A legally existing use of land . . .

Abbington Center v Town of Collierville, Tennessee Court of Appeals, filed on February 13, 2012, is a good example of the requirement that a legally nonconforming use demonstrate that it was established legally before the effective date of the zoning ordinance. For example, if you don’t have the required permits from the city, such as for example, a business license and/or a zoning permit, and possibly others, as well as any state permits that might also be required, the use of the property may not have been legally established, and is therefore not protected by the Tennessee Non-Conforming Property Act, Tenn. Code Ann. § 13-7-208. In this case, the failure to have the municipal permits prevents the application of the protections of the act.

No one disputed that the two billboards at issue were constructed in 1979 before the town of Collierville prohibited additional billboards. The problem was that no one could find the municipal permits demonstrating that they were legal at the time of construction. In 1993, the current owner purchased the billboards and began looking into the question as to whether or not they could be destroyed and then reconstructed under Tenn. Code Ann. § 13-7-208 (d). Originally, the new owner received assurances from the town that the billboards were legally nonconforming. After approval by the design review commission, the signs were destroyed, and construction was begun on two new signs to replace the old ones.

However, the sign owner failed to get a permit and a stop work order was posted. When the owner applied for permits, they were denied, with the town now saying that the signs were not nonconforming under §208. The owner appealed to the board of zoning appeals, which held against the owner, and on appeal to Chancery Court, there was a remand with a second hearing before the board of zoning appeals with the same result.

Once again, the owner went to Chancery Court, and this time the court reversed the decision of the board of zoning appeals. The Tennessee Court of Appeals in this case reverses the decision of the Chancery Court, and reinstates the decision of the Board of Zoning Appeals.

The difficulty in this case for the owner of the billboards is the extremely narrow scope of judicial review under the common law writ of certiorari. Since the court cannot substitute its judgment for that of the zoning board, that means that if the zoning board weighs the evidence in a way that might not seem quite appropriate, the court is nevertheless restrained from reversing as long as there’s some reasonable grounds upon which the decision of the board may be upheld.

In this case, there was almost a total dearth of proof concerning the issuance of any municipal permits for the signs. This is perhaps to be expected, since the signs were constructed originally over 30 years before the decision. The only real evidence of any municipal permit having been issued, was given by the owner/general manager of the sign company who owned the signs at the time of the original construction. He testified that he was aware that municipal permits had been issued. Unfortunately, the difficulty with his testimony was that it was based on a contingency fee arrangement with the current owner of the billboards. The former owner would testify, and if the permits were issued, he would receive $5000 for his testimony. If the permits were not issued, he would receive nothing.

While evidently the current owner of the billboards corrected this and simply paid him the $5000 at a later date, this was not until after he is sworn testimony was taken. Most of the members of the board of zoning appeals found his testimony to be suspect as a result and since his testimony was the only testimony related to the issuance of an actual municipal permit, if his testimony is discarded, there was no basis upon which to conclude that the proper permits had been obtained prior to the original construction of the billboards.

As a result, the board of zoning appeals denied the appeal, and the Tennessee Court of Appeals was in a position where it could not reinstate the testimony of the former owner because that essentially would amount to weighing the evidence.

It may be a better option in these kinds of cases to allow the appeal on a de novo basis before the trial court. In essence, a nonconforming property is something like a species of property right, and it certainly seems as though a court of law should have the last say in those types of cases, unfettered by the restrictions found in the common law writ of certiorari.

Legislation would be necessary to work this kind of a change although there is certainly some common law authority for arguing that the statutory writ of certiorari would apply to these kinds of cases. Judge Ben Cantrell’s landmark law review article in the University of Memphis law review, back in the early 70's established that. But so far as I know, no Tennessee court has actually reviewed the issue as to whether or not a statutory writ of certiorari would apply. Several cases have certainly indicated that the appeal is pursuant to the common law writ of certiorari, but usually without consideration of the statutory writ.

Distinguish these kinds of cases where there is a property right from an application for a variance or even a conditional use permit. When you apply for a variance, you are basically asking for special relief because of some hardship found on the property. When you apply for a conditional use permit, you’re asking for a new use based on your compliance with certain restrictions. Both of those cases certainly get reviewed under the common law writ of certiorari. These types of cases however do not involve pre-existing uses of the property.

