Building Permit information via Smart Phone

In late February of this year, New York City Department of Building Safety announced that it would be providing QR codes on its building permits so that anyone walking past a construction site could obtain information related to the property and construction via smart phone. While most of this information is already available on the department website, this instant access will certainly lead to increased complaints and increased litigation. Notice the QR code in the upper right hand corner of the work permit.

It won't be long before smart phone access to such information will be available all over the country.

Joining an Original Action with the Common Law Writ

Recently, the Tennessee Court of Appeals handed down its decision in Murfreesboro v Lamar Advertising. This is an enforcement action by the city against the sign company to prevent the continued use of an electronic sign constructed illegally. Lamar had previously appealed the city order requiring discontinuation of the use of the sign; 2010 WL 1742077 (Tenn. Ct. App. April 30, 2010) perm. app. den. Dec. 7, 2010. The trial court in this enforcement action concluded that it was barred by the doctrine of prior suit pending. The Court of Appeals reversed, "The two cases do not involve the identical subject matter, and the trial court thus could not have heard the issue the City raises in its complaint or granted injunctive relief in the certiorari proceeding."

This result seems clearly correct under current law. I write today to suggest that the rule that original actions cannot be consolidated with the common law writ makes little or no sense, and has no public policy justification. In Goodwin v. Metropolitan Bd. of Health, 656 S.W.2d 383, 386-87 (Tenn. Ct. App. 1983), the Court said:

Before considering the first issue, we wish to heartily condemn that which appears to us to be a growing practice, i.e., the joinder of an appeal with an original action and the simultaneous consideration of both at the trial level. This Court is of the firm opinion that such procedure is inimical to a proper review in the lower certiorari Court and creates even greater difficulties in the Court of Appeals. The necessity of a separation of appellate review of a matter and trial of another matter ought to be self evident. In the lower Court one is reviewed under appropriate Appellate rules and the other is tried under trial rules. In this Court our scope of review is dependent upon the nature of a proceeding. In this case one matter would be limited by rules of certiorari review and the other would be reviewed under 13(d), Tennessee Rules of Appellate Procedure. Like water and oil, the two will not mix.

The problem for me is that it is not self-evident why joining a so-called original action with an appellate action is somehow difficult. These cases are tried without a jury; even if there was a jury, the court could decide the cert issue and the jury the other claims. Why is that so difficult? Under the Tort Liability Act there is often a need to try a third party to a jury and the government to the court. How different is that? It seems very similar.

Furthermore, aren't there instances where allowing such cases to proceed makes common sense? Suppose there is a zoning board decision which depends on a zoning regulation that the petitioner thinks is unconstitutional. If the petitioner thinks proof is needed to demonstrate unconstitutionality, probably he must file a separate action to challenge the constitutionality. Why not challenge the zoning board decision and the regulation in the same case. Why can't the court figure that out? It's not difficult at all. In fact several of our cases suggest that the legal standard is the same. McCallen v City of Memphis.

There is already one exception: attorneys' fees. A claim under Section 42 USC 1988 for fees can be joined under the UAPA; certainly that holding would also apply to certs. So if the court can award attorneys fees, why not other types of relief?

Writ of Certiorari

Back in August, I wrote a short note about the writ of certiorari as applied in Brundage v Cumberland County. Your can find it here. I complained then (and now) that the writ has outlived its usefuless, at least in terms of review of local government land use decisions. Actually, I have drafted a proposed bill to remove most of the hypertechnical details required in a writ of certiorari, to make review of local land use cases easier. I probably won't get it filed until next year (assuming I can find a sponsor), but it's an effort to simplify the process.

Just a few days back, I heard that the Tennessee Supreme Court has granted permission to review the Brundage case. Permission was granted on Feb 16th; it appears that the Supreme Court may weigh in on this issue. It seems an unusual case for the Court to take for review unless it wants to liberalize the appeals process under the Jackson Law. Perhaps the Court will conclude that the statutory writ is not necessary under the terms of the Jackson Law, and thereby eliminate some of the technical requirements associated with the statutory writ in appealing a local government decision under that law. Such a decision would not really have much impact on the vast majority of land use cases, and would only apply to cases arising under the Jackson Law itself, but hey, it's a start. Any small steps in the direction of making it easier to get a hearing on the merits is movement in the right direction.

