Variances in Iowa: Observations Applicable to Tennessee

 Earley v Board of Adjustment Cerro Gordo County, 2021 WL 744513 (Iowa February 26, 2021)

This very interesting case from the Iowa Supreme Court discusses the standards for area variances, and whether those are different from other types of variance requests. The court concludes that the same restrictive standards would apply and, from my perspective, this is ultimately the correct answer here in Tennessee as well.

This is a fairly typical variance request case. The property owners, Gregory and Lea Ann Saul, hired a contractor to build a pergola on the side of their home, covering a patio. The property is located in a single-family residential district, with a required 6 foot side yard setback. The pergola and patio are only 21 inches from the property line.

After construction, the local zoning officials informed the owners of the violation, a permit was applied for, denied, and a variance requested. Again, in typical fashion, the property owners were unable to demonstrate any unnecessary hardship. While the precise requirements for variance under Iowa law are different from those here in Tennessee, there was no proof of any unique physical feature or any other variance requirement.

Nevertheless, also a tradition in zoning variance cases, the members of the zoning board felt that the pergola “looked nice” and unanimously approved the variance, waving the penalty for building the pergola without a permit.

As you might expect, the neighboring property owner, Ms. Earley, appealed pursuant to a petition for writ of certiorari. The local court upheld the decision of the zoning board, and the Court of Appeals affirmed the District Court. The Iowa Supreme Court granted the application for further review.

First, the Iowa Supreme Court gives a nice summary of rules of thumb for variances. Variances should be granted sparingly and with great caution or in exceptional instances only. The board cannot amend or set aside the zoning ordinance under the guise of a variance. If an applicant does not make the required unnecessary hardship showing, granting a variance is an illegal act by the board.

Second, I’d like to emphasize that the standards for variances in Iowa, at least statutorily, are quite different from those here in Tennessee. The statute at issue in this case, Iowa Code §335.15 (3) provides:

To authorize upon appeal, in specific cases, such variance from the terms of the ordinance as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done.

This language is verbatim the variance provision found in the Standard State Zoning Enabling Act promulgated by a blue ribbon committee working with Herbert Hoover’s Department of Commerce in the middle 20s, almost 100 years ago. As I have written elsewhere, the problem with this language is that it offers no real standards by which to judge whether an application for a variance should be granted or not. A number of courts, including the Iowa Supreme Court, have adopted an approach suggested by the New York Court of Appeals in Otto v Steinhilber, 282 NY 71, 24 NE 2d 851, 853 (1939). The New York Court articulated a three-part test requiring the applicant to show:

(1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone;

(2) the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood; and

(3) the use to be authorized by the variance will not alter the essential character of the locality.

Of course, as you read those requirements, it’s clear that the New York high court was considering a use variance rather than a bulk or area variance, the subject of the Iowa case. Further, while the second and third conditions make reasonable sense and in fact are to a large extent mirrored by the more specific Bettman model variance provision which we have here in Tennessee, the first criterion, asking if a reasonable return is possible, seems to me largely irrelevant. From my perspective, if there is some unusual physical feature of the property which prevents the applicant from utilizing some aspect of his property in a manner similar to what would be permitted on other properties in the same general area, then a variance should be granted, regardless of whether there is a reasonable return. That issue is a continuing debate in Tennessee as in other jurisdictions.

The Iowa Supreme Court made clear that it had adopted the New York standard in Deardorff v Board of Adjustment, 254 Iowa 380, 383-84, 118 N.W. 2d 78, 80 (1962). In that case, a variance which was granted to allow a greater height then permitted under the applicable zoning regulations was overturned by the Iowa Supreme Court, concluding that there was no demonstration of any unique physical feature justifying the relaxation of their zoning regulations in favor of that particular property owner.

In this case, the court observes that the Court of Appeals below concluded that a different standard should apply in the case of an area variance, that is, where some bulk regulation such as a side yard requirement, is the subject of the request. The court first reviewed the distinction between use variances and area variances:

A use variance permits the use of land for purposes other than those prescribed by the zoning ordinance, and is based on the standard of unnecessary hardship.” On the other hand, an area variance does not involve a use prohibited by the ordinance, but concerns a deviation from specific requirements such as height limitations, setback lines, size regulations and the like. 

Relying on a law review article, N. Williams Hines, Difficulties Standard for Area Variances, 102 Iowa Law Review Online 365, 366 (2018), which noted that “notwithstanding the distinctly different purposes served by these two types of zoning variances, two-thirds of US states, including Iowa, apply the same strict requirements for granting them both,” the court found that to be a correct statement of the law.

