Lack of Findings by Planning Comm: Constitutional Violation!

In an interesting new case from Idaho, the Idaho Supreme Court concluded that the failure of the Zoning Commission (this involves a subdivision application, so this is a planning commission under Tennessee law) to make express findings of fact and conclusions of law sufficient to enable judicial review, was a violation of procedural due process of the neighbors who appealed the decision granting the subdivision approval. The case, Jasso v. Camas Ctny., 2011 WL 5299710 (Idaho 11/02/11), is an interesting illustration of a constitutional violation where the administrative tribunal failed to follow statutory requirements. By the Way, Tennessee has similar statutory requirements for planning commissions requiring findings of fact, although not for zoning boards.

This case suggests that if a neighbor files suit based at least in part on a failure of the administrative tribunal to make findings of fact and conclusions of law, that there might be a constitutional violation, and under Tennessee law, not only might you be able to obtain attorneys fees under the Tennessee Equal Access to Justice Act, TCA §29-37-101 et seq., but in addition, you might be able to sue under the Federal Civil Rights Attorneys Fees Act, 42 USC §1988.

Parking Trailers on Commercial Property

An issue which frequently comes up in codes enforcement cases involves the legality of restrictions on parking commercial vehicles, including tractor trailers, on property whether it be zoned residential or commercial. In a case decided last Monday, the Tennessee Court of Appeals concluded that a regulation of the Town of Smyrna precluded the use of tractor trailers as a means of storing furniture on-site at a local furniture store. Town of Smyrna v Bell, (Tenn App 2011).

The property owner evidently had been storing inventory on-site for his store in tractor trailers for many years, predating the local zoning regulations. The town however had a regulation which required:

In any commercial zone, tractor trucks, whether the cab alone or with a trailer attached, tractor trailers, including trailers and semi-trailers, whether empty or loaded, not attached to a truck or tractor truck, which are not being used for or engaging in normal loading or unloading purposes, or for activities directly associated with normal trucking operations, shall not be parked or stored on a lot unless they are located in a completely enclosed space, which enclosed space shall include a roof, or are located behind the front setback line created by the building closest to the street right-of-way and unless such tractor trucks or tractor trailers are located behind a completely opaque fence.

Interestingly, this regulation was not a part of the zoning regulations, but was instead found in the section of the local municipal code which regulated motor vehicles, traffic, and parking. Notwithstanding that, Mr. Bell contended that since he had been using tractor trailers for the storage activities many years prior to the adoption of the regulation, that the provisions of the Tennessee Non-Conforming Property Act, Tenn. Code Ann. § 13-7-208, applied and protected him from the enforcement of these provisions.

The trial court ruled in favor of the property owner, finding that the trailers were a necessary part of the business and protected under the Non-Conforming Property Act. On appeal, the Tennessee Court of Appeals reversed. The court first noted that not every regulation of activities on private property was a zoning regulation. The Tennessee Non-Conforming Property Act however only applies to zoning regulations and as a result, the property owner is only protected to the extent that the regulation at issue is a zoning regulation.

In the case of Cherokee Country Club v. City of Knoxville, 152 S.W.2d 466 (Tenn. 2004) the Tennessee Supreme Court acknowledged that a municipality’s police power enables it to enact regulations concerning the health, safety and welfare of the community without following the strict planning, notice, hearing and review requirements that must accompany its exercise of its zoning powers. It also recognized that under certain circumstances an enactment that is  ostensibly unrelated to zoning matters may constitute zoning by other means. The court  cautioned that “[a] municipality must not ‘evade the protections thrown about the citizen’s use of his property by the device of labeling a zoning act a mere exercise of police power.’” Cherokee Country Club v. City of Knoxville, 152 S.W.2d at 471-72.

In order to make the determination, the Supreme Court held that in order for the regulation to be deemed a zoning regulation subject to the protections of the Non-Conforming Property Act, the regulation must substantially interfere with the use of the land. This is a determination that turns largely on the facts of each case. In this case, the Tennessee Court of Appeals concluded that this regulation did not substantially interfere with the use of the property as a furniture store.

The court noted that there was no evidence that using tractor trailers as storage units was an inherent or necessary trade practice in the furniture industry, and although the owner testified that enforcement of this regulation would put him out of business, there was no evidence supporting that conclusion. On the other hand:

While the enforcement of the ordinance may affect to some degree the method through which Mr. Bell conducts his business, it is undisputed that the town of Smyrna has no objection to his continuing operation of a furniture store on his property. It simply wants him to comply with an ordinance that applies by its terms to all existing businesses in a commercial zone, and, the town is not expressly seeking the removal of the trailers per se. Mr. Bell can comply with the ordinance by moving the trailers behind the property setbacks and enclosing them within an opaque fence. In the alternative, he can remove them and store his excess furniture at some other location.

As a result, the Tennessee Court of Appeals reversed the decision of the trial court. The local regulation precluding the use of storage trailers on commercial property is enforceable, and the Tennessee Non-Conforming Property Act offers no shield from the enforcement of those code provisions.

Ready Mix v Jefferson County: S Ct accepts case for appeal

we have discussed this case previously, when the Tennessee Court of Appeals rendered its decision. See
http://tnzoning.blogspot.com/2011/08/exhaustion-of-administrative-remedies.html

My analysis at the time suggested that the decision of the Court of Appeals was consistent with previous appellate court decisions, but that those cases were decided incorrectly. I suggested that in cases where the land owner relied upon state statutory provisions such as Tenn Code Ann §13-7-208, it is inappropriate for a zoning board to be making a ruling on what is a matter of state statutory interpretation. Certainly, the local zoning board has the power and authority to interpret and construe the provisions of its own local zoning regulations. But that power and authority does not extend to state statutory law; it seems to me, that the judiciary should solely construe those provisions so that they remain reasonably uniform from Johnson City in the East to Memphis in the West.

