceived idea about the impact of a particular zoning issue is not disqualifying. Many times, legislators are elected for their particular position on important issues. But in the context of a planned unit development, such preconceived biases are illegal and unconstitutional. The members of a local legislative body must understand the difference.
Showing posts with label due process. Show all posts
Showing posts with label due process. Show all posts
Friday, September 27, 2019
Wednesday, November 7, 2018
Cunningham v Bedford County -- Procedural Due Process
We have been reviewing the Cunningham v Bedford County case (copy found here) over the last several installments of this little zoning blog. We will continue today with a look at procedural due process.
The plaintiff also alleged a violation of procedural due process under both the US and Tennessee constitutions. The difficulty with this type of a claim is that there must be some constitutionally protected property interest that requires some degree of notice and opportunity to be heard. That property interest must be more than a unilateral expectation or an abstract need or desire, it must be a legitimate claim of entitlement created and defined by existing rules or understandings that come from some independent source such as Tennessee state law. The Court of Appeals concluded that here the plaintiff simply failed to demonstrate that he was entitled to have a zoning change and it was not therefore deprived of any procedural due process. He had no legitimate claim of entitlement to what is a discretionary decision by the local legislative body.
Once again, to a perhaps lesser extent in this instance, the decision turns on whether or not there was a rational basis for the failure to rezone the property. Having concluded that there was a rational basis for declining to change the zoning, there could not possibly be any claim of entitlement and as a result the procedural due process argument was doomed to failure.
I would go further and say that the procedural due process argument is somewhat difficult in the context of a zoning change. Perhaps if the zoning had been commercial and the County changed it to residential to the detriment of the owner, a procedural to process argument might have been more tenable. Under these circumstances though, it may be just too far a stretch. However, adding procedural and substantive due process claims to any case such as this is always worth considering and usually worth trying. Remember, that the local legislative body had cut off the plaintiff’s presentation of one of the hearings, and there were some allegations that at least the trial court found persuasive because of conflicts of interest by some members of the County commission.
Our next installment of this review of the Cunningham case will take a quick look at the alleged violations of substantive due process.
The plaintiff also alleged a violation of procedural due process under both the US and Tennessee constitutions. The difficulty with this type of a claim is that there must be some constitutionally protected property interest that requires some degree of notice and opportunity to be heard. That property interest must be more than a unilateral expectation or an abstract need or desire, it must be a legitimate claim of entitlement created and defined by existing rules or understandings that come from some independent source such as Tennessee state law. The Court of Appeals concluded that here the plaintiff simply failed to demonstrate that he was entitled to have a zoning change and it was not therefore deprived of any procedural due process. He had no legitimate claim of entitlement to what is a discretionary decision by the local legislative body.
Once again, to a perhaps lesser extent in this instance, the decision turns on whether or not there was a rational basis for the failure to rezone the property. Having concluded that there was a rational basis for declining to change the zoning, there could not possibly be any claim of entitlement and as a result the procedural due process argument was doomed to failure.
I would go further and say that the procedural due process argument is somewhat difficult in the context of a zoning change. Perhaps if the zoning had been commercial and the County changed it to residential to the detriment of the owner, a procedural to process argument might have been more tenable. Under these circumstances though, it may be just too far a stretch. However, adding procedural and substantive due process claims to any case such as this is always worth considering and usually worth trying. Remember, that the local legislative body had cut off the plaintiff’s presentation of one of the hearings, and there were some allegations that at least the trial court found persuasive because of conflicts of interest by some members of the County commission.
Our next installment of this review of the Cunningham case will take a quick look at the alleged violations of substantive due process.
Thursday, November 1, 2018
Cunningham v Bedford County -- Justification for Zoning Changes
Returning to this recent and very interesting case concerning zoning changes (a copy of which can be found here), keep in mind that challenging any legislative enactment is a difficult task. The Court of Appeals in Cunningham, cited many of the leading cases in the state, including Fallin v Knox County Board of Commissioners, 656 S.W. 2d 338 (Tenn. 1983), for the proposition that local legislative bodies are given broad discretion in enacting or amending zoning ordinances.
McCallen v City of Memphis, 786 SW 2d 633, 640 (Tenn. 1990).
The applicant argued that the opposition of nearby residents did not provide a basis on which the commission could lawfully refuse to rezone his property. Frankly, I agree with this point. It is not for the nearby residents to show a basis for a decision. From my perspective it takes the testimony of an expert witness, usually a land planner, to discuss whether a particular zoning classification on a particular property is rationally related to a legitimate governmental objective. Certainly, the residence may, at a public hearing, expressed their opinions. But those opinions are not well-informed and although they may have a political impact, have little or no impact on a judge making a final decision about the sustainability of the decision of the local legislative body.
Unfortunately, the cases relied upon by the applicant here were not legislative cases but rather administrative cases with a different standard of proof. The court easily blew through those, basically finding that neither of those cases was apposite to the facts presented here.
