Goodbye to Single-Family Zoning?

 Berkeley California made news within the last week or so and announcing that it is planning to phase out zoning districts which allow only single-family residences. It appears as though they would simply amend the zoning regulations to allow other types of housing in those districts, but the possibility of eliminating single-family residential zoning can seem pretty fantastical. See a local news item here.

Several other jurisdictions across the country have also analysis similar efforts. Minneapolis culminated a multiyear effort to accomplish the same objective in the last year or two. Take a look here.  Other cities are considering similar efforts.

It is interesting to consider these efforts in the context of Nashville and other Tennessee cities. While I certainly don't expect that Nashville or for that matter, any of the other large cities here in Tennessee would consider eliminating single-family residential zoning, viewed in a historical context, there is an interesting twist. When I started practicing law in Nashville in 1979, and I clerked while I was in law school for the Metro legal department in 1978, there was no single-family zoning in the city. The least intensive zoning districts for residential (as opposed to agricultural) purposes, R40, allow both single-family and two-family dwellings on lots which had to be 40,000 square feet or larger. In fact, all of the zoning, R20, R15, R10 and so forth, allowed duplexes. 

I asked one of the planners who worked at the Metro Planning Commission at the time, Bob Pasley, why it was that these zoning districts which in other cities would have been single-family only, also allowed duplex residences. Bob wasn't quite sure, but indicated that it was a historical anomaly that had simply carried through from the 1920s when zoning first started in Nashville.

Beginning in the early 80s, of movement towards what is now known as RS40 (and so on) began, so that duplexes could no longer be constructed in single-family residential areas. So, in an interesting way, the original zoning districts in Nashville did not permit single-family zoning but also allowed duplex residences; it wasn't until some 60 years after zoning began here, that the push for single-family only zoning districts began. Now the conversion is virtually complete. Most of the areas in town where you would envision single-family zoning have been changed to that type of designation.

It's generally agreed by most planners that single-family zoning contributes to urban sprawl, and of course, in the Berkeley instance, questions concerning racial inequality have added to the push to eliminate such zoning. Nevertheless, it will probably be a long time before we see it here in Tennessee in any of the large cities. But it is interesting that zoning here in Nashville started off by allowing duplex residences in all or virtually all residential zoning districts. 

More on Subdivisions: Hudson v Metro Planning Commission, 2020 WL 7255807 (Tenn. App. 2020)

Hudson is another important case in the area of subdivisions, although it may leave more questions than it answers. The basic question presented to the court was whether the planning commission could deny a subdivision application because it was not consistent with the “harmonious development” of the municipality? Tenn. Code. Ann. § 13-4-303(a).

The subdivision was for a development of 193 single-family homes on 65 acres of land in Davidson County. The Planning Commission rather reluctantly granted approval in the face of significant public opposition, but only after encouragement both from the staff and from the municipal attorney based on compliance with all of the applicable Subdivision Regulations. The trial court found this encouragement to be inappropriate and reversed, essentially concluding that “harmonious development” allowed the Planning Commission to make decisions beyond the scope of the technical requirements of the Subdivision Regulations. On appeal, the Court of Appeals upheld the trial court, but reversed on the “harmonious development” argument, concluding that the plain language of the statute wasn’t consistent with the trial court’s holding. The statute, by the way, authorizes adoption of subdivision regulations which “may provide the harmonious development of the municipality and its environs…” Thus, whatever the subdivision regulations provide is assumed to promote the harmonious development of the municipality. The Planning Commission has no authority to go beyond the requirements of those Subdivision Regulations. The subdivision regulations themselves are a significantly important part of the process of obtaining subdivision approval.

So far so good. Most land use planning lawyers felt that that was the appropriate interpretation of the statute. The court however went on, noting that the Metro Subdivision Regulations required compliance with the “adopted General Plan, including its constituent elements, and the Major Street Plan.” It concluded that:

the Planning Commission had the authority to determine whether the concept plan complied with the "adopted General Plan." Thus, the planning staff's description of the role of policy in the subdivision approval process was incomplete and led the commission members to discount potentially legitimate objections.

Frankly, most land use lawyers in Tennessee have always assumed that the General or Comprehensive Plan did have some role to play in subdivision consideration. This is true even though Tennessee is not a “plan as law” state, that is, in most of our jurisdictions, the plan is only advisory and basically has no legal significance. See for example Family Golf v Metro Nashville, 964 S.W. 2d 254 (Tenn. App. 1997) (permission to appeal denied April 6, 1998) (Planning Commission recommendation against a zoning change based on the General Plan is overridden by two thirds majority of Metro Council).

