Venture Holdings LLC v Metro Board of Zoning Appeals, 2019 WL 1897596, is a somewhat interesting conditional use permit case. As I have frequently mentioned, generally speaking, the applicant for the conditional use permit generally has the upper hand. The applicant must show that it meets the requirements for the particular conditional use it is applying for, and typically what happens is that the neighbors show up in opposition, but not very well organized and not prepared to address the particular requirements of the zoning ordinance.
This case is somewhat the antithesis of the general rule. In this case, one of my partners, Shawn Henry, had been retained to represent the neighbors and he had hired the services of a young urban planner to help oppose the application. Ultimately, the difficulty for the applicant was not the opposing claims of the neighbors so much as the failure of the applicant to satisfy the board and the courts that the impact on the surrounding land uses would not be substantial. A number of the surrounding manufacturing uses were somewhat sensitive to air-quality issues, and ultimately the board ruled against the application based on the sensitivity of the surrounding areas and the courts essentially upheld that determination.
Saturday, July 20, 2019
Friday, July 19, 2019
Roland Digital Media v City of Livingston
Roland Digital Media v City of Livingston, 2019 WL 117582, is an interesting case. It involves an appeal from a decision of the Livingston Board of Zoning Appeals but the petitioner only named as the respondent the city of Livingston itself, and did not name the board of zoning appeals as a respondent. A motion to dismiss was granted by the trial court and affirmed on appeal based on the statutory provision which is very clear and requires that the petition "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 board or commission, and who do not join as petitioners."Tenn. Code Ann. §27-9-104.
Certainly that language seems very clear. Here's my problem with it. First, the zoning board is created by the chief legislative body of the town.Tenn. Code Ann. §13-7-205. There is no recitation in any of the state statutes, that this board has the power to sue or be sued. There is no provision for the board to have a budget, or for that matter even pay its members. It is difficult for the board to higher representation. Typically that is done by the city. Indeed, in this case, the city attorney represented the board of zoning appeals. There is no power to contract given to the board of zoning appeals and ultimately the big difficulty is that saying the board as a separate entity from the city appears to be a violation of Dillon's Rule of municipalities. Can I sue the Nashville Police Department for a civil rights violation? No. The Nashville Police Department or I suppose more properly, the Metro Police Department his simply one unit of government within the overall Metropolitan Government of Nashville and Davidson County. It is not a separate entity. To say that the zoning board is a separate entity seems equally unfounded. This is especially true where it has no budget, it has no employees, it has no power to contract, it can't hire its own lawyer, and essentially its jurisdiction is absolutely controlled by the local government that created it.
In this case, the zoning board was abundantly referred to in the body of the petition. It was obviously clear that the petition arose out of a decision made by the board of zoning appeals.
The statutory command is certainly clear however, and my recommendation is to file against the city, "acting by and through" it's board of zoning appeals, or planning commission, or whatever other administrative body may have made the contested decision. It's not absolutely clear to me that this is appropriate under the terms of the statute but at least in this way the board is named as a respondent/defendant.
When I first started practicing law, many attorneys would simply name the individual members of the administrative body in order to avoid the problems with jurisdiction over a board which was largely nonexistent. The individual members of the board were certainly capable of being sued and perhaps this is another workaround that is still viable.
Finally, consider whether the city Council must be named as a respondent or whether you can simply sue the city in its own right in a case which is appealed from a decision of the city Council. For example, many planned unit development ordinances require that the city Council approve the development at some point in the process, and frequently this is the most difficult aspect of the administrative procedure. If the city Council votes down the planned unit development even though the applicant meets all the requirements, there is a strong argument that the city Council decision should be reversed on appeal to a court of law. Suppose the appeal is filed suing only the city, but not the city Council. Does this comply with the provisions of the statute?
The answers are pretty hard to come by. And to lose the right to appeal a decision such as this based on the hypertechnical requirements of the certiorari statutes, is clearly unfortunate. Tennessee needs to have a separate land use review act which would clarify the process, make it simpler, easier to understand, and eliminate the hypertechnical pleading requirements of the common law writ of certiorari.
