Koontz v St. Johns River Water Management District

There is an extremely interesting land use case pending before the United States Supreme Court which will most likely be decided before the end of this month. In Koontz v St. Johns River Water Management District, the issue is whether remediation required by the district effects a taking of the owner’s property.

The Florida Supreme Court found that it did not.

Mr. Koontz owns about 15 acres in Orange County Florida. Much of the land was wetlands and he needed permits to develop the property. In 1994 he applied for permits for dredging to use approximately 3.4 acres of the wetlands. He proposed to offset the impact on the wetlands by imposing a conservation easement on the remainder of his property. However, Florida has a “no net impact” policy and his proposal would only limit the degree of net loss, not add any additional wetlands or enhance any existing wetlands.

The district rejected his proposal but suggested several alternatives including design modifications on his property, reducing the scale of the development to 0.7 acres, as well as two off-site mitigation options. It’s not clear what the cost of the off-site mitigation options might’ve been; the trial court estimated a cost from $90-$150,000.

Coons was not interested in any of the development option suggested by the district, and after informing the district of his position, the district denied the application. He filed suit in 1994. He alleged a taking under the Florida Constitution. The trial court found that there was a violation of Nolan and Dolan and that the off-site mitigation options resulted in a regulatory taking.

The case eventually wound up in front of the Florida Supreme Court, which reversed because Koontz was not required to dedicate real property in exchange for the approval of the permit; and because the application was denied (instead of approved as was the case in Nolan and Dolan), nothing was ever taken.

The US Supreme Court granted certiorari. We await the decision.

Caffey v Metro BZA (Tenn. App. June 2013)

We have discussed in the past the difficulties encountered by property owners attempting to obtain variances under Tennessee law. Tenn. Code Ann. §13-7-207 (3) requires that there be some exceptional physical feature which justifies the relaxation of the zoning requirements as to any particular property, and that that exceptional physical feature not the shared by other properties in the general vicinity.

In Caffey v Metro Board of Zoning Appeals, the property owner requested basically an extension of a previously granted variance in the required side yard. The side yard, as required by the zoning ordinance, had only to be 5 feet wide; previously, the zoning board had granted a variance of 4 feet, and the property owner now returned with a request to extend that variance by one more foot, allowing construction right up to the property line.

The decision by the Court of Appeals, does not discuss the factual basis for the variance granted by the zoning board in any detail. Frankly, two very practical considerations seem to be at play here: first, that there was an assumption that there was a unique physical feature on the property by virtue of the original zoning board decision (something which probably should never be assumed); and second, that a 12 inch variance was nothing to get too excited about.

Although the adjacent property owner protested and appealed, the zoning board granted the variance, the trial court affirmed the variance, and the Court of Appeals reach the same conclusion.

This might perhaps be viewed as an exception to the general rule of great difficulty in obtaining variances under Tennessee law, but more likely it is explained by the two factors above: the zoning board had already granted a variance so there must’ve been some exceptional physical feature, and to extend that variance only another 12 inches, did not seem like any particular problem.

It’s an interesting case, and worth review. It’s unusual to find a property owner returning for an extension of the original variance. In fact, I can’t think of any case that I know of where that has happened before in my experience. But, if you have a client who has a similar situation, the difficulty obtaining an extension may not be that great.

Ghost Houses

Looking around the Internet the other day, I chanced on an article about two married architects in Knoxville who had essentially rehabilitated an existing home in Old North Knoxville, and in order to remain true to the historical roots of the building, sought and obtained approval for the construction of two more homes immediately adjacent to their project.  They now have three structures, one of which they use as their home, and I think that they rent the other two out for income, especially earmarked for improvements to the continuing renovations on their own home.

It’s an interesting article and part of the difficulties stemmed from the customary zoning provision that only one principal structure was permitted on any one zoning lot. It’s not clear how they overcame that obstacle, whether by a zoning change, or by some type of special approval through the board of zoning appeals, but overcame it they did, and construction went forward.

It’s an interesting article and one well worth reading. I admire the dedication of these young professionals as well as their ability to design and implement the project. I have no talent along any of those lines, and trying to rehab an old structure to me sounds like an insurmountable challenge.

By the way, the "Ghost Houses" nickname comes from the coloring both inside and outside the homes.

Read the article here.

Also, there are some interesting photographs of the homes on this blog from Knoxville.