Interestingly, from my perspective, the Court of Appeals, sites an old favorite case of mine, Day v City of Decherd, 1998 WL 684533 (Tenn. App. 1990). In that case, Judge Cantrell, speaking for the Court of Appeals, noted that “legislative classifications in a zoning law are valid of any possible reason can be conceived to justify them.” And in an interesting comment on our political system:
Indeed, the Day case is somewhat similar. The owner there asked for a zoning change from residential to commercial as well, and ultimately did not have the votes to have it pass. There is one distinctive difference however, in the Day case, an urban planner, advise the planning commission that he had reservations about zoning this particular property commercial given other plans for that area of the city. As a result, there was an expert witness, so to speak, who provided some slim but necessary insight into the land use planning process and a reason to deny the zoning request.
In the Cunningham case on the other hand, the opposite appears to be true. Lisa Keylon, an urban planner by training and education, testified that this land was prime for commercial use. She testified that she thought the property should be rezoned to commercial. Now of course, in the absence of testimony by the plaintiff, a court must assume that most zoning enactments are valid. However, I feel certain that the plaintiff in this case adduced some proof, from an urban planner or otherwise, about the invalidity of the ordinance. At that point it seems to me that the burden should shift to the local legislative body to produce its own proof. Further, it appears that the County planners themselves testified the other way, that is, that the zoning change should be granted. Again, the Court of Appeals decision does not comment about this important testimony. The court focused solely on the adjacent neighbor and his opposition. But from my perspective, the neighbors' testimony, standing alone, in the face of expert proof from the plaintiff (if there was any) would insufficient to win the case for the local government. And since the planners from the local government itself seem to agree with the plaintiff’s position, that makes the plaintiff’s case even stronger.
The Court of Appeals relied on the neighbor’s testimony at the public hearing as providing a rational basis. It’s not clear to me that that is entirely appropriate. I think that if the plaintiff presented an expert who concluded that the zoning change was appropriate and had a rational basis, and furthermore that the existing zoning which was residential, had no rational basis, then the local legislative body should have been required to change the zoning.
Bear in mind, it’s very possible to have two or more zoning classifications which meet the rational basis test. For example, in this case, perhaps this property, from an urban zoning standpoint, could reasonably be used for residential or commercial purpose. If that’s the case then the local legislative body has the choice of either one. But without knowing more, it is difficult to reach a final conclusion concerning this issue as it regards this particular set of facts. However, the rational basis with regard to a zoning change cannot simply be provided by a neighbor. Either, the plaintiff fails to present expert proof, in which case the presumption of validity controls and the local government wins. Or, alternatively, if the plaintiff presents expert proof tending to show that there is no rational basis for the current zoning and that commercial zoning would have a rational basis, then either the local government must present its own expert and the court makes a decision between the two experts, or if the local government presents no expert proof, then the plaintiff should prevail.
However, our courts here in Tennessee have been very reluctant to even go that far and this decision in Cunningham is certainly consistent with other decisions where expert proof has been presented by the plaintiff, none from the local government, and yet somehow the local government nonetheless prevails. See for example, Family Golf v Metro Nashville, 964 S.W. 2d 264 (Tenn. App. 1997) (perm. app. denied April 6, 1998).
The point here is to recognize the difficulty of challenging a zoning change. Very few of those challenges are successful.
One final note: The Court of Appeals analyzed the denial of the zoning request as one section of its analysis, and then in another section analyzed the claims associated with substantive due process. From my perspective, those two sections could easily be combined. The basic challenge to a zoning change is really pursuant to substantive due process. The “fairly debatable rational basis test” arises out of substantive due process. In fact, the “fairly debatable” rule was applied in the first US Supreme Court case, Euclid v Ambler Realty, 272 US 365 (1926) (“If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.”). Over the years, the analysis has perhaps become more sophisticated with differing standards for fundamental rights and suspect classifications, but the basic test was laid down in Euclid almost 100 years ago.
When the act of a local governmental body is legislative, judicial review is limited to whether any rational basis exists for the legislative action and, if the issue is fairly debatable, it must be permitted to stand as valid legislation.
McCallen v City of Memphis, 786 SW 2d 633, 640 (Tenn. 1990).
The applicant argued that the opposition of nearby residents did not provide a basis on which the commission could lawfully refuse to rezone his property. Frankly, I agree with this point. It is not for the nearby residents to show a basis for a decision. From my perspective it takes the testimony of an expert witness, usually a land planner, to discuss whether a particular zoning classification on a particular property is rationally related to a legitimate governmental objective. Certainly, the residence may, at a public hearing, expressed their opinions. But those opinions are not well-informed and although they may have a political impact, have little or no impact on a judge making a final decision about the sustainability of the decision of the local legislative body.
Unfortunately, the cases relied upon by the applicant here were not legislative cases but rather administrative cases with a different standard of proof. The court easily blew through those, basically finding that neither of those cases was apposite to the facts presented here.
Interestingly, from my perspective, the Court of Appeals, sites an old favorite case of mine, Day v City of Decherd, 1998 WL 684533 (Tenn. App. 1990). In that case, Judge Cantrell, speaking for the Court of Appeals, noted that “legislative classifications in a zoning law are valid of any possible reason can be conceived to justify them.” And in an interesting comment on our political system:
Legislators, however, do what legislators two: they listen to their constituents; they test the wind; they try to please as many people as possible, consistent with the Constitution and a good conscience. And they are not to be condemned for doing so. That is their job.