On the other hand, a nonconforming property is as I mentioned above, a species of property right. Arguably, the owner has a property right which may be taken away if the local administrative body makes the wrong decision. Under those circumstances, where there is arguably a pre-existing property right, a hearing de novo in court should be permitted/required, where the court makes a final decision about the weight of the evidence.

Bear in mind, that opening this up to a trial de novo in the court changes the arguments up in the court room itself as well. I’ve been practicing almost 35 years in this area of the law, and I’ve had this argument in the back of my mind for virtually all of those 35 years. But when push comes to shove, and a final decision has to be made about the kinds of allegations to make in an appeal to the court of law, I have always felt better with the common law writ of certiorari in my cases. Obviously, if the owner of the nonconforming property prevails before the board of zoning appeals, it is almost always better to allow the decision pursuant to the common law writ (obviously, if my client won below, he is a respondent and he does not file the petition; he just responds to the neighbor’s petiton). In that way, there is an astoundingly high chance that the trial court will uphold the decision of the board of zoning appeals.

On the other hand, if I have lost before the zoning board, and I think I have an opportunity to win in the trial court, I have been usually involved in cases where I thought that the other side might have a better argument in a trial de novo and that appealing pursuant to the common law writ actually would suit my clients purposes better. Usually there has been some technical legal argument that I could make that I felt would reverse the board and get my client’s position upheld.

By way of an example, within the last two or three years, the Ransom School case was decided. It is not a nonconforming property, but a historic zoning matter. However, under the statutes, the appeal can up under the statutory writ of certiorari, just as I am arguing a nonconforming property case may. Before the appeal was made from the local historic zoning commission, I spoke with Tom White who was handling the case, and the decision was made to appeal under the common law writ of certiorari. Tom ultimately felt that the statutory writ would allow the city to put on more proof and that ultimately the city’s proof might actually be better. So a strategic decision was made to go with the common law writ of certiorari.

My guess is that over the next five years or so, legislation changing this may be passed. But until that time arrives, keeping in mind that the statutory writ of certiorari may be available is certainly a valid idea.

The Metro Nashville "chicken bill"

Metro Council Bill 2011-47 is an interesting bill allowing chickens to be raised within the county (general services district) in certain zoning districts if 5 acres or more in size. if you run a search on Google, you'll find quite a number of articles concerning this issue.

The chickens are permitted in agricultural districts and accessory in residential districts. It appears that if the lot has more than 5 acres, the number of hands is unlimited, but otherwise there is a maximum number permitted of two hands for the first 5009 square feet, four hens for a lot of 10,236 square feet, and 6 hens for a lot of 10,237 square feet or more.

There are several other requirements which must be met concerning the maintenance of the chickens. It certainly will be interesting to see how this new provision fits in an urban zoning classification scheme.

Stumblin', bumblin, mumblin . . . air conditioning unit?

The Tennessee Court of Appeals recently decided one of those petty neighborhood disputes that so often arise out of alleged codes infractions. In Pearson v Ross (Tenn App Dec 28, 2011), Pearson sued Ross for nuisance arising out of the noise made by his air-conditioning unit.the two homes were constructed in a zero lot line residential development, and were only 7 feet apart. The placement of the air-conditioning unit was directly outside the bedroom of the plaintiff. She complained that it was extremely noisy and winds up suing her neighbor for nuisance.

The plaintiff evidently complained to the Shelby County Codes Department, but got no help from them. There was testimony at the trial (at which the defendant represented himself) that Ms. Pearson was overly sensitive to noise, and frankly not very considerate of her neighbors in any case. For example, a neighbor testified that Pearson complained constantly about perceived problems with her small dog barking inside her home or how her grass was cut, and repeatedly reported her to the police and submitted a complaint
to the environmental court about the dog barking in her home. After a hearing, she said, the judge of the environmental court told Pearson she had unusually sensitive hearing. Prior to Pearson moving into the neighborhood, the neighbor said, all of the neighbors would socialize in their yards and be friendly; this changed after Pearson moved in, put up “no trespassing” signs in her yard, and put cameras in her windows to record the activities outside. After living in the neighborhood for eight years, the neighbor testified, once Pearson moved into the neighborhood, the neighbor sold her home for less than it was worth in order
to move away from Pearson.