We won't know what the Court has in mind until it issues its opinion, and of course, the briefs have yet to be filed. But this case should prove interesting. The decision of the Court of Appeals in the Brundage case may be found here: Brundage v Cumberland County.

Some Observations on Morikawa v ZBA of Weston

Yesterday, we discussed Morikawa v. Zoning Bd. of Appeals of Town of Weston, 126 Conn.App., 2011 WL 341683 (Conn.App.2011), a Connecticut case where the court reversed the issuance of a zoning variance based on the self-created hardship doctrine. Today, it might be useful to compare and contrast the Connecticut case with how a Tennessee court might apply Tennessee law to a similar fact pattern. there are several points I wish to make including the following: the importance of the exceptional physical features clause under the Tennessee zoning variance enabling legislation (Tenn Code Ann §13-7-207 (3)); equitable estoppel issues; and the the minimus theory of zoning variances.


Today I want to focus on the difference between the Connecticut situation and a variance under similar circumstances here in Tennessee. As I alluded to yesterday, the Connecticut variance statute does not emphasize that the undue hardship or practical difficulty must be found in some exceptional situation or condition of the property. The Tennessee statute however does make that quite clear. The hardship or difficulty must be as a result of some exceptional narrowness, shallowness, shape, topographic condition or some other situation or condition of the property. Thus, in Tennessee, the court would not need to reach the issue of self-created hardship. The lack of some exceptional physical condition of the property, different from the surrounding properties, would be sufficient to deny the variance. To be sure, the fact that the violation was created by the property owner makes it even easier, but there is, frankly, no reason to even reach that issue. In the absence of some unusual physical condition of the property, there is no grounds for a variance. The threshold issue has not been met, and there is no need to go further.

As an example, the leading case on variances here in Tennessee is McClurkan v Metro Board of Zoning Appeals, 565 S.W. 2d 495 (Tenn. App. 1977), a case where the property owner converted an existing residential dwelling to a four family residential dwelling. Unfortunately for the property owner, the building was located in a zoning district which only permitted one or two family dwellings, and was thus a violation of the local zoning regulations. While the Tennessee Court of Appeals mentions the self-created hardship, the court relied mainly upon the fact that there was no evidence of any exceptional physical feature justifying the relaxation of the zoning standards. As another example, unpublished case that I tried many years ago, Biggs v Metro Board of Zoning Appeals, the property owner had built his garage 22.5 feet from the side property line, and 25 foot side yard were required. As a result, he asked for a 2.5 foot side yard variance. While I represented the Board of Zoning Appeals, I nevertheless felt very sympathetic to the property owner’s plight. The construction of the garage inside the minimum allowed side yard had simply been in error, but to would cost a substantial amount of money and frankly not benefit anyone. Unfortunately, the property owner on that side of the applicants property, opposed issuing the variance, and the zoning board found no justification for granting a variance. The case ultimately wound up before the Tennessee Court of Appeals, and again, while I was fairly sheepish about representing the board on such a minor deviation from the law, the law of variances in Tennessee is very clear, and there was no way to justify any variance in the fact that the zoning board had not granted one made even easier. The courts defer to the decision of the board and refused to reverse.

The Connecticut court did briefly discuss siting issues and topographic issues but it dismissed those indicating that they were clearly not sufficient to justify the variance. It is unclear why: based on the case, my best guess is that those issues were not dissimilar from other properties in the surrounding vicinity and there was therefore no exceptional physical feature justifying a variance. Again, that most likely would’ve been the end of it in Tennessee.