I also indicated in that previous post, but I felt that it was unlikely that any court would so hold. I believed that the sheer weight of precedent would prevent the court from heading in another direction.

Well, the Tennessee Supreme Court has granted permission to appeal in this case, and maybe the Supreme Court is getting ready to head in another direction. It seems most logical that the court would grant permission to appeal only if there was some significant chance that it disagreed with the opinion below. This should be an interesting determination by the Supreme Court, and it continues the trend over the last several years which the current court has set, hearing more zoning and land use cases and providing answers for issues that up to now we have only been able to debate academically.

Questions of Standing

In an interesting case for Massachusetts, the court dealt with the issue of standing to challenge the decision by the board of zoning appeals. In Massachusetts,

Certain “parties in interest,” as defined under G.L. c. 40A, § 11, are entitled to a presumption of standing as “persons aggrieved,” including (1) abutters, (2) property owners directly opposite the locus (i.e., directly across the street from), and (3) abutters to abutters within three hundred feet of the property line of the Locus. “[T]hose entitled to notice of the proceedings are presumed to have the requisite interest” under G.L. c. 40A and thus enjoy a rebuttable presumption that they are “persons aggrieved.”

The plaintiffs in this case indicated that they were "adjacent abutters." The court concluded that the presumption of standing was adequately rebutted by the applicant and the zoning board, and the burden of production and persuasion then shifted back to the neighbors to demonstrate that they were in some way aggrieved by the decision of the zoning board.

In this case, the plaintiffs hired a traffic engineer to demonstrate that the additional traffic would cause harm to their properties. However, the traffic engineer testified that the increased traffic would only be seven additional trips per day (10 trips per residential household, 17 trips for this elderly care facility). The court concluded that there was insufficient aggrievement for the plan is to have standing and dismissed the case.
Nihtila v. City of Brockton Zoning Bd. of Appeals, 2011 WL 3925596.

In Tennessee, I would suggest that the standing rules at least with regard to certain petitions are more liberal. For example, in Citizens for Collierville v Town of Collierville, 977 S.W. 2d 321 (Tenn App 1998), an allegation that the representative members of a local nonprofit Corporation lived within 2000 feet of the proposed development was accepted as sufficient for standing. in another interesting case, McCrae v Knox County, 2004 WL 1056669 (Tenn. App. 2004), the court accepted as sufficient allegations of "a diminution in the value of their property and loss of use and enjoyment due to the obstruction of their view of the Holston River and glaring lighting allegedly caused by the billboards." 

Because no proof is actually permitted under the terms of the common law writ of certiorari, to the extent that proof of standing is going to be admitted, it should be admitted before the local administrative tribunal. It is not been admitted there, then probably the issue of standing is been waived in any event.

From my perspective, it is far better for the courts to be somewhat relaxed on this issue so long as the neighborhood challengers live reasonably close to the proposed development. One of the reasons that standing should be liberally granted is because many zoning boards frequently blithely ignore the zoning regulations and the State enabling statutes in granting approvals for construction projects. In the McCrae case cited above, the board granted a variance which was clearly illegal. If the neighborhood challengers lacks standing, the clearly illegal decision of the zoning board would have stood. Liberal rules of standing allow neighbors to challenge governmental decisions which many times in the case of local zoning and planning commissions are suspect. If the courts restrict standing, many of these cases where the boards have granted developmental rights illegally will never be overturned.

Telephonic presence at the hearing?

I'm sure it's just a matter of time, but since I began practicing law, I can't remember a situation where a zoning board member attended the zoning hearing by telephone. In a recent case from Maryland,challengers to a nonconforming use argued that the failure of one of the board members to physically attend the meeting and his participation solely by speakerphone was in violation of the state Open Public Meetings Act.The Maryland court rejected the argument. The court found that there was nothing in the Open Public Meetings Act that rendered telephonic participation illegal, and that since the other members of the board, and the other attendees at the hearing could hear the board member through the speakerphone and a board member could hear them through the speakerphone, there was no apparent violation. Tuzeer v Yim, 2011 WL 4537172 (Md Ct Sp App 2011).


The Tennessee Open Public Meetings Act, TCA §8-44-101 et seq., appears to permit participation by telephonic communication. At least there is no prohibition of attendance by conference call.


TCA §8-44-108 does limit participation by electronic or other means, but that section applies only to state government and not to local land use boards and commissions. It would seem, that to the extent that reasonable precautions are taken, telephonic or physiographic participation by board members should be appropriate.


However, the staff of the zoning board or planning commission should be prepared to make certain adjustments so that the physically absent board member has all of the documents that are available to those members present at the hearing. Furthermore, to the extent that new documents are presented by the parties to the hearings, those documents should at the very least be described to the physically absent board member so that the importance and significance of the documents can be evaluated. Certainly it would be better for the absent board member to participate by video graphic means so that he or she could see the documents on camera.


Finally, it is very common in Tennessee for the staff to make short presentations concerning upcoming hearings by way of setting the stage for the ultimate decision. Those kinds of presentations or recommendations should certainly all be submitted to the absent board member so that he or she can review those even though not physically present at the hearing.


By following those simple guidelines, it would seem that electronic participation should present no obstacle to decisions by local zoning boards and planning commissions. Perhaps however it is just simpler to have a couple of alternate members who can substitute if one or more of the board members has to miss a meeting. Certainly it seems much easier in the long run.


I might add, that although there is little or no authority for alternate members in local land use boards and commissions, it seems very likely that any court called upon to determine the legality of such alternative members would conclude that there's nothing inappropriate about them.