The court felt that the rule of stare decisis required consistency in application of the standard. This is particularly true because the requirements for obtaining a variance are set by statute. The legislature presumably was aware of the court’s interpretation of the statute, and if the legislature had wanted to change that interpretation, it had only to change the language of the statute. After almost 60 years, no such amendment to the statutory provision had been made.

After clarifying the standards to be applied, the court applied those standards to this case. The application of the standards is largely immaterial to us here in Tennessee. However one interesting aspect, which comes up time and time again, is the fact that the property owners argued that their good faith completion of the illegal pergola was a factor which should augur in favor of allowing the variance to stand. The Supreme Court of Iowa indicated that it had repeatedly rejected these types of equitable considerations as immaterial to the statutory grounds authorizing a variance. The same is, and should be, the rule here in Tennessee.

The court reversed the decision granting the variance. While the standards for variances in Iowa are very different from those here in most jurisdictions in Tennessee, the case is highly instructive. The same kinds of issues arise time and time again before not only the courts in Iowa and Tennessee, but I dare say, across the vast majority states in the country as a whole.

As I finished this entry, I remembered an old case of mine, JD Biggs v Metro Board of Zoning Appeals, decided in the early 80s. In that case, it was a carport which was constructed with a permit, but the permit showed the required 5 foot side yard. As built, the carport was within 2 feet of the property line. The zoning board turned down the application for a variance, the trial court affirmed, and although I no longer have a copy of the case, I believe that the Tennessee Court of Appeals affirmed as well. I will try to upload a copy of the trial court opinion in the near future.

Ward v Metro Board of Zoning Appeals

The Davidson County Chancery Court has upheld the Metro Board of Zoning Appeals which agreed with Bill Herbert, the Metro Zoning Administrator, that the Glencliff Methodist Church should be granted an accommodation to allow 22 "tiny homes" for the homeless on the church property. Metro and the Church argued that the accommodation was required to avoid a substantial burden on the religious beliefs of the  Church and its members. The Church and its members sincerely believe that part of their religious duty is to help the homeless and other disadvantaged people.

The neighbors filed the appeal arguing that the accommodation was not essential and that the land use regulations were compelling in nature. The latter argument was undercut by the decision of the Board, which did not find that the regulations were compelling.

The Court first found that the petitioners did have standing to sue because they lived close to the church property based on the certiorari petition.

Furthermore, the Court concluded that the petitioners failed to establish by clear and convincing evidence, under the facts of this case, that enforcing the neutral residential zoning laws and subdivision regulations against the Church was essential to furthering a compelling governmental interest. The Metropolitan Government did not assert that any such compelling interest exists under the specific facts of this case.   The record contained material evidence supporting the decision of the Board of Zoning Appeals, and  therefore the court upheld its decision.

Most likely this case will be appealed to the Tennessee Court of Appeals. There is, as of yet, very little case law interpreting the Tennessee statute, and this case should offer guidance to legal counsel as to how the statutory provisions should be construed.

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.

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.

The city can sue its own zoning board!

With the decision by the Tennessee Supreme Court in Metro Nashville v Metro Board of Zoning Appeals and CBS Outdoor, the next question to ask, if you are seeking some type of relief from a local zoning board, or if you’re opposed to the relief being sought, is how to minimize or maximize the possibility that the government will sue the zoning board. It is really not clear what rules apply under these circumstances.

Let’s assume for the moment that you are the successful applicant for a special exception or you have successfully argued that your property is legally non-conforming. After the zoning board memorializes its decision either by minute entry or some other separate writing, anyone wishing to file an appeal must do so within 60 days after the writing is adopted by the board. Until those 60 days have expired, there is no guarantee that the relief which has been granted by the board will not be challenged and overturned on appeal.

Certainly, the standard tips are always worth following: get the permission of the board to prepare the minute entry or other writing so as to maximize the chances that if the city lawyers were to look at it, they would conclude that the chances of successfully challenging the decision are remote. Object to the standing of the city (or anyone else); I usually include a boilerplate standing objection in a letter to the board explaining why the relief is necessary. It’s not clear that the local government has to demonstrate standing of any type, but until the standing requirements has been clearly ruled out as inapplicable to local governments, it’s worth raising the objection.

Finally, the arguments in the CBS Outdoor case from the perspective of the government , seem to be that the government needed the ability to challenge  zoning board decisions because otherwise the board’s actions might lead to some type of legal liability, or be so far from accepted land use and zoning practice, as to be totally unlawful. Certainly, anyone who has spent any significant time with the zoning board will know that many of the members of such boards are unwilling to follow some of the legal rules established for relief to be granted. However, if the concern is potential legal liability or outlandish conduct, then it would also behoove the successful applicant to demonstrate that the type of relief granted will not cause any type of legal liability and is not unusual but rather is a straightforward application of land use principles to particular factual matter.