Two other quick notes are worthy of mention. First, the applicant for the variance argued just up to the edge of an estoppel, but then backed away, evidently based on the fact that Connecticut follows the majority rule, and then estoppel against the building official does not accomplish anything. To be more specific, the applicant argued that the building code official should have discovered the violation of the 35 foot height regulation long before he actually discovered it. Possibly during construction, although it’s not entirely clear what the homeowner’s argument was. If the building code official had discovered the violation during construction, perhaps it could have been corrected before the building was completed, that significantly less cost to the homeowner. Therefore, the homeowner try to argue that the building code official’s failure to discover the violation caused the hardship in some respect. The difficulty here is that the majority rule across the United States, recognized here in Tennessee is well, is that to the extent that there is a violation of building or zoning law, the property owner gains nothing from the failure of the building code official to properly enforce the requirements. The policy reasons for this is that otherwise any mistake by the building code official would work a zoning change or change the building code. And that would be done without a vote of the local legislative body. In other words, the local building code official or zoning administrator would buy Fiat be able to change the requirements of the code. The majority rule across the United States is that this cannot happen. There is no estoppel against the local government based on the actions of the building code official in most circumstances. That is especially true where there is a violation of the law.

Finally, one other quick note. The homeowner also argued that the violation of 2'7" was de minimus and that no showing of any unusual or exceptional physical feature was necessary. The problem of course is that Connecticut law does not recognize de minimus variances, for lack of a better term. Without enabling legislation to specifically authorize such actions, the board had no power or authority to grant in the absence of an exceptional physical feature of the land.

However, it is worth considering the idea of de minimus variances. The plight of the homeowner in the situation is not uncommon; assuming that there was no intentional violation of the law (and one could argue here that perhaps there was based on the fact that the original plans showed a 38 foot tall roof, and at the end of construction, although the plans had been revised, the roof stood at just under 38 feet tall), there can always be some minor violation just because of simple measuring mistakes and other errors. Does society benefit by requiring a property owner to go to great lengths and significant expense to correct a fairly minor violation of the law? From my perspective, the answer is no. It would be well worth having a provision within the Tennessee variance enabling legislation allowing the zoning board to grant a de minimus variance (perhaps we should call it something else, and I’ll suggest the term minor adjustment) where the applicant did not intentionally create the violation, and the violation itself is no more than 10 or 15% of the permitted zoning regulations.

So for example, in the case of the 35 foot height regulation in Connecticut, so long as the property owner did not exceed the height regulation by more than 3.5 feet, the zoning board could grant the minor adjustment without a demonstration that there is any exceptional physical feature justifying that decision. There are several problems with this approach unfortunately. First, property owners may come to feel that they are entitled to the 10 or 15% adjustment. Second, in terms of larger variances where exceptional physical features must be demonstrated, the fact that a 10 or 15% variance can be granted for no reason whatsoever, would encourage applicants to ask for even greater amounts for particular projects. And those requests might seem justified given the fact that the legislature has seemingly given its blessing to a 10 or 15% variance without any particular demonstration of hardship.

On balance, it seems to me that the minor adjustment theory is worthwhile and would make a reasonable and legitimate extension of the powers of municipal zoning boards. It would be interesting to review a large set of variance requests, say from the city of Nashville, to see how many cases involve relatively minor variances where this kind of mistake was responsible for the requested relief. My guess is that a fairly significant quantity of zoning variance cases come about in just this way. And so long as the relief granted is relatively minor, and does no harm to the fabric of zoning protection in the neighborhood overall, it would not seem to be against public policy to allow the zoning board to grant such minor adjustments.

Self-Created Hardship in Connecticutt . . . and Tennessee

In an interesting self-created hardship case from Connecticut, an error made by the builder's architect was attributed to the homeowner and disqualified him from obtaining a variance under Connecticut law. In Morikawa v. Zoning Bd. of Appeals of Town of Weston, 126 Conn.App., 2011 WL 341683 (Conn.App.2011), an application for a building permit for a single-family residence was submitted to the Codes Department. The plans were reviewed but rejected because the height of the home was 38 feet, and the zoning ordinance only permitted a maximum height of 35 feet, a not uncommon requirement in many smaller towns and cities.

