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Dealing with zoning issues can be challenging whether you are a land owner or developer seeking approval of a subdivision or planned unit development (“PUD”) plat or a zoning waiver from a local Planning Commission, or if you are a neighbor or community group in opposition to the development. You also may need assistance if your local Legislative Body is considering a new zoning law or amendment of an existing one that you support or oppose. This article presents suggestions to assist you in preparing to present your position to a local Planning Commission, Board of Zoning Appeals or Legislative Body, and mentions key features of court challenges of local zoning decisions. These steps will assist you in ensuring that your position on the matter is well represented and documented from the start to minimize problems later in the process.

Land use planning and zoning laws and regulations must comply with Tennessee statutes granting zoning authority to counties and municipalities. Zoning laws and regulations are complicated and vary by county and municipality. Tennessee’s archaic “writ of certiorari” process for appealing local zoning decisions to courts is equally complicated.

Persons applying for such things as approval of a subdivision or PUD will have the service of an engineer who prepares the submitted plat and helps guide the process. For serious opposition to a proposed project, an experienced engineer should be consulted to give expert opinion if there are reasons that the project fails to meet approval standards. If a court challenge of a local zoning decision is anticipated, an experienced attorney should be consulted early in the process. This is necessary because a “writ of certiorari” court challenge of a local zoning decision is not a rehearing with opportunity to present evidence. It is an appellate process where the court reviews the facts presented and deliberations recorded in the official records, minutes and written transcript of the local body’s meeting at which the decision was made. Making sure your position is well-presented and recorded in the written minutes and transcript, often by submission of a letter brief and exhibits, is all important.

An important distinction to understand is whether a zoning decision being made is one that is “administrative”, also called “quasi-judicial”, or is one that is “legislative”. Administrative decisions are to be made solely on whether requirements in already existing zoning laws and regulations have been met. For example, a subdivision plat that meets all regulations cannot legally be denied merely based on lay opinions and fears expressed by neighboring property owners. A state zoning statute requires that if a subdivision plat is denied, the official minutes of the meeting of the local body must state factual findings made by the body upon which the denial was based. Legislative decisions to adopt or amend zoning laws, on the other hand, are issues upon which public support or opposition can appropriately be considered. They are harder to reverse by court challenge.

A writ of certiorari appeal to a court of a zoning decision by a local body must meet several technical requirements and be filed within sixty (60) days of the meeting at which the decision was made. A decision will not be reversed unless a court finds that it was made illegally, arbitrarily, capriciously or irrationally. Examples are if adequate notice of a public hearing on the zoning issue was not given, if the body failed to follow its own rules in making the decision, if in the case of denying a subdivision plat the official minutes do not state factual findings upon which the decision was based, or if the body rendering the decision did not have jurisdictional authority to make it.

Because presenting all evidence for your position before the local zoning body is imperative, these practical suggestions for preparing to present your position to that body should be considered:

  • To present a zoning application, engage an engineer who “knows the waterfront” of local zoning rules and customs, and has a good relationship with the local planning department.
  • If you are opposing a zoning application or proposed change to the zoning law, become familiar with the local zoning law, ask questions at the local planning department about what facts and issues need to be addressed, learn what you can about members of the deciding body, and seek allies for your position.
  • For a political “legislative” decision, let your position and facts supporting it be known to members of the deciding body before the meeting in which the decision will be made.
  • If a court appeal is anticipated, engage the services of an experienced attorney early in the process.
  • Submit a letter brief supporting your position.