Certainly that language seems very clear. Here's my problem with it. First, the zoning board is created by the chief legislative body of the town.Tenn. Code Ann. §13-7-205. There is no recitation in any of the state statutes, that this board has the power to sue or be sued. There is no provision for the board to have a budget, or for that matter even pay its members. It is difficult for the board to higher representation. Typically that is done by the city. Indeed, in this case, the city attorney represented the board of zoning appeals. There is no power to contract given to the board of zoning appeals and ultimately the big difficulty is that saying the board as a separate entity from the city appears to be a violation of Dillon's Rule of municipalities. Can I sue the Nashville Police Department for a civil rights violation? No. The Nashville Police Department or I suppose more properly, the Metro Police Department his simply one unit of government within the overall Metropolitan Government of Nashville and Davidson County. It is not a separate entity. To say that the zoning board is a separate entity seems equally unfounded. This is especially true where it has no budget, it has no employees, it has no power to contract, it can't hire its own lawyer, and essentially its jurisdiction is absolutely controlled by the local government that created it.
In this case, the zoning board was abundantly referred to in the body of the petition. It was obviously clear that the petition arose out of a decision made by the board of zoning appeals.
The statutory command is certainly clear however, and my recommendation is to file against the city, "acting by and through" it's board of zoning appeals, or planning commission, or whatever other administrative body may have made the contested decision. It's not absolutely clear to me that this is appropriate under the terms of the statute but at least in this way the board is named as a respondent/defendant.
When I first started practicing law, many attorneys would simply name the individual members of the administrative body in order to avoid the problems with jurisdiction over a board which was largely nonexistent. The individual members of the board were certainly capable of being sued and perhaps this is another workaround that is still viable.
Finally, consider whether the city Council must be named as a respondent or whether you can simply sue the city in its own right in a case which is appealed from a decision of the city Council. For example, many planned unit development ordinances require that the city Council approve the development at some point in the process, and frequently this is the most difficult aspect of the administrative procedure. If the city Council votes down the planned unit development even though the applicant meets all the requirements, there is a strong argument that the city Council decision should be reversed on appeal to a court of law. Suppose the appeal is filed suing only the city, but not the city Council. Does this comply with the provisions of the statute?
The answers are pretty hard to come by. And to lose the right to appeal a decision such as this based on the hypertechnical requirements of the certiorari statutes, is clearly unfortunate. Tennessee needs to have a separate land use review act which would clarify the process, make it simpler, easier to understand, and eliminate the hypertechnical pleading requirements of the common law writ of certiorari.
Thursday, July 18, 2019
Knick v Township of Scott
This is an interesting Supreme Court case which can be summarized very quickly: the court overrules the well-known Williamson County v Hamilton Bank case, 473 US 172 (1985), insofar as that case required a property owner claiming a violation of his Fifth Amendment rights by way of a taking of his property, does not now need to file in state court prior to pursuing his or her federal rights.
As you will probably recall, the Williamson County case made it harder to get to federal court in two ways, by first requiring that the property owner apply either to the zoning board, the planning commission, or any other administrative body, for any administrative relief which might be available, and by second, requiring that the lawsuit be filed in state court before proceeding to federal court. The latter requirement however was all-encompassing inasmuch as once a state court ruled adversely with regard to the federal claim, it was res judicata in federal court and the property owner was out of luck.
This decision, from my standpoint, simply allows a property owner to proceed in federal court without the necessity of filing in state court first. In Tennessee, many property owners might choose to go to state court anyway. I don't think this case alters the landscape in any significant way, but it does have the virtue of making takings claims somewhat simpler, and more sense to go.
As you will probably recall, the Williamson County case made it harder to get to federal court in two ways, by first requiring that the property owner apply either to the zoning board, the planning commission, or any other administrative body, for any administrative relief which might be available, and by second, requiring that the lawsuit be filed in state court before proceeding to federal court. The latter requirement however was all-encompassing inasmuch as once a state court ruled adversely with regard to the federal claim, it was res judicata in federal court and the property owner was out of luck.
This decision, from my standpoint, simply allows a property owner to proceed in federal court without the necessity of filing in state court first. In Tennessee, many property owners might choose to go to state court anyway. I don't think this case alters the landscape in any significant way, but it does have the virtue of making takings claims somewhat simpler, and more sense to go.
