A Man and His Potty

The old expression, “Beauty is in the eye of the beholder,” certainly applies in the context of code enforcement proceedings. In Oak Ridge, a week or so ago, a local homeowner named William Terry, was cited to court for a code violation because he had a planter made out of an old toilet filled with plants and potting soil. Terry contends that the toilet is an antique and a good way to recycle materials which would otherwise wind up in the landfill. City codes officials (and presumably some of his neighbors) seem to disagree. Katherine Baldwin, the city director of community development, said that “toilets are not something that people typically like to look at.” She said the city had launched a campaign to clean up unsightly areas.

The city officials and Mr. Terry squabbled over dictionary definitions of rubbish and toilets. The city attorney pointed out that according to Webster’s dictionary, a toilet is not a flower pot. Mr. Terry responded by pointing out that it didn’t fit the definition of rubbish either because it had been recycled and was not useless waste. The city judge observed that the codes enforcement officials always brought him interesting cases.

A week or two after the hearing in city court, the city judge ruled in favor of Mr. Terry, concluding that the city’s definition of “rubbish,” was so broad as to encompass virtually all types of planters within the city. As a result, finding that the definition was overbroad, the city judge ruled that Mr. Terry could keep his garden potty.

Mr. Terry said he was surprised at the amount of publicity his case received. Now, he said, "I might get two toilets and put them beside what you could call my driveway.''

Click here to  see Mr. Terry stating his case from the Knoxville News Journal.

Who do you sue?

An interesting question which frequently comes up in land use planning litigation involves the identity of the proper governmental respondents to name in a petition for writ of certiorari. When I began practicing law some 30 years ago, the common method was to file against the members of the municipal board of zoning appeals, naming and serving each member individually. I have always assumed that the attorneys preparing these petitions felt that there was no power to sue or be sued in municipal or county zoning boards, and as a result, without that express power, a suit against the zoning board itself was in essence a suit against no one. For example, you could not sue the Metropolitan Police Department; it does not exist as anything other than a subsidiary of Metro Nashville.

Presumably, the same analysis would apply to a municipal or county board of zoning appeals. There is no power given to the board to sue or be sued. In a recent case from Wisconsin, Acevedo v. City of Kenosha, and City of Kenosha Zoning Board of Appeals, 2011 WI APP 10, this issue was squarely presented. The petitioner originally sued only the city, but when a motion to dismiss was interposed, the petitioner added the board of zoning appeals.

The court characterized the issue as whether the city was the proper party for a writ of certiorari challenging a decision of the board. The city’s position was that the petition cannot compel any action from the city, and as such, failed to state a claim against the city. The petitioner pointed out that old number of cases decided by the Wisconsin courts named only the municipality as a defendant challenging decisions of boards created by those municipalities. The Wisconsin Court of Appeals agreed that a number of lawsuits had been so filed, but distinguished those cases on the basis that this issue had not been raised and as a result there was no reason to rule on it at that time.

The court noted that WIS. STAT. § 68.13(1), a part of the Wisconsin certiorari provision, was of little help to the petitioner:

Any party to a proceeding resulting in a final determination may seek review thereof by certiorari within 30 days of receipt of the final determination. The court may affirm or reverse the final determination, or remand to the decision maker for further proceedings consistent with the court’s decision.

The court pointed out, that the language concerning a remand to the decision maker, clearly implies that the board or other administrative agency was the proper respondent. The court dismissed the city as a respondent. There was no discussion concerning whether the boards in Wisconsin had the power to sue or be sued and what that might mean for naming of proper respondents.

So what does this tell us about Tennessee? The right of review pursuant to certiorari in Tennessee is controlled by Tenn. Code Ann. § 27-9-101 which provides:

Anyone who may be aggrieved by any final order or judgment of any board or commission functioning under the laws of the state may have the order or judgment reviewed by the courts, where not otherwise specifically provided, in the manner provided by this chapter.

Note the similarity between this part of the Tennessee certiorari process and the Wisconsin statute quoted above. Tennessee provides further. Tenn. Code Ann. § 27-9-104 specifically addresses the “defendants” to be named in the petition. That section provides as follows:

The petition shall be addressed to the presiding Chancellor and shall name as defendants the particular board or commission and such other parties of record, if such, as were involved in the hearing before the border commission, and who do not join as petitioners.