The building plans were revised and resubmitted and a building permit was issued. At a later time, after the construction was completed, while making an inspection concerning an unrelated issue, the codes enforcement officer noticed that the height of the roof appeared to be over the the maximum. Upon closer inspection, the roof height was 37 feet, 7 inches. Since this was a clear violation of the zoning regulations, the codes enforcement officer issued a cease-and-desist order requiring that the homeowners and bring the property into compliance.

Not surprisingly, the homeowner appeal to the local zoning board. Although the board believed that the cease-and-desist order was issued appropriately, it invited the homeowner to apply for a variance which it suggested it might be inclined to grant based on the fact that there was such a small violation of no apparent harm done to neighboring properties. As a result, an application for a variance was filed.

I certainly cannot claim to be any expert on Connecticut land use law, but a quick review indicates that Connecticut, unlike Tennessee, does not have the Alfred Bettman modified variance provision. That is, Bettman drafted language which rooted variance applications in exceptional physical features of the land, such as exceptional narrowness, shallowness, shape, or topographic conditions. The Connecticut statute is more general following the pattern which is probably the majority rule across the United States, and allows a zoning board to grant variances from zoning ordinances or regulations with respect to a parcel of land when “owing to conditions especially affecting such parcel but not affecting generally the [zoning] district in which it is situated, a literal enforcement of such bylaws, ordinances or regulations would result in exceptional difficulty or unusual hardship…”  CGS § 8-6. More about this later.

The defendants submitted three justifications for the variance sought: (1) the defendants relied on independent contractors, an architect and builders who did not check periodically the height of the roof against the plans during construction; (2) the code enforcement officer negligently failed to monitor the construction periodically; and (3) the excess height would not affect the surrounding areas, as the house is set back from the street and the land to the rear of the house is owned by a land trust.

The zoning board granted a variance based on a "de minimis" theory of exceptional hardship. That is, the 2'7" by which the building height exceeded the zoning regulations maximum height was so small that it really was not worthy of enforcement. As a result, the variance was granted.

A neighboring property owner filed an appeal, and one review the trial court reversed. The trial court concluded that there was no theory upon which the board of zoning appeals could grant a variance because the resulting violation was only the minimus. The court found that the difficulty occurred because the contractor looked at the wrong plans. The homeowner maintains that the problem occurred because, although the architect adjusted the height of the roof in the revised plans, he failed to adjust its pitch. Either way, the trial court found that the error was attributable to the homeowner and therefore self-created. One wonders if there was not an underlying thought that the architect revised the plans but that the construction deliberately ignored those revisions based on the wishes of the homeowner. There is no discussion of this anywhere in the Court of Appeals decision, but frankly, having worked in this field for years, it's a bit hard to shake that feeling in the back of your mind that the homeowner was simply trying to get away with something here.

The case was appealed to the Connecticut Court of Appeals:

we conclude that the errors of the architect and/or general contractor that resulted in the roof exceeding the thirty-five foot height requirement are attributable to the defendants because the voluntary acts of those persons were on behalf of the ones whom the variance would benefit. Thus, the hardship claimed is self-created. Moreover, although we can appreciate the plight of the defendants, who relied on the work of the professionals that they hired, we have stated that “[p]ersonal hardships, regardless of how compelling or how far beyond the control of the individual applicant, do not provide sufficient grounds for the granting of a variance . . .  [T]he basic zoning principle that zoning regulations must directly affect land, not the owners of land . . .  limits the ability of zoning boards to act for personal rather than principled reasons, particularly in the context of variances.”

The homeowner argued for a “de minimis” deviation exception that would obviate the need for the homeowners to prove hardship but the court declined to do so. The authority of a zoning board of appeals to grant a variance is controlled by statute, and § 8-6(a)(3) does not allow a variance unless the applicant proves that there is an “exceptional difficulty or unusual hardship.” See Moon v. Zoning Board of Appeals, supra, 291 Conn. at 24 (“[p]roof of exceptional difficulty or unusual hardship is absolutely necessary as a condition precedent to the granting of a zoning variance). 

There are several interesting aspects of this case which I would like to discuss in the context of Tennessee land use planning law. We'll take a look at those issues tomorrow.