Moving to Tune, Entrekin & White

It has been long time since I have changed jobs. Back in 1982, I left the Legal Department for Metro Nashville to come to work for Speight & Parker (now Parker Lawrence Cantrell & Dean). Next Monday, I'll make another change moving over to Tune, Entrekin & White. While I am certainly sad to be leaving my old friends at PLCD, the emphasis on land use and zoning issues at TEW is more aligned with my practice areas these days and it certainly looks to be a good fit both for me and for TEW. And fortunately, I have a lot of good friends over at the new firm as well, so I am looking forward to the challenge and the chance to work with my friends over there.

SP Zoning and Non-Conforming Uses

One of the criticisms of SP zoning here in Metro Nashville has been its seeming refusal to acknowledge non-conforming properties. Tennessee state law, which trumps local Metro ordinances, expressly provides that non-conforming properties may continue, may expand and may rebuild. Tenn. Code Ann. 13-7-208. SP zoning seemed to deny that state given right.

Yesterday evidently, Jon Cooper, the attorney for the Metro Council, reviewed the SP zoning along Gallatin Pike and concluded that the criticisms were well founded. Frankly, there wasn't much doubt. Jon simply applied black letter Tennessee zoning law and came up with the correct conclusion.

The interesting issue is whether the entire scheme of SP zoning is illegal. It is not authorized by Tennessee law anywhere; it is basically an entirely new way of applying zoning principles and there is little in the way of public notice as to what is going on in the back rooms where the negotiations take place concerning the "specifics" of any particular plan. It appears to be contract zoning (although I have always argued that contract zoning should be legal and this does not concern me so much). Finally, to the extent that Metro can be considered a county, it violates the uniformity provision of the county zoning enabling legislation here in Tennessee.

There has been one challenge that I'm aware of, but I believe the local Judge upheld it. If the case goes up on appeal, it might serve as an interesting review of some basic zoning and land use principles. The most important of which is to obtain state authorization for local innovation. Metro has not done that. It should be required.

6th Circuit invalidates PUD changes

In an interesting new decision, the 6th Circuit Court of Appeals has invalidated a change in PUD regulations under Ohio law which were implemented without notice to the property owner. The lack of notice, a violation of procedural due process, prompted the court to invalidate the new regulations. Stores Wedgewood Ltd. Partnership I v. Township of Liberty, 2010 WL 2583410 (6th Cir. (Ohio) 6/28/2010)

The key to the case however, is not so much federal law as state law. "In Ohio, it is well-established that a landowner’s right to an existing zoning classification vests upon his submission of an application for a building or zoning certificate." In most states, including Tennessee, no rights vest until a permit issues and substantial construction has been completed. Thus, in a similar case in Tennessee, the local government would have time to change the zoning before substantial construction was completed, and there would be no rights vested.

Religion: River of Life Ministries v Village of Hazel Crest

There is another new interesting case concerning religious freedom, this time based on the "equal terms" provision of the federal act, RLUIPA. Take a look at my web site for a description of the religious freedom provisions and note the similarity to the TnRFRA.

This case however, involves alleged preferential treatment for non-religious activities with similar land use characteristics. A small church wanted to relocate to a new town, to a building in the commercial area of the city which does not permit noncommercial activities. The 7th Circuit in Chicago wanted to review the standard by which to judge such cases.

The original zoning ordinance authorized “[a]ll general commercial and retail uses” in the B-2 District and also enumerated the following specific permitted uses: art galleries; automobile service stations; dry-cleaning establishments and laundries; funeral parlors; gymnasiums,
health clubs, and salons; hotels and motels; laboratories; medical and dental clinics; meeting halls; newspaper offices; business, professional, and public offices; resale or secondhand stores; restaurants; taverns or cocktail lounges; and accessory uses to the foregoing permitted uses. In addition, the ordinance authorized certain “special uses” (by permit) in the B-2 District: art galleries and museums; daycare centers; schools of any kind; public libraries; parking lots and storage garages; a variety of utility and public-agency buildings; recreational buildings
and community centers; and taverns, cocktail lounges, and restaurants featuring live entertainment. The ordinance also specifically prohibited church services from being held in any “business use” building; this restriction was applicable in all business districts in the village, including the B-2 District.

After the suit was filed, the Village amended its zoning ordinance in an effort to cure the rather obvious facial violation of RLUIPA's equal-terms provision. Note to local Tennessee local governments: it is difficult to allow meetings halls, community centers, and live entertainment and disallow churches in the same district.

The amended ordinance removed certain secular assemblies from the list of permitted and special uses authorized in the B-2 District-meeting halls, art galleries, museums, schools, libraries, recreational buildings, community centers, and certain other secular assembly uses-but continued to expressly permit commercial gymnasiums, health clubs, and salons; hotels and motels; restaurants and taverns; and day-care centers (as an allowed “special use”). River of Life maintains that these remaining permitted uses are “nonreligious assemblies” within
the meaning of § 2(b)(1) of RLUIPA, and that allowing these uses in the B-2 District while excluding churches like River of Life treats religious assemblies on “less than equal terms” than “a nonreligious assembly or institution” in violation of RLUIPA.

The 3rd Circuit (in Philadelphia) ruled in another case that "a regulation will violate the Equal Terms provision only if it treats religious assemblies or institutions less well than secular assemblies or institutions that are similarly situated as to the regulatory purpose." That is, if a secular assembly is allowed and the religious assembly banned even though the two assemblies don't differ in any way material to the regulatory purpose behind the ordinance, then neutrality has been violated and equality denied. Lighthouse Institute for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 266 (3d Cir.2007).