This provision of  Tennessee law seems to settle the issue definitively. But does it? If the board or commission under Dillon’s Rule, lacks the power to sue or be sued, then can petitioner sue what is essentially a nonexistent board, commission, or agency? In fact, in essence, even if the court allows a lawsuit to proceed against a zoning board named all by itself, who does the attorney filing the lawsuit serve? Is the attorney for the city authorized to accept service? There is no statute or rule of law which provides for such service. Certainly, Rule 4.04 (7)  of the Tennessee Rules of Civil Procedure specifically allows service upon a County by delivering a copy of the summons and complaint to the chief executive officer of the county. Similarly, Rule 4.04 (8) allows service upon a municipality by delivering a copy of the summons and complaint to the chief executive officer or the city attorney. But there is nothing in the Tennessee Rules of Civil Procedure with regard to how you obtain service on a county or municipal board of zoning appeals if the County or city themselves are not proper parties.

Bolstering this argument somewhat is Rule 4.04 (6) which expressly provides for service of process upon the state of Tennessee or “any agency thereof,” by serving the Attorney General. Notice that the agencies of the state can be sued and served by service through the Attorney General. There is no similar provision for service on county or municipal agencies, boards, or commissions. So the question remains here in Tennessee, if you must sue the board of zoning appeals alone, how do you obtain service other than by suing each individual member, which seems anachronistic and, dare I say it, idiotic.

Well, as you can tell, I’ve given some thought to this matter over the years. It’s not clear to me why. When you play with zoning issues as much as I do in your practice, your mind seems to just conjure up these issues that frankly, nobody else in the civilized world really cares about. Having said that, it seems to me that there is a simple solution, and it is the one that I employ in all my zoning and land use litigation.

I simply name the city or county, and then tack on the words “acting by and through its Board of Zoning Appeals.” Such as, for example, “Metropolitan Government of Nashville and Davidson County, acting by and through its Board of Zoning Appeals.” Let’s assume for a moment that this strategy of actually suing the city or county is incorrect. Assume further, that the city or county moves to dismiss the petition based on a failure to name the correct parties. While it is certainly true that the Tennessee appellate courts have over the last 10 or 15 years developed hypertechnical requirements for filing petitions for writ of certiorari here in Tennessee, I simply cannot believe that any trial or appellate court would find that this manner of naming the city or county, acting by and through its board of zoning appeals, inappropriate. Even if I’m wrong, and the city or county should not be named, I think the court would allow the petitioner to amend the pleading. Furthermore, since the petition in almost all cases is served on the city or county attorney, and since in almost all cases of which I’m aware, the city or county attorney either defends or refers the defense of the administrative agency out to a private attorney, under the relation back doctrine of Rule 15.03 of the Tennessee Rules of Civil Procedure, the amendment changing the defendant from my designation, to a simpler designation of the Columbia Board of Zoning Appeals, should protect the petitioners right to proceed with the case even after the amendment. That is to say, one would expect that the Tennessee courts would allow the relation back of the amendment changing the name of the respondent to the time of the filing of the original petition, so as to avoid the expiration of the 60 day stature of limitations. The statute is of course jurisdictional; but again my feeling is that the court would certainly allow that relation back.

One final point might be in order here. In some cases, some municipal planning commissions have the power to contract and as a result, I assume the power to sue and be sued. Certainly, if the planning commission can enter into a binding contract with its executive director for the provision of planning services, one would assume that the executive director could sue the planning commission for breach of the contract without the necessity of naming the municipality itself. Under those circumstances, it seems to me that the planning commission itself may be the proper respondent in a certiorari proceeding here in Tennessee without the necessity of also naming the municipal government. I don’t know how many planning commissions are out there which have those kinds of powers, but the Metro Planning Commission certainly does have that power by virtue of the Metro Charter § 11.504 (a) & (b). Out of an abundance of precaution, when I sue the Metro Planning Commission, I nevertheless use the same formulation: Metropolitan Government of Nashville and Davidson County, acting by and through the Metropolitan Planning Commission. But it may not be necessary.

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.