Griffin v. Bd. of Zoning Appeals for Rutherford Cty., 2020 Tenn. App. Lexis 429

 This case involves a small business operating out of the owner’s home in Murfreesboro. After a zoning enforcement action was brought against the owner, he filed for a special exception to operate a major home-based business. The property is zoned residentially, is bordered by other single-family homes located in a cul-de-sac.

Approximately 20 neighbors appeared in opposition at the board of zoning appeals and based both on the neighbors’ testimony as well as the staff report, it appeared that a significant number of trucks and business vehicles operated from the residential property, that there was a considerable amount of noise both early in the morning and late evening, the number of employees and vehicles exceeded what was permitted by the specific conditions for the special exception, and the general incompatibility of this fairly significant business in a quiet residential neighborhood.

The zoning board denied the special exception for three reasons, first because of the general incompatibility of the neighborhood; its potential adverse effect on the neighborhood and finally because they were more employees and permitted by the specific conditions.

The trial court upheld the decision of the board of zoning appeals and the Court of Appeals affirmed.

This is a pretty simple case in that clearly the application did not comply with the specific conditions of the provisions in the ordinance relating to a major home-based business. However, I think it is important to distinguish between general conditions and specific conditions when dealing with a special exception. For the most part, general conditions are so general that it is difficult to apply them with any precision. That’s why at least one court in Tennessee has previously held that the general conditions are largely irrelevant in consideration of a special exception or conditional use permit case. In fact, the general conditions in the Rutherford County ordinance are pretty similar to virtually all other general conditions which I see herein the middle section of Tennessee and read as follows:

C. General Requirements

A special exception shall only be granted provided the Board makes specific findings that it:

1. Is so designed, located, and proposed to be operated so that the public health, safety and welfare will be protected;

2. Will not adversely affect other property in the area in which it is located;

3. Conforms to all applicable provisions of this ordinance for the district in which it is to be located and is necessary for public convenience in that location and if applicable, meets the specific standards below.

4. Shall be located so as to be compatible with the surrounding area and provide safety to those using the facility.

In this instance, the intensity of this home-based business clearly is incompatible with residential uses. It would also have an adverse effect on the other property in the area. But while that is true in this instance, in many cases, those two requirements are so vague as to prove impossible to apply. In most of the special exception cases I’ve tried over my many years in practice, those general conditions are simply not very helpful. Take a quick example. Suppose you have an unusual activity such as a landfill or a rock quarry. Are those ever compatible the surrounding area and will they always adversely affect other properties? Nevertheless, in a special exception case, the local legislative body has indicated that those types of uses can be in certain zoning districts subject to meeting the requirements associated with that special exception. To use general conditions that are so vague as to defy specific application simply begs for the zoning board to make decisions based not on specific requirements but on things that may have no relevance to the land use application.

On the other hand, the next section of the Rutherford County zoning ordinance provided a specific limit on the number of employees and on the number of business vehicles. The applicant was already in operation and had too many employees and too many vehicles. The application therefore did not comply and while it is certainly easy and seems reasonable to point to the fact that the general conditions appear also to be violated, it seems to me far better to emphasize the violation of the specific conditions contained within the ordinance.

Venture Holdings LLC v Metro Board of Zoning Appeals

Venture Holdings LLC v Metro Board of Zoning Appeals, 2019 WL 1897596, is a somewhat interesting conditional use permit case. As I have frequently mentioned, generally speaking, the applicant for the conditional use permit generally has the upper hand. The applicant must show that it meets the requirements for the particular conditional use it is applying for, and typically what happens is that the neighbors show up in opposition, but not very well organized and not prepared to address the particular requirements of the zoning ordinance.

This case is somewhat the antithesis of the general rule. In this case, one of my partners, Shawn Henry, had been retained to represent the neighbors and he had hired the services of a young urban planner to help oppose the application. Ultimately, the difficulty for the applicant was not the opposing claims of the neighbors so much as the failure of the applicant to satisfy the board and the courts that the impact on the surrounding land uses would not be substantial. A number of the surrounding manufacturing uses were somewhat sensitive to air-quality issues, and ultimately the board ruled against the application based on the sensitivity of the surrounding areas and the courts essentially upheld that determination.

Wright v Shelbyville BZA (II)

Yesterday, the Tennessee Court of Appeals released its opinion in Wright v Shelbyville Board of Zoning Appeals, the second time this case has been before the appellate court. The saga continues.

In the first iteration, the city had adopted a new zoning district (I-3) and all proposed quarries were to be located in that district. Unfortunately, wouldn’t you just know that the Wright property was located in an I-2 zoning district. The Wrights challenged the adoption of the new I-3 district and prevailed in the first case. The Court of Appeals found that the new zoning had not been adopted properly.

After the decision of the Court of Appeals, the Wrights requested that their application be considered under the existing (I-2) zoning. The city denied this request, and the Wrights appealed that decision to the Board of Zoning appeals which affirmed the denial. The city’s position evidently was that the ruling in the original trial court was res judicata, because the Wrights had failed to demonstrate that there was a vested right to have the original application considered under the original zoning rather than the I-3 zoning. This decision was affirmed by the trial court in the second case, although the court added that to the extent that the doctrine of res judicata was not available, the decision of the board of zoning appeals prohibiting consideration of the original application would otherwise be arbitrary and capricious.

The Tennessee Court of Appeals was certainly not impressed with the res judicata argument. The court began by saying that the law of vested rights has no relevance to the appeal. If the original argument in the first case was that the application was submitted before the I-3 was adopted, it doesn’t make any difference because the I-3 zoning was declared void in any event. There’s no vested rights argument to be made at this point because the zoning which purportedly took effect in fact never did.

