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.
Showing posts with label zoning amendment. Show all posts
Showing posts with label zoning amendment. Show all posts
Wednesday, November 7, 2018
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, February 23, 2018
Municipal Websites as Notice of Zoning Changes
There is a new proposed bill pending before the General Assembly which would allow municipalities to give notice of zoning changes by giving notice of the required public hearing on the municipal website. While this seems like a very reasonable idea, perhaps notice should be required both on the website and in a newspaper as well. Currently it is required either in the musical journal, whatever that might be, or in a newspaper of general circulation. Adding a website requirement will certainly be helpful in most instances, particularly in the larger cities. See House Bill 2226.
Tuesday, August 2, 2016
Speedy Cash: Vested Rights, Estoppel and Standing
In a decision filed on April 22, 2016, Chancellor Ellen Hobbs Lyle ruled that a cash advance financial institution had established an equitable estoppel which prevented Metro Nashville from revoking a permit which had erroneously been issued. The case, Concord Finance, Inc., d/b/a Speedy Cash v Metro Board of Zoning Appeals and Tennessee Quick Cash, Inc., Docket #15-1362-III, is extremely interesting inasmuch as its result is very unusual.
I will summarize the facts quickly although the opinion is quite lengthy and in these vested rights/estoppel cases, the factual setting is always the most important. Having said that, the essential facts are that Speedy Cash applied for a building permit in September 2014 to renovate and remodel an existing convenience market on Dickerson Pike. While the application for the building permit was pending, the Metro Council amended the zoning ordinance in a way which would prohibit the location of a cash advance retail store at that location. Ultimately Metro Codes decided to go ahead and issue the permit notwithstanding the passage of the new zoning regulation. The construction was virtually completed when on April 21, 2015, the Metro Zoning Administrator issued a stop work order and revoked the building permit. The stop work order noted that the permit had been issued in error. Speedy Cash had spent approximately $600,000 in the construction effort.
Speedy Cash appealed the decision to the Metro Board of Zoning Appeals, but the administrative body upheld the decision of the Metro Zoning Administrator. From there, an appeal was taken pursuant to the common law writ of certiorari.
The court looked at three different issues: vested rights and the pending ordinance doctrine, equitable estoppel, and standing. It is worthwhile to read the entire opinion, but again, I will very briefly summarize the decision of the court.
The court found against Speedy Cash with regard to the vested rights doctrine. The court found that the undisputed facts indicated that the new zoning ordinance became effective on November 19, 2014. The building permit was not issued until December 2, 2014. "Issuance of a permit for a building that does not comply with the law renders the permit illegal and, therefore, invalid and of no effect as of the date of its issuance…" Slip Opinion at 12.
The court engaged in some additional analysis based on the pending legislation doctrine, but frankly, I think the summary above encapsulates the significant holding. Ultimately, if a building permit is issued in violation of the existing law at the time of issuance, it is simply void and of no effect. It doesn't make any difference how much construction was completed or how much it cost.
The court then turned to the equitable estoppel argument. Once again, the law is not favorable for Speedy Cash. The equitable estoppel doctrine applies only very rarely to governmental entities. The court cited Sexton v Sevier County, 948 S.W. 2d 747, 751 (Tenn. App. 1997) as an example. There are many others.
However in this case, the court concluded that Metro's conduct clearly induced and caused detrimental reliance by Speedy Cash and given the fact that the building was completely constructed and its design customized for use as a cash advance retail outlet, the doctrine should apply. The important facts related to the original hesitation by Metro Codes to issue the permit, a review by Metro Codes, and a final decision indicating that the permit would be issued and in fact was issued, because it was "grandfathered" in. Most likely, that determination was incorrect; but its effect was to induce the applicant to move forward with the construction effort and spend a very significant amount of money.
Accordingly, the court found in favor of the applicant (Speedy Cash) and reversed the decision of the Metropolitan Board of Zoning Appeals.
Finally, one remaining issue was determined by the court. A competitor, Tennessee Quick Cash appeared before the Board of Zoning Appeals and also participated in the arguments before the Chancery Court. Tennessee Quick Cash admitted that it did not have a store within a quarter mile of the Speedy Cash location. The court noted that in order to have standing, Tennessee Quick Cash must show a direct and palpable injury, a special injury not common to the public generally. City of Brentwood v Metro Board of Zoning Appeals 149 S.W. 3d 49, 58 (Tenn. App. 2004). Tennessee Quick Cash argued that its status as a business subject to the same regulatory structure as the petitioner gave it standing. The court concluded however that the threatened injury necessary to confer standing in a zoning case must be related to the use of the property – dust, noise, traffic, or something similar. Nothing like that appeared in the record with regard to Tennessee Quick Cash, and it certainly didn't flow simply from being a business competitor. Therefore, the court concluded that Tennessee Quick Cash had no standing to speak before the Board of Zoning Appeals and had no standing before the Chancery Court.