Saturday, December 8, 2018
Historic Landmark for the Strand Book Store in NYC?
In an interesting New York Times article today, the owner of the Strand bookstore in NYC vigorously opposed having the city historic commission landmark the the building in which the bookstore operates. Arguing that land marking the building would increase her overall costs in what is a cutthroat business within margins, she asked the city commission to just leave her alone. She pointed out that New York City just granted $3 billion worth of subsidies to her arch rival, Amazon, and that instead of getting help from the city financially, they threaten now to make her operations even more difficult by land marking the building. It's quite a fun little article, and well worth reading. Whether her evaluation of the impact of the landmark status is accurate, the juxtaposition of the subsidies being paid by the city to Amazon vs. keeping one of the few independent bookstores still operational in the city is quite entertaining.
Wednesday, November 7, 2018
Cunningham v Bedford County -- Procedural Due Process
We have been reviewing the Cunningham v Bedford County case (copy found here) over the last several installments of this little zoning blog. We will continue today with a look at procedural due process.
The plaintiff also alleged a violation of procedural due process under both the US and Tennessee constitutions. The difficulty with this type of a claim is that there must be some constitutionally protected property interest that requires some degree of notice and opportunity to be heard. That property interest must be more than a unilateral expectation or an abstract need or desire, it must be a legitimate claim of entitlement created and defined by existing rules or understandings that come from some independent source such as Tennessee state law. The Court of Appeals concluded that here the plaintiff simply failed to demonstrate that he was entitled to have a zoning change and it was not therefore deprived of any procedural due process. He had no legitimate claim of entitlement to what is a discretionary decision by the local legislative body.
Once again, to a perhaps lesser extent in this instance, the decision turns on whether or not there was a rational basis for the failure to rezone the property. Having concluded that there was a rational basis for declining to change the zoning, there could not possibly be any claim of entitlement and as a result the procedural due process argument was doomed to failure.
I would go further and say that the procedural due process argument is somewhat difficult in the context of a zoning change. Perhaps if the zoning had been commercial and the County changed it to residential to the detriment of the owner, a procedural to process argument might have been more tenable. Under these circumstances though, it may be just too far a stretch. However, adding procedural and substantive due process claims to any case such as this is always worth considering and usually worth trying. Remember, that the local legislative body had cut off the plaintiff’s presentation of one of the hearings, and there were some allegations that at least the trial court found persuasive because of conflicts of interest by some members of the County commission.
Our next installment of this review of the Cunningham case will take a quick look at the alleged violations of substantive due process.
The plaintiff also alleged a violation of procedural due process under both the US and Tennessee constitutions. The difficulty with this type of a claim is that there must be some constitutionally protected property interest that requires some degree of notice and opportunity to be heard. That property interest must be more than a unilateral expectation or an abstract need or desire, it must be a legitimate claim of entitlement created and defined by existing rules or understandings that come from some independent source such as Tennessee state law. The Court of Appeals concluded that here the plaintiff simply failed to demonstrate that he was entitled to have a zoning change and it was not therefore deprived of any procedural due process. He had no legitimate claim of entitlement to what is a discretionary decision by the local legislative body.
Once again, to a perhaps lesser extent in this instance, the decision turns on whether or not there was a rational basis for the failure to rezone the property. Having concluded that there was a rational basis for declining to change the zoning, there could not possibly be any claim of entitlement and as a result the procedural due process argument was doomed to failure.
I would go further and say that the procedural due process argument is somewhat difficult in the context of a zoning change. Perhaps if the zoning had been commercial and the County changed it to residential to the detriment of the owner, a procedural to process argument might have been more tenable. Under these circumstances though, it may be just too far a stretch. However, adding procedural and substantive due process claims to any case such as this is always worth considering and usually worth trying. Remember, that the local legislative body had cut off the plaintiff’s presentation of one of the hearings, and there were some allegations that at least the trial court found persuasive because of conflicts of interest by some members of the County commission.
Our next installment of this review of the Cunningham case will take a quick look at the alleged violations of substantive due process.
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