Posted by: Patricia Salkin | April 28, 2016

TN Appeals Court Agrees ZBA Acted Arbitrarily in Removing Ownership Condition on Variance for Allowable Number of Units on Property

In 1979, Resha was notified by letter from the Metropolitan Department of Codes Administration that his property was in violation of a zoning ordinance that allowed a maximum of two dwelling units in the area at that time. Resha’s property contained five dwelling units. He was instructed to bring the buildings and premises into compliance with the zoning regulation and he appealed the zoning administrator’s decision to the board of zoning appeals (“BZA”), which permitted him to retain the five units for as long as he owned the property. In 2014, Resha wanted to sell the property so he petitioned the zoning administrator to remove the ownership condition so that another owner could maintain the five units on the property. The zoning administrator denied the application, and Resha appealed to the BZA, which removed the ownership condition.

Five neighbor property owners (“Homeowners”) challenged the BZA’s decision. The lower court vacated the BZA’s decision, finding that the BZA acted arbitrarily in removing the ownership condition and then failing to consider the effect of the decision of the creation of a new permanent variance without a determination that the property met the statutory standards. The matter was remanded to the BZA and Resha appealed. The Court affirmed. The Court did not buy Resha’s argument that the Homeowner’s were attacking the 1979 BZA decision long after the running of the statute of limitations since Resha himself triggered the current case when he filed another appeal with the BZA in 2014. The BZA’s action in the 2014 case changed the nature of the underlying variance. The courts have held that the sixty-day statute of limitations for filing a petition for writ of certiorari from the decision of an administrative tribunal is jurisdictional. The Homeowners got involved to oppose Resha’s request to allow the variance to apply to other owners and then filed a petition for writ of certiorari to challenge the BZA’s decision. This petition for writ of certiorari was filed within sixty days of the BZA decision.

The parties in the case agreed that the BZA properly removed the condition limiting the variance to Mr. Resha. A permit or variance to use land for a certain purpose is not personal to the owner but is a condition that runs with the land. The point of contention is whether the BZA should have gone further and considered the effect of this decision on the underlying variance. Tenn.Code Ann. § 13–7–207(3) states that variances are to be granted based only upon the condition of the property itself and resulting practical difficulties or undue hardship. Section 17.40.370 of the Metropolitan Government of Nashville and Davidson County—Code of Ordinances (“Metro Code”) states that the BZA “shall not grant a variance without an affirmative finding of fact on each of the following standards,” based upon the evidence presented of Physical Characteristics, Unique Characteristics, Hardship Not Self–Imposed, Financial Gain Not Only Basis, Financial gain is not the sole basis for granting the variance, No Injury to Neighboring Property, No Harm to Public Welfare, The granting of the variance will not be detrimental to the public welfare and will not substantially impair the intent and purpose of this Zoning Code, and the Integrity of Master Development Plan. The Court noted that Section 17.40.390 of the Metro Code provided that in the approval of a request for a variance, “findings shall specifically identify the unique characteristics of the property and the precise nature of the hardship”; in the case of a denial of such a request, “findings shall specifically identify the standards that were not met.” Here, no such findings were made by the BZA.

The Court said that by considering only the legality of the condition attached to the variance, the BZA acted arbitrarily. Taking away the limitation that the five-unit condition would only apply to Resha meant that there was a permanent use variance on that piece of property. This changed the nature of the variance. They agreed with the following conclusions of the court below that removing the condition but failing to address the effect of the decision was an arbitrary action by the Board. The Court further finds that the BZA acted outside of its jurisdiction when it essentially awarded Resha a new and permanent variance without assuring that the property met the necessary standards mandated by Tenn.Code Ann. § 13[7–207(3)] and Metro Zoning Code § 17.40.360. Although the Homeowners argued that the underlying variance was void as a matter of law, the court believed that the trial court properly vacated the BZA order and remanded for further consideration. The factors relevant to whether the property at issue meets the criteria described in Tenn.Code Ann. § 13–7–207 and Metro Code § 17.40.370 have not been developed or considered by the BZA.

Bell v Metro. Govt. of Nashville and Davidson County, 2016 WL 1119152 (TN App. 3/21/2016)

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