This final holding is somewhat unusual, but certainly understandable. It reinforces the concern that any land use attorney has when representing a business competitor who is not located within a short distance from the project itself. In this case, the court used a quarter of a mile, and as it happens, that is my usual rule of thumb: I always look to see if my client (or conversely, an opponent to my client's project) is located within a quarter of a mile of the proposed project. There are some Tennessee cases which suggest 2000 feet, and certainly if your opponent is located that far away that's even better, but a quarter of a mile has always seemed to me to be a reasonable distance. If the objecting party is located more than a quarter of a mile away from the project, there's a pretty strong likelihood that there is no standing.
Anyway, this case gives us three valuable lessons on zoning law. First, vested rights are hard to establish under the Tennessee common law, where you need both a building permit and substantial construction. But more than that under the circumstances of this case, even if you obtain a building permit and even if you engage in substantial construction, if the building permit itself did not comply with the existing law at the time of the issuance of the permit, the permit is most likely void and there are no rights to vest.
Remember also, that the Tennessee Vested Rights Act became effective after the events in this case, on January 1, 2015, but it probably would not have made any difference. The Tennessee Vested Rights Act, Tenn. Code Ann. § 13-4-310 (b)-(k), requires only the issuance of a building permit, and unlike the common law, it does not require any construction in order to vest. But, once again, if the building permit was void at the time of issuance by virtue of the fact that it did not comply with the zoning or other land development regulations in effect at the time of its issuance, then there are probably no rights which have vested even pursuant to the terms of the statute. The building permit must comply with the local regulations, and if not, it is not very helpful in future litigation.
The second lesson is that even though it is extremely unusual, every once in a while, given unusual facts, an equitable estoppel can be made out against a local government. It doesn't happen often, but from time to time it can be very effective.
Finally, and perhaps a more frequent issue which can come up in virtually any zoning board hearing, the standing of a business competitor is certainly undercut by the Chancellor's decision. The business competitor needs to demonstrate that it is within a short distance from the project, like anyone else, or have some other overwhelming reason that it should have the right to contest the project. Otherwise it simply lacks standing to participate.
I will summarize the facts quickly although the opinion is quite lengthy and in these vested rights/estoppel cases, the factual setting is always the most important. Having said that, the essential facts are that Speedy Cash applied for a building permit in September 2014 to renovate and remodel an existing convenience market on Dickerson Pike. While the application for the building permit was pending, the Metro Council amended the zoning ordinance in a way which would prohibit the location of a cash advance retail store at that location. Ultimately Metro Codes decided to go ahead and issue the permit notwithstanding the passage of the new zoning regulation. The construction was virtually completed when on April 21, 2015, the Metro Zoning Administrator issued a stop work order and revoked the building permit. The stop work order noted that the permit had been issued in error. Speedy Cash had spent approximately $600,000 in the construction effort.
Speedy Cash appealed the decision to the Metro Board of Zoning Appeals, but the administrative body upheld the decision of the Metro Zoning Administrator. From there, an appeal was taken pursuant to the common law writ of certiorari.
The court looked at three different issues: vested rights and the pending ordinance doctrine, equitable estoppel, and standing. It is worthwhile to read the entire opinion, but again, I will very briefly summarize the decision of the court.
The court found against Speedy Cash with regard to the vested rights doctrine. The court found that the undisputed facts indicated that the new zoning ordinance became effective on November 19, 2014. The building permit was not issued until December 2, 2014. "Issuance of a permit for a building that does not comply with the law renders the permit illegal and, therefore, invalid and of no effect as of the date of its issuance…" Slip Opinion at 12.
The court engaged in some additional analysis based on the pending legislation doctrine, but frankly, I think the summary above encapsulates the significant holding. Ultimately, if a building permit is issued in violation of the existing law at the time of issuance, it is simply void and of no effect. It doesn't make any difference how much construction was completed or how much it cost.
The court then turned to the equitable estoppel argument. Once again, the law is not favorable for Speedy Cash. The equitable estoppel doctrine applies only very rarely to governmental entities. The court cited Sexton v Sevier County, 948 S.W. 2d 747, 751 (Tenn. App. 1997) as an example. There are many others.
