Metro Can Sue Its Own Zoning Board, Holds Tennessee Supreme Court

By Daniel Horwitz:

In March 2012, an advertising company applied to Metro’s Department of Codes and Building Safety for two digital display billboard permits.  The Department’s Zoning Administrator denied the company’s two permit requests, so the company appealed the denial to Metro’s Board of Zoning Appeals (“the Board”).  On a 4-2 vote, the Board overturned the Zoning Administrator’s decision, and it granted the company the two digital display permits that it sought.

Unhappy with the Board’s decision, Metro Legal filed a lawsuit against the Board and various other parties under the appeal provision set forth in Tenn. Code Ann. § 27-9-101, which governs zoning appeals.  In response, the parties that Metro Legal sued filed a motion to dismiss the lawsuit on the basis that Metro “does not have standing to bring suit [against its] own Board.”  The trial court granted the parties’ motion to dismiss, finding that Metro did not have a legal right to appeal the Board’s decision under Tenn. Code Ann. § 27-9-101.  Further, the trial court held that Metro had not suffered an injury, which is a necessary precondition to filing any kind of lawsuit.  As a result, Metro Legal appealed the trial court’s decision to dismiss its lawsuit to the Tennessee Court of Appeals, and the case ultimately reached the Tennessee Supreme Court.

1.  Metro’s Right to Appeal Under Tenn. Code Ann. § 27-9-101

The statute governing zoning appeals provides broadly that: “Anyone who may be aggrieved by any final order or judgment of any board or commission . . . may have the order or judgment reviewed by the courts, where not otherwise specifically provided, in the manner provided by this chapter.”[1]  Thus, the first question presented was whether the term “anyone” in Tenn. Code Ann. § 27-9-101 included Metro.

Reviewing the applicable statutory text, the Tennessee Supreme Court easily concluded that for purposes of Tenn. Code Ann. § 27-9-101, “anyone” did indeed include Metro.  Writing for a unanimous court, Justice Bivins explained that:  “Section 101 refers to ‘anyone,’ and we conclude that Metro, a public corporation, falls within the scope of the term ‘anyone.’”  Further, he noted, “[e]ven were we to construe ‘anyone’ as referring to ‘persons,’ the Tennessee Code defines ‘person’ as including corporations[, and] Metro is a public corporation[.]”  Accordingly, he reasoned, Metro enjoys the right to pursue zoning appeals under Tenn. Code Ann. § 27-9-101 just like anyone else.

Seeking a contrary holding, Metro’s opposing litigants highlighted the fact that the legislature had considered – but failed to enact – a separate version of the zoning appeal statute that would have expressly afforded municipalities the right to appeal.  By opting not to enact that version, they argued, the legislature must have intended to deny municipalities the right to appeal zoning decisions.  Rejecting this line of reasoning, however, the Court explained that it was “[un]aware of any [] authority limiting the definition of the term ‘anyone’ . . .  to exclude Metro as a potential petitioner.”[2]

2.  Metro’s Injury

Having established that Tenn. Code Ann. § 27-9-101 affords Metro the right to seek judicial review of zoning decisions under circumstances when it has been “aggrieved,” the next question to be decided was whether it is even possible for Metro “to be aggrieved by an erroneous decision made by one of its own boards.”  Holding in the affirmative, the Court explained that “when applied to local governments, aggrievement encompasses interference with a local government’s ability to fulfill its statutory obligations, or substantial, direct, and adverse effects on the local government in its corporate capacity.”  Since Metro alleged in its complaint that the Zoning Board’s decision would interfere with its duty to enforce municipal zoning ordinances, the Court concluded that Metro had alleged an injury sufficient to justify judicial review.  Specifically, the court explained:

“Metro has established that it is ‘aggrieved’ by its allegation that, if the [Board’s] ruling is allowed to stand, it will be unable to enforce certain of its ordinances.  That allegation is within Section 101‟s zone of interests. Accordingly, Metro has established its standing to bring this action under Section 101.”

3.  Policy Considerations

In holding that Metro has the legal right to appeal decisions made by the Board of Zoning Appeals, the Court also relied heavily on a single crucial policy consideration:  the fact that a contrary result would mean that only wealthy individuals would be able to appeal adverse zoning decisions.  Specifically, the Court noted, if Metro did not have the right to appeal Board decisions on behalf of taxpayers, then only individuals or entities with sufficient resources to file a lawsuit would be able to challenge the Board in court.  Rejecting this result as unacceptable, the Court explained that it was “persuaded particularly” by the concern that:

“The enforcement of a governmental body’s zoning code should not depend upon the economic status of individuals.  Indeed, such a scenario stands to defeat the very purpose of a zoning code.”

The Court’s sensitivity to the fact that legal rights should not be a function of poverty is welcome and should be applauded by all.  One can only hope, however, that its concern for indigent citizens will extend beyond those affected by zoning decisions.  It is well documented, for example, that within the criminal justice system, outcomes that should depend exclusively on guilt or innocence are instead highly dependent on a defendant’s economic status—leading inexorably to the conclusion that “[t]here is a crisis in legal representation for the poor throughout the country.”[3]  Similarly, on behalf of several domestic and sexual violence prevention advocates who are seeking to protect rape victims from having their most sensitive personal information disclosed, the author has beseeched the Justices to recognize that “the vast majority of victims of sexual and domestic violence lack the means to retain private counsel to protect their rights in any—much less every—phase of Tennessee’s justice system.”  See Tennessean v. Metro. Gov’t of Nashville, No. M-2014-00524-SC-R11-CV, Brief of Amici Curiae Domestic and Sexual Violence Prevention Advocates 32, available at http://works.bepress.com/cgi/viewcontent.cgi?article=1023&context=daniel_horwitz.  Accordingly, these advocates have implored the Court to hold that rape survivors should benefit from a presumption in favor of non-disclosure with respect to their private, personal information, rather than being forced to hire an attorney to protect their rights in the event that someone seeks access to their private records.

Whether the Court will take citizens’ poverty and economic status into consideration outside the context of zoning disputes, however, only time will tell.

Read the Tennessee Supreme Court’s unanimous opinion in Metro. Gov’t of Nashville-Davidson Cty. v. Bd. of Zoning Appeals of Nashville here.

Questions about this article?  Email Daniel Horwitz at daniel.a.horwitz@gmail.com.

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[1] Tenn. Code Ann. § 27-9-101.

[2] In the author’s view, a much stronger argument would have been that Tenn. Code Ann. § 13-7-206 – which governs the first step of the zoning appeals process – specifically affords “municipalit[ies]” the right to appeal, while Tenn. Code Ann. § 27-9-101 – which governs the second step of the zoning appeals process – does not.  Pursuant to the doctrine of in pari materia, one could argue persuasively that this conspicuous difference indicates that the legislature intended for the two provisions to function differently.  See, e.g., Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 560 (Tenn. 2013) (holding that where to statutory provisions are “enacted together,” “the doctrine of in pari materia requires us to interpret the[] two sections together. . . . Although legislative silence is not generally indicative of an intent not to act, legislative silence in [] context offers a strong suggestion that the legislature intend[s provisions to] function differently.”) (internal citations omitted).

[3] Stephen B. Bright, The Right to Counsel in Death Penalty and Other Criminal Cases: Neglect of the Most Fundamental Right and What We Should Do About It, 11 J.L. SOC’Y 1, 3 (2010), available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=4457&context=fss_papers.