The Islamic Mosque: Adequate Notice Given

The Tennessee Court of Appeals released an interesting opinion on Wednesday relating to the well-known Islamic Mosque controversy in Murfreesboro. As you may recall, the Rutherford County Regional Planning Commission approved a site plan for the development of the mosque. A group of neighbors sued the planning commission alleging various constitutional law violations as well as a violation of the Tennessee Open Public Meetings Act, Tenn. Code Ann. §8-44-101 et seq.  Fisher v Rutherford County Regional Planning Commission, Tennessee Court of Appeals, May 29, 2013; copy posted here.

The trial court dismissed all claims but the Open Public Meetings Act challenge and refused to issue a temporary injunction. But after the final hearing, concluded that there was in fact a violation of the Open Public Meetings Act, and enjoining the county from issuing any further permits with respect to the development of the property.

As the Court of Appeals explained, shortly after the trial court's final decision, suit was filed in federal court under the terms of the Religious Land Use and Institutionalized Persons Act, and a federal court in Nashville issued a mandatory injunction requiring the County to allow completion of the mosque.

The appeal in this case was brought by the county itself, concerned that the trial court’s determination that it had violated the Open Public Meetings Act might have a lasting effect on how it conducted business. The trial court had concluded that at least under the circumstances of this particular case, the use of the Murfreesboro Post to give notice was inappropriate, and that the terms of the notice in the Post under the circumstances was also deficient.

The Court of Appeals reversed. The court first examined the issue of mootness, concerned that because the federal court had already ruled that construction could be completed under the terms of the federal act, that the case no longer could serve as a means of providing relief. The court however concluded that because of the public interest in this matter, that the exception to the mootness doctrine applied.

As anyone who has ever dealt with the Tennessee Open Public Meetings Act, Tenn. Code Ann. §8-44-101 knows, the statute is not particularly helpful in so far as understanding what notice must be given. In fact, §103 only indicates that “adequate public notice” must be given. There’s not a whole lot of direction there.

But as the Court of Appeals points out, the adequate public notice is of the meeting, not of the items on the agenda of the meeting. The trial court seemed to conclude that because of the great public interest in the Islamic Mosque, that there was some higher degree of notice which must’ve been provided by the county. Of course, it’s difficult for the county to know before hand which cases may engender the most public interest. There must be some basic notice which is adequate under the terms of the statute, and which does not change based on the nature of the application.

In any event, the Court of Appeals concluded that the fact that the notice did not specify that the Islamic Mosque would be considered on the agenda within the terms of the notice, was not a defect.

In addition, the court also concluded that the circulation of the Murfreesboro Post was too small and limited to suffice in terms of adequate public notice. However, in a similar case involving the Nashville Record, the Court had looked at four factors in order to conclude that it was a newspaper sufficient for the purposes of notice. Those included (1) whether it is published at regular intervals; (2) whether it is intended for circulation among the general public; (3) whether it contains matters of general interest; and (4) is it in the form of a newspaper? The court concluded that the Murfreesboro Post met these requirements and summarized:

In reaching the conclusion that publication in the MURFREESBORO POST was insufficient, the trial court cited evidence “that few opportunities existed for those who lived near the proposed site to receive a copy of the MURFREESBORO POST because there was no home delivery in the area, and the nearest free distribution rack was some three miles away.” The evidence also showed, however, that the newspaper was published weekly, was intended for circulation to the general public, and contained matters of general interest. Over 21,000 copies were distributed throughout the county on Sundays in May 2010. This was the customary location for the county planning commission’s notices, and any interested person could obtain a copy at a distribution rack or on the newspaper’s website. We conclude that the county’s publication of the notice in the MURFREESBORO POST was sufficient under the [Open Public Meetings Act]. 

The failure to publish the agenda, and the use of the Murfreesboro Post, both were sufficient under the terms of the Open Public Meetings Act. The court reversed the trial court to the extent that it had held that the notice given contravened the act, but upheld the other holdings of the trial court.

Local Government Standing

I mentioned back in late April that there were two local decisions of the Davidson County Chancery Court dealing with the standing of the local government to sue its own board of zoning appeals. One of our judges ruled that Metro Nashville could sue its own zoning board, while another ruled the other way. I have just obtained a copy of the latter decision, and it is posted here for review.

It is likely that both cases will be reviewed by the Tennessee Court of Appeals so that they can be decided consistently.