However in this case, the court concluded that Metro's conduct clearly induced and caused detrimental reliance by Speedy Cash and given the fact that the building was completely constructed and its design customized for use as a cash advance retail outlet, the doctrine should apply. The important facts related to the original hesitation by Metro Codes to issue the permit, a review by Metro Codes, and a final decision indicating that the permit would be issued and in fact was issued, because it was "grandfathered" in. Most likely, that determination was incorrect; but its effect was to induce the applicant to move forward with the construction effort and spend a very significant amount of money.
Accordingly, the court found in favor of the applicant (Speedy Cash) and reversed the decision of the Metropolitan Board of Zoning Appeals.
Finally, one remaining issue was determined by the court. A competitor, Tennessee Quick Cash appeared before the Board of Zoning Appeals and also participated in the arguments before the Chancery Court. Tennessee Quick Cash admitted that it did not have a store within a quarter mile of the Speedy Cash location. The court noted that in order to have standing, Tennessee Quick Cash must show a direct and palpable injury, a special injury not common to the public generally. City of Brentwood v Metro Board of Zoning Appeals 149 S.W. 3d 49, 58 (Tenn. App. 2004). Tennessee Quick Cash argued that its status as a business subject to the same regulatory structure as the petitioner gave it standing. The court concluded however that the threatened injury necessary to confer standing in a zoning case must be related to the use of the property – dust, noise, traffic, or something similar. Nothing like that appeared in the record with regard to Tennessee Quick Cash, and it certainly didn't flow simply from being a business competitor. Therefore, the court concluded that Tennessee Quick Cash had no standing to speak before the Board of Zoning Appeals and had no standing before the Chancery Court.
This final holding is somewhat unusual, but certainly understandable. It reinforces the concern that any land use attorney has when representing a business competitor who is not located within a short distance from the project itself. In this case, the court used a quarter of a mile, and as it happens, that is my usual rule of thumb: I always look to see if my client (or conversely, an opponent to my client's project) is located within a quarter of a mile of the proposed project. There are some Tennessee cases which suggest 2000 feet, and certainly if your opponent is located that far away that's even better, but a quarter of a mile has always seemed to me to be a reasonable distance. If the objecting party is located more than a quarter of a mile away from the project, there's a pretty strong likelihood that there is no standing.
Anyway, this case gives us three valuable lessons on zoning law. First, vested rights are hard to establish under the Tennessee common law, where you need both a building permit and substantial construction. But more than that under the circumstances of this case, even if you obtain a building permit and even if you engage in substantial construction, if the building permit itself did not comply with the existing law at the time of the issuance of the permit, the permit is most likely void and there are no rights to vest.
Remember also, that the Tennessee Vested Rights Act became effective after the events in this case, on January 1, 2015, but it probably would not have made any difference. The Tennessee Vested Rights Act, Tenn. Code Ann. § 13-4-310 (b)-(k), requires only the issuance of a building permit, and unlike the common law, it does not require any construction in order to vest. But, once again, if the building permit was void at the time of issuance by virtue of the fact that it did not comply with the zoning or other land development regulations in effect at the time of its issuance, then there are probably no rights which have vested even pursuant to the terms of the statute. The building permit must comply with the local regulations, and if not, it is not very helpful in future litigation.
The second lesson is that even though it is extremely unusual, every once in a while, given unusual facts, an equitable estoppel can be made out against a local government. It doesn't happen often, but from time to time it can be very effective.
Finally, and perhaps a more frequent issue which can come up in virtually any zoning board hearing, the standing of a business competitor is certainly undercut by the Chancellor's decision. The business competitor needs to demonstrate that it is within a short distance from the project, like anyone else, or have some other overwhelming reason that it should have the right to contest the project. Otherwise it simply lacks standing to participate.
Friday, March 7, 2014
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 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.
Thursday, February 13, 2014
Legislative Immunities and Zoning Changes
Recently, the Nevada Supreme Court ruled that there was no First Amendment right of association and no unconstitutional vagueness where a city legislator was censured for voting for a zoning change on a project where he had a conflict of interest. Carrigan v Commission on Ethics of the State of Nevada, 313 P.3d 880 (NV Nov. 27, 2013). The case was on remand from the US Supreme Court, Nevada Commission on Ethics v Carrigan, 131 S Ct 2343, 180 L. Ed. 2d 150 (2011), which found that the censure of council member because of his failure to recuse himself when voting on a matter where his campaign manager was paid $10,000 a month by a developer while seeking permits from the city was not protected by any First Amendment right in casting a vote. Both cases are worth reading. Essentially, the city council member was arguing that any conflict of interest was protected by his First Amendment rights. While the analysis by the US Supreme Court was a bit unusual, relying on a historical perspective of the First Amendment, certainly the conclusion that there was no such protection seems correct.
Monday, February 7, 2011
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.
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.
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