But the question is what role does the plan actually play in the context of subdivision consideration? First, most plans are pretty ambiguous, reflecting the inability to see very far into the future. As a result, mandatory provisions in planning documents are less frequent than found within zoning regulations or subdivision regulations. This immediately causes a problem, because with regard to small details which might be ambiguous Tennessee law has always been that ambiguity is construed in favor of the property owner. Edwards v Allen, 216 S.W. 3d 278 (Tenn. 2007). Thus, if the General Plan is ambiguous, the Planning Commission must interpreted favorably to the property owner and that would likely mean approval of the subdivision application.

Second, and perhaps much more significantly, suppose the plan directly conflicts with adopted law in the community. So for example, suppose the General Plan in one part of a local municipality envisions the property as single-family residential but the local legislative body passes a zoning regulation which permits multifamily residential uses in that same area. Recall of course that the General Plan is not law, is not passed by any legislative body (only by the Planning Commission which is not elected), and is a vision for future development not some type of binding regulation.

Back to my hypothetical: if my client applies to the Planning Commission for approval of a site plan for a multifamily residential development, can the Planning Commission deny the application based on the General Plan? Many states these days have enacted statutory provisions which make the General Plan binding, usually because it gets adopted by the local legislative body. In most jurisdictions here in Tennessee, that does not happen (there is authority for it in the planning enabling statutes, but it has not been used frequently). The planning commission adopts the General Plan and it certifies the plan to the local legislative body but that body does not in turn adopt it as law. If the Planning Commission can deny approval of a development plan based on the General Plan contrary to the zoning regulations adopted by the local legislative body, then it would seem that the ultimate authority is now in the hands of the Planning Commission. Surely this cannot be correct.

Clearly in such instances, the Planning Commission's authority to deny a development cannot be based on the general plan. The local zoning regulations take precedence and if there’s a conflict between those regulations and the General Plan, the General Plan must give way.

Unfortunately, there is no case law in Tennessee discussing this issue whatsoever and with the recent decision in the Hudson case, it will surely be coming up more and more often. 

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

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

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

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

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

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

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

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

CBS Outdoor

The recent decision by the Tennessee Court of Appeals in Metro Nashville v Metro Board of Zoning Appeals & CBS Outdoor, 2014 WL 4364852 (Tenn App Sept 3, 2014), presents a considerable difficulty for almost every party who appears before any board of zoning appeals in the state of Tennessee. The holding of the Court of Appeals is that the local government may, presumably without notice in any manner whatsoever to the applicant, appeal any decision of its Board of Zoning Appeals and challenge whether that decision was appropriate. This means that even though there may not be any opposition whatsoever appearing before the Board of Zoning Appeals, the applicant needs to ensure that there is a sufficient evidentiary basis for any decision of the Board which grants the relief sought. Just because no one appears in opposition does not mean that at some point a lawsuit won’t be filed by the local government itself challenging the decision of its own zoning board.

The decision in CBS Outdoor leaves a number of questions unanswered. Does the local government need to present some proof to the trial court concerning standing? Should the local government appear before the zoning board? Who makes the appearance? Assuming that the local government did not make an appearance before the zoning board, there would be no evidence of standing in the record, and assuming that the respondent denied the standing allegations in the petition for writ of certiorari, there would be no clear evidence of any harm to the local government without such proof. On the other hand, perhaps the Court of Appeals is signaling that the local government need not make any other showing than perhaps a reference to a local ordinance which it contends was not followed. Surely the ordinance itself would have to be introduced however before the trial court, and in the absence of a stipulation from respondent’s counsel, it’s not entirely clear how that takes place either. The trial court can take judicial notice of local zoning regulations upon notice (Rule 202 (b) of the Tennessee Rules of Evidence) but in a  certiorari proceeding  all the evidence should have been presented to the zoning board; allowing additional evidence, even the zoning regulations, arguably allows the court to consider factors which were not considered by the zoning board.

On the other hand, it has always seemed to me that local governments should have the ability to appeal under certain circumstances. The most obvious is where the local government owns a parcel property in the immediate vicinity of the proposal. In such a case, the local government is just like any other neighbor, and can appear before the zoning board opposing the application and appeal the decision on to a reviewing court. In a sense, the well-known City of Brentwood v Metro Board of Zoning Appeals, 149 S.W. 3d 49 (Tenn. App. 2004) represents this idea. Although Brentwood itself did not own property in the immediate vicinity, it was in that case an immediately adjacent neighbor, concerned about the construction of the sign which was at issue in that case.