To some extent, these arguments were made in the CBS Outdoor case and they proved to be unavailing. However, one part of the equation may have been the land use involved: outdoor advertising is not a favorite activity of many people, and under such circumstances, challenges may be made and decisions rendered which might not apply under other circumstances.

As time goes along, we will perhaps get some feel for how local governments choose to use this newfound power. Portrayal of the application as a garden-variety zoning case may help ensure that at least the city doesn’t appeal, even if the neighbors may choose to do so themselves.

And if you are working with the neighbors, don’t forget that contacting the local government attorney, insisting that the application is an oddball an extreme perversion of the board’s powers may put you in a position where the city winds up suing its own zoning board and may give you a better chance of prevailing on the merits. In any event, if there are two challengers to the decision, there will certainly be more ideas about the best approach and frequently, the local government may be accorded some deference in its challenge to its zoning board’s decision.

Perhaps 2016 will bring us some further guidance in this area.

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.

The Writ of Cert and "Something More"

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

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

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

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

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

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

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

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

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

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

Caffey v Metro BZA (Tenn. App. June 2013)

We have discussed in the past the difficulties encountered by property owners attempting to obtain variances under Tennessee law. Tenn. Code Ann. §13-7-207 (3) requires that there be some exceptional physical feature which justifies the relaxation of the zoning requirements as to any particular property, and that that exceptional physical feature not the shared by other properties in the general vicinity.

In Caffey v Metro Board of Zoning Appeals, the property owner requested basically an extension of a previously granted variance in the required side yard. The side yard, as required by the zoning ordinance, had only to be 5 feet wide; previously, the zoning board had granted a variance of 4 feet, and the property owner now returned with a request to extend that variance by one more foot, allowing construction right up to the property line.

The decision by the Court of Appeals, does not discuss the factual basis for the variance granted by the zoning board in any detail. Frankly, two very practical considerations seem to be at play here: first, that there was an assumption that there was a unique physical feature on the property by virtue of the original zoning board decision (something which probably should never be assumed); and second, that a 12 inch variance was nothing to get too excited about.

Although the adjacent property owner protested and appealed, the zoning board granted the variance, the trial court affirmed the variance, and the Court of Appeals reach the same conclusion.

This might perhaps be viewed as an exception to the general rule of great difficulty in obtaining variances under Tennessee law, but more likely it is explained by the two factors above: the zoning board had already granted a variance so there must’ve been some exceptional physical feature, and to extend that variance only another 12 inches, did not seem like any particular problem.

It’s an interesting case, and worth review. It’s unusual to find a property owner returning for an extension of the original variance. In fact, I can’t think of any case that I know of where that has happened before in my experience. But, if you have a client who has a similar situation, the difficulty obtaining an extension may not be that great.

Use Variances: Takings issues

Recently, in Hejna v Board of Appeals of Village of Amityville, 2013 WL 1442463 (NY App Div 4/10/2013), the New York Appellate Division reversed the decision of the local zoning board granting any use variance. Although this is certainly not new law in New York, and bearing in mind that New York allows both use and bulk variances, the holding this case is interesting in that it follows the established rule in New York that in order to obtain the use variance, the landowner must show, based on competent financial evidence, that it cannot yield a reasonable rate of return absent the requested variance.

In the New York case, it was clear that there was no proof at all of any financial nature which would demonstrate the property owner’s inability to obtain a reasonable return on investment. In effect, the New York courts permit this as an administrative means of demonstrating a taking of the property.

Here in Tennessee, there have been a couple of cases over the years which have suggested that in Tennessee, even when granting a variance to bulk regulations (and in Tennessee, as I have frequently said, use variances are most likely illegal anyway) there needs to be some showing that the property is incapable of financial return in the absence of a variance. I have always believed that this adds a component which is not in the enabling legislation and as a result is inappropriate. It also worries me inasmuch as it is very difficult for the judiciary to understand when there is a taking of property; it is that much more difficult for a zoning board, composed mostly of lay members, to understand what a taking might be. Thus, adding that requirement onto the difficult requirements that are already statutorily required (for example, see Tenn. Code Ann. §13-7-207 (3)) makes it a lot harder to get a variance in Tennessee, and it’s already hard enough.

If you have to show all the other things that are required here in Tennessee and that the financial return is insufficient on top of that, it just becomes almost impossible. And it’s pretty close to impossible now. Let’s not add another requirement that is not statutorily mandated.