The 11th Circuit took another approach. A zoning ordinance that permits any “assembly,” as
defined by dictionaries, to locate in a district must permit a church to locate there as well even if the only secular assemblies permitted are hospital operating theaters, bus terminals, air raid shelters, restaurants that have private dining rooms in which a book club or professional association might meet, and sports stadiums. Midrash Sephardi, Inc. v. Town of Surfside,
366 F.3d 1214, 1230-31 (11th Cir.2004).

The 7th Circuit agrees with the 3rd Circuit's test, amending it slightly to consider the ordinance in terms of its regulatory criteria, as opposed to its underlying purpose, fearful that the purpose could be difficult to construe and manipulation. The 7th Circuit suggests instead that the Court should look at the criteria of land use, traffic, parking, and others. A cynic might suggest that those are just as susceptible to manipulation as the "purpose" but the 7th Circuit clearly felt more comfortable with those criteria. Indeed, one of the concurring opinions makes exactly that point.

The permitted land use that is most like the plaintiff's is a commercial gymnasium, and that's not close enough because a commercial assembly belongs in an all-commercial district and a noncommercial assembly, secular or religious, does not.

The court ends by reminding the reader that the "substantial burden" part of the RLUIPA is not before the court, and that if that section had been before it, the result might have been different.

In a lengthy dissent, Judge Sykes first explains that both approaches are flawed (and not significantly different in any event) and then why he disagrees with the majority.

There are a couple of reasons why this analysis is flawed. First, the unmistakable implication is that comparing the excluded religious assembly to a permitted commercial-i.e., for-profit-assembly is either categorically improper or will always defeat the claim. But nothing in the text of the equal-terms provision presumptively rules out using commercial secular assemblies and institutions for equal-terms comparison just because they are commercial and therefore “belong” in a commercial district. Second, the focus on other excluded assemblies has the analysis backward. A decision method that justifies excluding religious assemblies from a zone because nonreligious assemblies are also excluded turns the equal-terms provision on its head. The equal-terms provision is a remedy against exclusionary zoning; reading it to require equality of treatment with excluded secular assemblies-rather than included secular assemblies-gives religious assemblies no remedy at all. The statute plainly requires religious-group equality with permitted secular assemblies, not excluded secular assemblies.

This is a quite interesting decision and the give and take between the majority and the dissent illustrates some of the difficulties of interpreting the federal statute. From my perspective, the 7th Circuit's idea that tax policy is a legitimate part of land use planning is suspect: land use issues should be decided on the impact of the land use on surrounding land uses, not how much tax is going to be generated by the permit. Once we begin to allow local governments to make decisions in zoning on that basis, the system is in serious trouble.

Memphis -- Union Ave United Methodist Church

In another interesting zoning matter involving a church, this one the Union Avenue United Methodist Church in Memphis, CVS has asked for approval of a site plan that would involve demolition of the church. The Land Use Control Board (basically the Memphis Planning Commission) voted 6-1 against the plan on Thursday, as reported by the Memphis Commercial Appeal. A part of the property is located in a residential zoning district. CVS has applied for approval of its site plan. The planning staff insists on moving the building up towards the street, with parking in the rear. CVS wants some parking at least on the front of the building.

The church was built in the 1920's and is on the National Register of Historic Places. From the available photos on the net, it appears to be a wonderful building (although the public comments from local residents indicate there is a division of opinion about that). Based on what I have read the building is not protected by local historic zoning. Registration on the National Register does not preclude demolition (the National Trust says CVS agreed 11 years ago not to destroy buildings on the National Register, but the federal statute doesn't prevent such demolition). And of course, as we have talked about before, the Tennessee Religious Freedom Restoration Act likely prevents the government from doing much about plans to demolish church buildings, including this one. Naturally, the CVS plans must comply with local regulations.

Often, the property owner would be better to destroy the building before sale, bypassing the historic argument and focusing on the plan. With the building still standing, the controversy expands and makes getting approval that much more difficult.

The recent case in Nashville involving the Charlotte Avenue Church of Christ involved a historic regulation that delayed demolition of the structure. That is to say, local historic zoning protected the building. In the Memphis case, this is not so. With the passage of TnRFRA, that probably is not important any more. It would likely be extremely difficult for the city to find a compelling reason to justify the demolition delay permitted by local zoning regulations.

Both cases illustrate the potential impact of TnRFRA on historic zoning: protecting older churches has become much more difficult. On the other hand, usually these churches are no longer maintained and used because the congregation has gotten older and smaller and can no longer afford to keep the building up. Perhaps a part of TnRFRA can be justified in these cases as not wanting to force small congregations to maintain buildings as eye candy for the rest of us. If the building is that significant, perhaps the city should buy it. But that's the problem: usually the cities would rather regulate than purchase. It's a whole lot cheaper to make the private owner pay the bill.

The Memphis case is a bit like a case here in Nashville several years ago. Walgreens wanted to build a new store and the corner of 30th and West End. The old Jacksonian Apartments were to be torn down to make way for the Walgreens. A variance was needed for the plan submitted but the real issue was the historic nature of the Jacksonian, although it was not covered by local historic zoning. In the end, the variance was granted, the case was appealed (Tom White and I represented Walgreens who won), and the Walgreens was built, and is now doing business. A new Jacksonian was built down the street incorporating elements of the old.

The Memphis case must still be decided by the Memphis City Council; it will be interesting to see how the vote goes.