Secondly, there are certainly times when local zoning boards make decisions which are so far beyond their ordinary activities that the decisions may need to be called into question. Two quick examples: first, where the zoning board grants a variance in the building code provisions. The zoning board has no authority over the building code, and should not be considering building code issues in its hearings. Secondly, if the zoning board violates some federally protected right or activity, litigation to protect those citizens whose rights are in issue may be necessary. For example, religious discrimination might be a basis for such an appeal.

But where the zoning board is exercising powers which are normally within its jurisdictional ken, such as considering variances, conditional use permits (special exceptions), or making determinations concerning non-conforming properties, it would seem unnecessary for the local government to have the right to sue its own zoning board and challenge its decision in a trial court. In fact, one wonders why we bother with zoning boards at all if the local government is free to appeal any decision they issue.  In the CBS Outdoor case, there are no special issues. Metro contends that the zoning board decided a non-conforming property case erroneously. The Metro board of zoning appeals probably hears something in the vicinity of 50 to 75 such cases each year. This kind of case is certainly not anything unusual. It does not seem therefore to afford a basis for an appeal by the local government of its own zoning board’s decision.

Which brings us back to the main issue here: how to best protect against such an appeal. Once more, the best protection is to make sure that the record contains sufficient evidence to justify the decision, and that the order or minute entry of the board reflects findings of fact and conclusions of law which are consistent with the board’s decision. Customarily, I file a fairly lengthy letter with the zoning board approximately one week before the hearing date, detailing why my client complies (or in the case of opposition, why the applicant does not comply) with the requirements for the application. Assuming that the zoning board rules in my favor, I usually request permission to draft the minute entry and/or order of the board which will closely follow my letter. Generally speaking, I have found that it is quite difficult for anyone appealing such decisions to reverse because the combination of the letter (with the evidence), and the order (with findings of fact and conclusions of law) is usually very persuasive to the trial court.

One final note. Given the recent decision by the Tennessee Supreme Court concerning the manner required for trial courts to grant summary judgment pursuant to Rule 56.04 of the Tennessee Rules of Civil Procedure, Smith v UHS of Lakeside, 2014 WL 3429204 (Tenn. S Ct July 15, 2014), it may be advisable to have the zoning board discuss the order or minute entry prior to adoption. I have for a long time suggested that the zoning board should not have to include a detailed motion in order to grant a particular application. Most of the requirements for relief before zoning board are quite detailed – take a look at the variance requirements under Tenn. Code Ann. § 13-7-207 (3) for example (and those are not all of the requirements) – and as a result any motion which attempts to cover each and every requirement is doomed to failure. Most lawyers or trial court could not do it. I know that I could not do it off the top of my head.

However, let me suggest that in the case of a variance, the motion made to grant a variance should include a reference to the exceptional physical feature of the property which the moving member of the board thinks is determinative. The exceptional physical feature of the property is the most important component of a variance, and if the moving member gives the staff or the lawyer representing the applicant that basic piece of information, it would seem to me that most courts would not think it is a logical for the board to allow the staff or the prevailing attorney to draft the order based on that information. Certainly, a good deal of additional information would have to be included, but as I say, the most important part of a variance application is the finding of an exceptional physical feature on the property itself.

In a similar manner, with regard to a conditional use permit (otherwise known as a special exception and many other different names), if the moving member clearly indicated that the use of the property in the manner requested was generally consistent with the other uses in the surrounding vicinity, and that any specific requirements for the conditional use had been complied with, once again, I think most reviewing courts would then allow the staff or the prevailing attorney to fill in the other more minor details of the order or minute entry.

Similarly, on a motion to deny the application, in the case of a variance, the motion might say that there is no exceptional physical feature on the property and/or that there is no hardship suffered by the applicant; and in the case of a conditional use permit, that the use of the property as proposed is not consistent with the other uses in the general vicinity and did not meet all of the requirements. In the case of a denial of a conditional use permit, it would behoove the moving member to specifically identify which of the specific requirements was not complied with. If none of them were complied with then simply say that.

The idea, as you can tell, is to limit the amount of information which must be contained in the motion. The complexity of framing a motion to grant a variance or conditional use permit makes doing that successfully on the spur of the moment almost impossible. Alternatively, if the attorney for the prevailing side so desires, language for suggested motion could be included with the letter justifying the appeal. I have not done this myself in the past, but I have seen it done on several occasions. I would suggest that any such suggested language should be fairly simple and straightforward without the complexity that we lawyers often interject. A sample of such language might be as follows:

I’ll make a motion to approve the variance to permit a reduction in the required sideyard, down to [x number of feet]. In this case, the property is exceptionally narrow when compared to other properties and this causes undue hardship because the applicant can’t use his property in a manner similar to other owners in the same area. This condition was not created by the applicant or others after the adoption of the zoning regulations, the variance won’t cause substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.