Can a local government sue its own zoning board?

The legal question concerning whether a local government can sue its own board of zoning appeals seems to be gaining steam. First, my own case, Cheatham County v Cheatham County Board of Zoning Appeals and Randall and Margaret Mooneyhan, was decided last November. The issue was not directly addressed in that one however by the Court of Appeals because the County withdrew its appeal shortly before the oral argument before the court, and the only issue which remained was whether attorneys’ fees should be awarded to the Mooneyhans. However, in addressing this issue, both the majority and concurring opinions seem to clearly indicate significant doubt about the ability of a local government to sue its own board.

Meanwhile, over in Collierville, in a case involving the non-conforming status of billboards, the zoning board evidently voted not to require the owner to take the offending billboards down, and the Board of Mayor and Alderman have voted to sue the zoning board in order to have the billboards removed. This turn of events arises out of an interesting decision issued previously by the Tennessee Court of Appeals, Abbington Center v Town of Collierville (Tenn. App. 2012). We previously discussed this case.

Here in Nashville, there are two other cases with the same issue involved. In Metro Nashville v Metro BZA and Lamar, the local government suit its own board of zoning appeals arguing that its decision finding the replacement of a mechanical sign face with a digital sign face was not permitted under the terms of the local zoning ordinance and was not protected by the Tennessee Non-Conforming Property Act, Tenn. Code Ann. §13-7-208. Among the issues raised, was the propriety of a suit by the local government against its own zoning board. The Davidson County Chancellor, Claudia Bonnyman, ruled in favor of Metro Nashville, finding that the local government could sue.

However, just last Friday, in a case styled Metro Nashville v Metro BZA and CBS Outdoor Inc., CBS filed a motion to dismiss raising the same argument, but the local government lacked standing to file suit against its own zoning board. This time, a different Chancellor, Carol McCoy, concluded that the local government could not sue its own board of zoning appeals.

Both cases, as you might suspect, are going up on appeal. There are certainly policy arguments on both sides. The ultimate answer to the question may rest with the Tennessee Supreme Court.

Tattoos in Memphis

Periodically it is interesting to survey the state see what interesting zoning issues are cropping up here and there. Over the last several months, there’s been an interesting battle in Memphis concerning a tattoo shop. Evidently the owner leased the premises in the recently renovated Broad Avenue Arts District without making sure that zoning was appropriate for operating a tattoo parlor, and after the lease was signed, discovered that in fact the zoning did not permit that land use.

He appealed to the Board of Adjustment in Memphis for a variance, but as we have discussed on this blog several times, variances in Tennessee are very difficult to obtain, and his application was denied.

He is evidently now attempting to rezone the property so as to be able to operate the tattoo parlor. The zoning change is a much more political decision, so it will be interesting to see if he is successful in obtaining the change. It appears that many of his neighbors are opposed.

Here’s a local article about the controversy.

BZA decisions must be consistent wtih General Plan

One of the more interesting new zoning laws which becomes effective July 1, 2011 (that's right, next year, not this!) extends the mandatory consistency of the General Plan in those jurisdictions where the Planning Commission has recommended and the local legislative body has adopted the General Plan. This is a distinct minority of Tennessee jurisdictions: most General Plans are adopted by the Planning Commission and no legislative action is needed.

But in those areas where it is, Chapter 648 of the 2010 Tennessee Pubic Acts requires that not only must any land use decision by the legislative body and planning commission be consistent with the plan, but so too must all zoning board decisions (excepting variances). For attorneys as well as applicants to the effected zoning boards, this may add another wrinkle in the application process. The applicant will have to prove consistency with the plan, or possibly face reversal on appeal.

Let me say that it may be necessary under the state laws in effect now (in fact I usually try to prove such consistency whenever I am in front of a zoning board) so that perhaps this isn't such a big deal. However, Chapter 648 makes the requirement much more pointed, and opposing parties may find this fairly easily and thus have another argument to invalidate a zoning board decision.

I would be remiss if I did not mention that the 2008 amendment that authorized adoption of general plans by the local legislative body permits but does not require the planning commission to request adoption of the plan by the legislative body. In effect, once such a request is made and the plan adopted by the LLB, the plan becomes a creature of the LLB, and not of the planning commission. The City of Columbia Planning Commission has made such a request; I don't recall hearing if the plan was ultimately adopted by the local legislative body or not. There may be other examples but as of yet, I believe they are few and far between.

Take a look at Tenn. Code Ann. § 13-4-202(b) to understand the basic premise behind the statutory scheme; Tenn. Code Ann. § 13-3-304(b) is the companion regional provision.