As any experienced attorney can tell, a lot of hearsay testimony which was likely inadmissible was not objected to by either party. The trial court finally concluded that the plaintiff was indeed overly sensitive to the noise, denied relief and dismissed the case.

On appeal, the plaintiff argued that the evidence was improperly admitted, but the Court of Appeals noted that there had not been any objection, and so the evidence was properly admitted because of the lack of objection.

The Court of Appeals noted that  noise is not a nuisance per se because “no one is entitled to absolute quiet in the enjoyment of his property.” Lawful activities are not to be adversely affected “on account of every trifling or imaginary annoyance, such as might offend the taste or disturb the nerves of a fastidious or over refined person.” In order to be considered a nuisance, “noise must be so excessive that it is unreasonable in light of all the circumstances and must cause injury to the health and comfort of ordinary persons in the vicinity.”  The determination of whether a particular noise constitutes a nuisance should not be based on the subjective sensitivities of particular plaintiffs, but rather on an objective standard based on reasonableness.

“Whether a particular noise is sufficiently excessive to constitute a nuisance is ordinarily a question of degree and locality—in essence a question of fact to be considered in light of all the attending circumstances.”

The court noted that the trial court heard all the witnesses and concluded that the plaintiff was overly sensitive to the noise. The Court of Appeals found nothing in the record which would require a different conclusion.

This is an interesting case that serves once again to demonstrate that first nuisance law is not effective for the adjustment of neighborhood concerns ordinarily, and second, that not every wrong has a remedy.

Judicial Review of Jackson Law Decisions

The Tennessee Supreme Court yesterday issued its decision in Brundage v Cumberland County, concluding that review of a decision made pursuant to the Jackson law, Tenn. Code Ann. §§ 68-211-701 to 707, may be obtained by filing either a statutory writ of certiorari or a declaratory judgment action and that the courts should liberally construe a pleading so that review may be obtained. For example, in this case, a petition for review was filed which did not meet the requirements of the statutory writ of certiorari. Rather than construing it as a declaratory judgment action, the trial court dismissed the case. On appeal, the Supreme Court reversed, ordering that the pleading be construed as a declaratory judgment action and that de novo review of the decision by the local legislative body be obtained thereby.

The decision of the Supreme Court in this case is consistent with its past construction of cases in which common law writs of certiorari were filed where a declaratory judgment action should have been, Fallin v. Knox Cnty. Bd. of Comm’rs, 656 S.W.2d 338, 342 (Tenn. 1983) and cases in which declaratory judgment action was filed but a common law writ of certiorari should have been, McCallen v City of Memphis, 786 S.W.2d 633, 640 (Tenn. 1990). The decision here seems to follow that flexible approach to construction of pleadings.

Define Family?

The definition of the term “family” is almost always a key provision to focus on any zoning ordinance. If that definition is for some reason legally indefensible, it may subject the entire zoning ordinance to a challenge. Usually, the biggest issue in such definitions has to do with the number of unrelated persons who may live together as a family.

Metro Nashville’s definition of family is is fairly typical:

"Family" means one of the following:

1. An individual, or two or more persons related by blood, marriage or law, or, unless otherwise required by federal or state law, a group of not more than three unrelated persons living together in a dwelling unit. Servants and temporary nonpaying guests having common housekeeping facilities with a family are a part of the family for this code;

2. A group of not more than eight unrelated mentally retarded, mentally handicapped, or physically handicapped persons, including two additional persons acting as houseparents or guardians, living together as a single housekeeping unit in accordance with Tennessee Code Annotated § 13-24-102. For purposes of this subsection, 'mentally handicapped' and 'physically handicapped' includes persons being professionally treated for drug and/or alcohol dependency or abuse. For the purposes of this subsection, "mentally handicapped" does not include persons who are mentally ill and, because of such mental illness, pose a likelihood of serious harm as defined in Tennessee Code Annotated § 33-6-501, or who have been convicted of serious criminal conduct related to such mental illness.