Let me add that I’ve never seen a motion that would be as good as this one. Notice that it is fairly lengthy even though I have kept it as short as I think reasonably possible. It might be advisable to add that the hardship is not solely based on pecuniary considerations and that the size of the variance is no more than necessary to cure the hardship. But unless the members of the zoning board are provided with a sample order such as this for every case, it would be very difficult for the members of the board to remember all of this, especially if the board had a docket of 10 to 20 cases, only some of which are variances.

Frankly, my experience is that most trial courts are so overjoyed to see anything remotely resembling an order or minute entry which addresses the specifics of a particular case that it is usually sufficient to persuade the court that the board’s decision, to grant or deny, will be upheld.

Board rules that applicant can't return for 6 months

An interesting issue came up in a recent case from North Dakota. That case, Dahm v. Stark County County Bd. Of County Com’rs, 841 NW2d 416 (ND Dec 19,2013), involved an application for a rezoning combined with a subdivision plat. Because the rezoning was denied, the applicant sued the county making a number of allegations, including arbitrary and capricious action, conflict of interest, and an erroneous ruling precluding admission of additional testimony. Similar arguments are seen in many land use cases.

The interesting thing to me about this case was that the County after denying the application, also decided that it did not want to hear from the applicant regarding this particular property for at least another six months, and included language to that effect in denying the application. The North Dakota Supreme Court found nothing untoward about this ruling.

There are a number of local boards and commissions here in middle Tennessee which have rules precluding the submission of the same or a substantially similar application for a period of sometimes 6, sometimes 12 months once the original application has been denied. Many years ago, I wrote in a similar provision for the Metro Board of Zoning Appeals, in an effort to stop serial applications for the same or substantially similar relief. At the time, the board had several applications where the same applicant would attempt to get back on the agenda nearly every month by making some minor change in the proposed application. Obviously, this slows down the ability of the board to handle the cases coming before it, and is a total waste of time from the board’s perspective since having denied it originally, minor changes in the proposal are unlikely to warrant reconsideration.

I have not seen those rules challenged either here in Tennessee, or elsewhere. And of course, this case is somewhat different: the North Dakota ruling did not have to do with a standing rule but was specifically implemented in this particular instance because the applicant had been to the County board for 3 months in a row and the board was simply tired of hearing the application, especially given the fact that several requests for additional information had been made but not complied with by the developer.

In any event, the North Dakota Supreme Court upheld the six-month ban.

The decision to implement a six-month appearance restriction was also not arbitrary, capricious, or unreasonable. In making its decision, the County Board noted that Dahm had presented the Duck Creek Estates project three months in a row without adequately resolving the issues of roads, sewage, water, and population density. As the district court reasoned, "the time and effort expended by the Stark County Zoning Board, the City and County Planner, and by the Stark County Commission persuades the Court that there was no violation of Stark County's authority and obligation to regulate land use . . . by their decision to impose the six month prohibition." Here, given the repeated attempts to re-zone and the failure to make the requisite adjustments, it was not unreasonable for the County Board to implement a six-month wait period.

Certainly, the North Dakota Court relied on the specific facts in this case, which would not be present given the text of the 6 month rules here in Tennessee. But I tend to think that our courts would react similarly: that the applicant had received a hearing and lost, and could reapply 6 months later and that as a result, the rule precluding submission of the same or a similar request within that timeframe was not arbitrary and capricious or violative of the applicant’s rights in any way. These rules seem to make good sense, and they don’t preclude the applicant from ever coming back, they just delay the return for a rather short period of time.

Mandatory Consistency

In my comments yesterday, I referred to Tenn. Code Ann. § 13-4-202(b), which allows a planning commission to request legislative approval of General Plans here in Tennessee, and the recent amendment extending the required consistency to include local zoning boards. Perhaps it would be well to discuss the original provision in order to understand it further.

Before exploring that topic, some history is perhaps worth reviewing. Remember that planning is an important precursor to land use regulations. The theory is that a plan is developed by the planning commission, and then regulations, including the zoning ordinance are passed giving effect to the plan. In the words of the Standard Zoning Enabling Act (see a discussion in Wiki here), zoning was to be "in accordance with the comprehensive plan." Many state zoning acts use this language, at least originally, even if it is not precisely clear what was intended.