Indeed, the Day case is somewhat similar. The owner there asked for a zoning change from residential to commercial as well, and ultimately did not have the votes to have it pass. There is one distinctive difference however, in the Day case, an urban planner, advise the planning commission that he had reservations about zoning this particular property commercial given other plans for that area of the city. As a result, there was an expert witness, so to speak, who provided some slim but necessary insight into the land use planning process and a reason to deny the zoning request.
In the Cunningham case on the other hand, the opposite appears to be true. Lisa Keylon, an urban planner by training and education, testified that this land was prime for commercial use. She testified that she thought the property should be rezoned to commercial. Now of course, in the absence of testimony by the plaintiff, a court must assume that most zoning enactments are valid. However, I feel certain that the plaintiff in this case adduced some proof, from an urban planner or otherwise, about the invalidity of the ordinance. At that point it seems to me that the burden should shift to the local legislative body to produce its own proof. Further, it appears that the County planners themselves testified the other way, that is, that the zoning change should be granted. Again, the Court of Appeals decision does not comment about this important testimony. The court focused solely on the adjacent neighbor and his opposition. But from my perspective, the neighbors' testimony, standing alone, in the face of expert proof from the plaintiff (if there was any) would insufficient to win the case for the local government. And since the planners from the local government itself seem to agree with the plaintiff’s position, that makes the plaintiff’s case even stronger.
The Court of Appeals relied on the neighbor’s testimony at the public hearing as providing a rational basis. It’s not clear to me that that is entirely appropriate. I think that if the plaintiff presented an expert who concluded that the zoning change was appropriate and had a rational basis, and furthermore that the existing zoning which was residential, had no rational basis, then the local legislative body should have been required to change the zoning.
Bear in mind, it’s very possible to have two or more zoning classifications which meet the rational basis test. For example, in this case, perhaps this property, from an urban zoning standpoint, could reasonably be used for residential or commercial purpose. If that’s the case then the local legislative body has the choice of either one. But without knowing more, it is difficult to reach a final conclusion concerning this issue as it regards this particular set of facts. However, the rational basis with regard to a zoning change cannot simply be provided by a neighbor. Either, the plaintiff fails to present expert proof, in which case the presumption of validity controls and the local government wins. Or, alternatively, if the plaintiff presents expert proof tending to show that there is no rational basis for the current zoning and that commercial zoning would have a rational basis, then either the local government must present its own expert and the court makes a decision between the two experts, or if the local government presents no expert proof, then the plaintiff should prevail.
However, our courts here in Tennessee have been very reluctant to even go that far and this decision in Cunningham is certainly consistent with other decisions where expert proof has been presented by the plaintiff, none from the local government, and yet somehow the local government nonetheless prevails. See for example, Family Golf v Metro Nashville, 964 S.W. 2d 264 (Tenn. App. 1997) (perm. app. denied April 6, 1998).
The point here is to recognize the difficulty of challenging a zoning change. Very few of those challenges are successful.
One final note: The Court of Appeals analyzed the denial of the zoning request as one section of its analysis, and then in another section analyzed the claims associated with substantive due process. From my perspective, those two sections could easily be combined. The basic challenge to a zoning change is really pursuant to substantive due process. The “fairly debatable rational basis test” arises out of substantive due process. In fact, the “fairly debatable” rule was applied in the first US Supreme Court case, Euclid v Ambler Realty, 272 US 365 (1926) (“If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.”). Over the years, the analysis has perhaps become more sophisticated with differing standards for fundamental rights and suspect classifications, but the basic test was laid down in Euclid almost 100 years ago.
Wednesday, October 31, 2018
Cunningham v Bedford County -- Intro
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.
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.
Friday, July 23, 2010
6th Circuit invalidates PUD changes
In an interesting new decision, the 6th Circuit Court of Appeals has invalidated a change in PUD regulations under Ohio law which were implemented without notice to the property owner. The lack of notice, a violation of procedural due process, prompted the court to invalidate the new regulations. Stores Wedgewood Ltd. Partnership I v. Township of Liberty, 2010 WL 2583410 (6th Cir. (Ohio) 6/28/2010)
The key to the case however, is not so much federal law as state law. "In Ohio, it is well-established that a landowner’s right to an existing zoning classification vests upon his submission of an application for a building or zoning certificate." In most states, including Tennessee, no rights vest until a permit issues and substantial construction has been completed. Thus, in a similar case in Tennessee, the local government would have time to change the zoning before substantial construction was completed, and there would be no rights vested.
The key to the case however, is not so much federal law as state law. "In Ohio, it is well-established that a landowner’s right to an existing zoning classification vests upon his submission of an application for a building or zoning certificate." In most states, including Tennessee, no rights vest until a permit issues and substantial construction has been completed. Thus, in a similar case in Tennessee, the local government would have time to change the zoning before substantial construction was completed, and there would be no rights vested.
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