The court summarized the law of vested rights:

The concept of a vested right in a zoning, which has long been recognized in Tennessee, allows property owners, who have acquired the requisite ‘vested’ interest under an existing zone, to use and develop the property pursuant to said zone even if a subsequent zoning ordinance is enacted.” Westchester Co., LLC v. Metro. Gov’t of Nashville and Davidson County, 2005 WL 3487804, at *3 (Tenn. Ct. App. December 20, 2005). Rights under an existing ordinance do not vest until substantial construction or substantial liabilities are incurred relating directly to construction. State of Tennessee, ex rel. SCA Chemical Waste Services v. Konigsberg, 636 S.W.2d 430, 437 (Tenn. 1982). In summary, a landowner who asserts a vested right to develop under a prior zoning ordinance must demonstrate good faith reliance on final prior government approval coupled with substantial expenditures or liabilities incurred that relate directly to construction.

But the court emphasized that this doctrine is not applicable under the circumstances here. The challenged law was found to be void and therefore the doctrine of vested rights was simply not necessary to protect the interests of the plaintiffs.

The Wrights were entitled to have their application considered under the only zoning in place at the time of their application. There was no “prior” zoning, no subsequent (2004) amendment, and no need for the Wrights to assert the vested rights theory. The Wrights’ property remained zoned I-2, a category that allowed quarries as a conditional use.

As a result, the Court of Appeals reversed the conclusion of the trial court concerning that issue. However, with regard to the trial court’s alternative finding, that the board of zoning appeals did act arbitrarily and capriciously, the court upheld that decision. In this part of the case, evidently the city argued that the original application was not still pending. The court thought otherwise.

The application was originally submitted in 2004, but when the zoning change took place, the plaintiff simply asked that the application be removed from the agenda and specifically asked that the application remain pending. There was no time limit in the zoning ordinance within which such applications had to be heard. The city never notified the plaintiff that they had to proceed on the application. And the delay was occasioned by the appeal which was successful in striking down the original zoning change. The plaintiffs asked on numerous times to have the application considered on its merits but were denied.

Finally, the zoning board also argued that because the plaintiff updated their application in 2010 that this operated to invalidate the original application. The court concluded that updating the application after a significant delay was perfectly reasonable given the circumstances in this case.

The court addressed two final issues, the remedy and attorneys fees. With regard to the issue of attorneys fees, the Court of Appeals remanded the case for consideration by the trial court. Since below the plaintiffs had been unsuccessful, but that issue has now been reversed, the Court of Appeals indicated that attorneys fees would be appropriate.

With regard to the issue of remedy, the concern was whether to remand to the board of zoning appeals or simply have the court order that the permit be issued. Ultimately, the court felt that under the common law writ of certiorari the most appropriate remedy was to remand.

The court however did go into a discussion of the differences between conditional use permits and variances. To my knowledge, this is the first time I’ve seen this in a case here in Tennessee. I think the objective was to make sure that the zoning board understood that their discretion was not limitless, and to suggest that they needed to tread carefully in considering whether to deny this permit.

Here’s the courts language which I think is instructive generally on the issue of special exceptions and conditional use permits.

A special exception, unlike a variance, is not an exception to a zoning ordinance. Instead, it is a use that is expressly permitted. “Special exception” is clearly a misnomer. Since the use is specifically provided for in the ordinance as one to be permitted where the conditions legislatively prescribed are found, no exception to the ordinance is being made. The use permitted by approval of the board of adjustment, the legislative body, the planning board, or the “zoning administrator,” as the case may be, contingent on meeting the standards and conditions set forth in the ordinance, is more correctly termed a “conditional use.” This is, in fact, the term which is used in some statutes.
3 Rathkopf’s THE LAW OF ZONING AND PLANNING § 61:9 (4th ed.) (emphasis added). 

A conditional use or special exception allows a landowner to put his property to a use which the ordinance expressly permits. It requires only a finding that the conditions stated in the ordinance have been met. “The inclusion of the particular use in the ordinance as one that is permitted under certain conditions, is equivalent to a legislative finding that the prescribed use is one which is in harmony with the other uses permitted in the district. Id. Where the legislative body has authorized a use by special exception or conditional use, courts will presume that such use serves the public interest when located in the district where it is authorized. Classification of a use as one that is permitted as a special exception constitutes a legislative finding that the use accords with the general zoning plan, is in harmony with, or will not adversely affect, the surrounding neighborhood, and meets a public need. 

Tennessee law follows these generally applicable principles. In fact, state statutes recognize the difference between a variance and a use permitted under certain conditions. Tennessee Code Annotated § 13-7-207 sets out the powers of boards of zoning appeals. Subsection (3) authorizes such boards to grant a variance from strict application of zoning regulations where exceptional difficulties to, or undue hardship upon, the property owner would otherwise result. On the other hand, subsection (2) authorizes a board of zoning appeals to “[h]ear and decide, in accordance with the provisions of any such ordinance, requests for special exceptions.” (Citations omitted).

Although the facts in this case are somewhat obscure, the opinion by the Court of Appeals is very instructive. Not only does it give a thumbnail sketch of the doctrine of vested rights, but for the first time in the state of Tennessee, we have an appellate court discussing the distinctions between variances and conditional use permits. It’s a very useful opinion and will no doubt figure prominently as land use planning cases continue to be decided here in Tennessee.