3. A group of not more than eight unrelated persons over the age of sixty-five, including two additional persons acting as houseparents or guardians, living together as a single housekeeping unit.

Limiting the number of unrelated persons living together to three is a fairly standard approach. Notice that in the third section of Metro’s definition, if the unrelated people are over the age of 65, eight persons are permitted to live together as a single housekeeping unit. I’ve never seen any case law on this, but I wonder whether the restriction in part 1 is somewhat undone by the provisions of part 3. More specifically, does the discrimination in favor of the elderly in part 3 have the effect of creating an equal protection violation when compared with part 1? Maybe someday the courts will give us an answer.

Recently, in McMaster v. Columbia Bd. of Zoning Appeals, 2011 WL 6156995 (S.C. 12/12/2011), the South Carolina Supreme Court upheld a provision similar to Metro’s part 1. The zoning ordinance in Columbia, South Carolina defined “family” as "an individual; or two or more persons related by blood or marriage living together; or a group of individuals, of not more than three persons, not related by blood or marriage but living together as a single housekeeping unit."

The important constitutional question raised in these cases, and there are quite a few of them, is whether there is a violation of the individual’s right to privacy by virtue of the zoning restrictions. As Justice Marshall said, in dissent, in Village of Belle Terre v. Boraas, 416 U.S. 1 (1974):

The choice of household companions—of whether a person's "intellectual and emotional needs" are best met by living with family, friends, professional associates, or others—involves deeply personal considerations as to the kind and quality of intimate relationships within the home. That decision surely falls within the ambit of the right to privacy protected by the Constitution.

Notice I said in dissent: the US Supreme Court upheld the municipal ordinance which limited a family to to unrelated individuals. The ordinance read as follows:

"[o]ne or more persons related by blood, adoption, or marriage, living and cooking together as a single housekeeping unit, exclusive of household servants. A number of persons but not exceeding two (2) living and cooking together as a single housekeeping unit though not related by blood, adoption, or marriage shall be deemed to constitute a family."

In any event, after this US Supreme Court decision, a large number of state Supreme Court’s got involved with a result turning generally on the perspective of the various courts. For example, in New Jersey, in State v. Baker, 81 N.J. 99, 405 A.2d 368 (1979), struck down an ordinance limiting to four the number of unrelated persons:

One (1) or more persons occupying a dwelling unit as a single non-profit housekeeping unit. More than four (4) persons * * * not related by blood, marriage, or adoption shall not be considered to constitute a family.

Actually, the New Jersey Supreme Court seemed to rely less on the right of privacy, and more on the fact that the classification system did not seem to work in the overall zoning context. For example,

The fatal flaw in attempting to maintain a stable residential neighborhood through the use of criteria based upon biological or legal relationships is that such classifications operate to prohibit a plethora of uses which pose no threat to the accomplishment of the end sought to be achieved. Moreover, such a classification system legitimizes many uses which defeat that goal. Plainfield's ordinance, for example, would prohibit a group of five unrelated "widows, widowers, older spinsters or bachelors — or even of judges" from residing in a single unit within the municipality. On the other hand, a group consisting of 10 distant cousins could so reside without violating the ordinance. Thus the ordinance distinguishes between acceptable and prohibited uses on grounds which may, in many cases, have no rational relationship to the problem sought to be ameliorated.

Returning to the South Carolina Supreme Court, it basically relied upon the US Supreme Court decision: “as many other states have found, we find the rationale of Belle Terre persuasive and find there is a rational relationship between the Ordinance's definition of "family" and the legitimate governmental interests the Ordinance seeks to further”.

The ordinance was rational and the court found no privacy interest in the householders that would require a more exacting standard of review. As a result, the South Carolina ordinance was upheld.

While my thought is that these ordinances should be drafted differently and that a restriction on the number of people who wish to reside in a home as a family is inappropriate, the Tennessee Supreme Court most likely would follow a more traditional view and like the South Carolina Court, most likely uphold the Metro Nashville ordinance, and others similar to it. Maybe one day we’ll get a case here in Tennessee and get a chance to see what the Supreme Court holds.