Here in Tennessee, however, that language was avoided entirely. Alfred Bettman, from Ohio, was asked to draft the Tennessee act in 1934. He was one of the most prominent land use attorneys of the early 20th Century, and he selected very different language:

Whenever the planning commission of the municipality makes and certifies to the chief legislative body a zoning plan, including both the full text of a zoning ordinance and the maps, representing the recommendations of the planning commission for the regulation by districts or zones . . . , then the chief legislative body may exercise the powers granted . . . , and may divide the municipality into districts or zones of such number, shape and areas it may determine, and, for such purposes, may regulate the erection, construction, reconstruction, alteration and uses of buildings and structures and the uses of land.

It would seem that statute contemplates the "zoning plan" as the text of the zoning ordinance and the zoning map or maps. A separate plan, such as we are accustomed to today, was not necessary to the adoption of the zoning ordinance.

This was Bettman's view of planning and zoning. In his regard, the Planning Commission was the keeper of the plan; it was not a political document that would be sullied by the political machinations of the city council, but a bible to be interpreted and construed by the planning commission.

Unfortunately, while this might have been a fine planning perspective, it neglects the practical impact of local politics in America. The General Plan might remain pure and protected by the Planning Commission but it also became irrelevant. The city council began to simply ignore the plan and the high priests on the planning commissions. To the extent that the state zoning law required a large majority to override a recommendation of the Commission, that became an accepted practice. In Metro Nashville, for example, where a 2/3rds majority is required to override by the Charter, if the local councilmember wishes to override, it is usually not a problem.

In took about 30 years, but in 1964, TJ Kent in his famous book, "The Urban General Plan" argued that the plan had to be adopted by the city council in order to have an impact on the decisions being made by city leaders. He argued persuasively that the plan could not just be the Planning Commission's document but that it had to be shared with the leadership of the city and adopted by the city council. Perhaps the plan would not remain quite so pristine, but it would have an impact on decision not not be entirely ignored as so many had become.

Tennessee's legislation was not immediately amended to reflect this change in planning philosophy. But in 2008, the General Assembly allowed a city to choose to follow the Kent model (it is not required). Let's take a look at the language:

Once the commission has adopted the general plan or amendment of the general plan for the planning jurisdiction of the commission, the commission's transmittal of the certification to the legislative body may simultaneously include a resolution by the planning commission requesting the consideration and adoption of the general plan by the legislative body of the municipality . . . The municipal legislative body, by ordinance, may adopt the general plan as certified by the planning commission

Tenn. Code Ann. § 13-4-202(b). The planning commission gets to choose: if councilmanic action seems apropos, then the planning commission may request it, and if not, not. But, once the request has been made and accepted, the planning commission is no longer the sole keeper of the plan. Substantial control over the document is vested in the council

The planning commission may vote to amend, but outside of only a few counties, before the amendment becomes effective, the council must also adopt it. Tenn. Code Ann. § 13-4-202(b)(1)(A). Further if the council wants to amend, the commission has 60 days to agree; if not, the council may pass the amendment by a majority vote. Tenn. Code Ann. § 13-4-202(b)(2)(A).

To illustrate this power further, suppose the planning commission asks for the involvement of the council, but the plan as certified has some objectionable elements. Remember that the statutory language authorizes the council to adopt the General Plan as certified. Tenn. Code Ann. § 13-4-202(b). Does this effectively prevent the council from acting? No way; the council simply adopts the plan as certified and then immediately notifies the planning commission of its intent to remove the offending elements out of the plan. If the planning commission will not agree within 60 days, the council simply passes its own version after the 60 days expires. Tenn. Code Ann. § 13-4-202(b)(2)(A).

The importance point in this legislative amendment is that once the General Plan is adopted in this way, all future land use decisions must be consistent with the plan. Tenn. Code Ann. § 13-4-202(b)(2)(B)(iii). That is, the city council (or county legislature), the planning commission, and the zoning board (except with regard to variances) must make decisions which are consistent with the plan. If not, it will provide a legal grounds to challenge the decision and seek a reversal. With the exception of the Smart Growth Act, Tenn. Code Ann. § 6-58-101, 107, this is the only statute that requires mandatory consistency with the General Plan.

I think that TJ Kent would applaud the changes made by the General Assembly. Whether many municipalities will adopt this process, and how effectively it will work here in Tennessee, remains to be seen. At least now however, the choice is there, and the local governments can make an educated decision about how to implement the long range planning process within their jurisdictions.