Can a Tennessee county legislative body file a special-use exception application on behalf of a private property owner, and can it challenge a zoning board's denial of one?

Subject

Opinion No. 10-108, Zoning Appeals by County Legislative Body under Tenn. Code Ann. § 13-7-108, October 28, 2010

Plain-English summary

Representative Barrett Rich asked two zoning questions about Tennessee counties. First, may a county legislative body apply to its board of zoning appeals for a special use exception on behalf of a private property owner? Second, may a county legislative body challenge a board's denial of a private owner's special-use-exception application? The AG said no to the first and a qualified yes to the second. On the application question, Tenn. Code Ann. § 13-7-108 only describes who may appeal to the board; it doesn't say who may apply for an exception. Generally the property owner is the proper applicant, and the AG found no statutory hook that lets the county step into the owner's shoes. On the challenge question, the AG said the county may seek judicial review of a board denial, but it has to demonstrate "aggrievement" in the form that the Tennessee Court of Appeals identified in City of Brentwood v. Metropolitan Bd. of Zoning Appeals: interference with the county's ability to meet its statutory obligations, or substantial, direct, and adverse effects on the county in its corporate capacity. Common examples were reduction in local revenues, depreciation of the local government's own property, interference with police or fire protection, or impairment of public health, safety, or welfare.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Who can apply for a special use exception?

The AG said the property owner. Tenn. Code Ann. § 13-7-108 doesn't directly address who may apply for an exception (it addresses who may appeal an administrative decision), but the AG read the statutory scheme as defaulting to the property owner. Some counties' own zoning ordinances, adopted under Tenn. Code Ann. § 13-7-107(a), may add or refine application procedures, so the AG suggested checking local rules.

Why can't a county legislative body apply for an exception on a private owner's behalf?

The AG simply found no statutory or regulatory authority that allowed it. Tennessee local governments have no inherent power over private property; their power comes from specific delegations by the General Assembly. The legislature gave them zoning authority and a board of zoning appeals, but did not authorize them to file applications for private owners.

What did "aggrievement" mean for a county trying to appeal a zoning decision?

Under City of Brentwood v. Metropolitan Bd. of Zoning Appeals, 149 S.W.3d 49, 58 (Tenn. Ct. App. 2004), a local government is "aggrieved" when the board's decision interferes with its ability to meet its statutory obligations, or causes "substantial, direct, and adverse effects" in the county's corporate capacity. The Brentwood examples included revenue reductions, depreciation of public property, interference with police or fire services, and general impairment of public health, safety, or welfare.

How long did a county have to appeal a board decision?

Sixty days. The AG cited Tenn. Code Ann. § 27-9-102, which sets the deadline for a petition of certiorari. The substantive right of appeal comes from Tenn. Code Ann. § 27-9-101.

Did the AG distinguish "aggrieved" from "affected"?

Practically, no. Tenn. Code Ann. § 13-7-108 lets county officers, departments, or boards that are "affected" by an administrative decision appeal to the board of zoning appeals, while § 27-9-101 talks about anyone "aggrieved" by a final order. The AG, citing City of Brentwood, treated the two terms as similar in scope. The reasoning: the same group that can appeal to the board should be able to appeal a board decision to court.

Background and statutory framework

Tennessee counties don't have inherent power to regulate private property; their zoning authority is delegated by the General Assembly through Tenn. Code Ann. §§ 13-7-101 et seq. See 421 Corp. v. Metropolitan Gov't, 36 S.W.3d 469, 475 (Tenn. Ct. App. 2000), and Family Golf of Nashville v. Metropolitan Gov't, 964 S.W.2d 254 (Tenn. Ct. App. 1997). A county legislative body may set general rules for the operations and jurisdiction of its zoning board (§ 13-7-107(a)) so long as they don't conflict with state law. The board itself has statutory power to hear and decide requests for special exceptions (§ 13-7-109(2)).

Tenn. Code Ann. § 13-7-108 governs appeals to the board: appeals may be taken "by any person aggrieved, or by any officer, department or board of the county affected" by a decision of a building commissioner or other administrative official. By its terms, the statute is about appeals within the local zoning system, not about who may submit an initial application for a special use exception.

Once the board acts, anyone "aggrieved" by its final order may seek judicial review by petition for certiorari under Tenn. Code Ann. § 27-9-101, with a sixty-day filing window in § 27-9-102. The AG, leaning on City of Brentwood, 149 S.W.3d at 57, said it would be illogical to give different scopes to "affected" and "aggrieved": the universe of people who can appeal to the board should match the universe that can seek judicial review. For local governments specifically, the practical standing test from Brentwood is whether the denial interferes with statutory obligations or causes a substantial, direct, and adverse effect on the local government's corporate capacity (149 S.W.3d at 58). Wood v. Metropolitan Nashville & Davidson County Government, 196 S.W.3d 152, 158 (Tenn. Ct. App. 2005), framed the general "aggrievement" inquiry as requiring a special interest or injury not common to the general public.

Citations

• Tenn. Code Ann. § 13-7-101 et seq. (county zoning statutes)
• Tenn. Code Ann. § 13-7-107(a) (county zoning rules)
• Tenn. Code Ann. § 13-7-108 (appeals to the board of zoning appeals)
• Tenn. Code Ann. § 13-7-109(2) (board power to hear special exceptions)
• Tenn. Code Ann. § 27-9-101 (judicial review of board decisions)
• Tenn. Code Ann. § 27-9-102 (60-day filing window)
• 421 Corp. v. Metropolitan Gov't of Nashville & Davidson County, 36 S.W.3d 469 (Tenn. Ct. App. 2000)
• City of Brentwood v. Metropolitan Bd. of Zoning Appeals, 149 S.W.3d 49 (Tenn. Ct. App. 2004)
• Wood v. Metropolitan Nashville & Davidson County Government, 196 S.W.3d 152 (Tenn. Ct. App. 2005)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2010/op10-108.pdf

Original opinion text

Zoning Appeals by County Legislative Body under Tenn. Code Ann. § 13-7-108

QUESTIONS

1. Does Tenn. Code Ann. § 13-7-108 allow the legislative body of a county to apply to the board of zoning appeals for a special use exception on behalf of a private property owner?

2. Does Tenn. Code Ann. § 13-7-108 allow the legislative body of a county to challenge a board of zoning appeal's denial of a private property owner's application for a special use exception?

OPINION

1. No. Tenn. Code Ann. § 13-7-108 only describes who may appeal to the board of zoning appeals. The statute does not address who may apply to the board of zoning appeals for a special use exception permit. In general, the owner of the property is the proper party to apply for a special use exception.

2. A county legislative body may challenge in court a decision by a board of zoning appeals, but only if the county legislative body can demonstrate that the denial of the special use exemption has interfered with the local government's ability to meet its statutory obligations or there exists some substantial, direct, and adverse effects on the local government in its corporate capacity as a result of the denial.

ANALYSIS

Local governments lack inherent power to control the use of private property within their boundaries. See 421 Corp. v. Metropolitan Gov't of Nashville & Davidson County, 36 S.W.3d 469, 475 (Tenn. Ct. App. 2000). Their power derives from the State through specific delegation by the General Assembly. See id. (citing State ex rel. SCA Chem. Servs. v. Sanidas, 681 S.W.2d 557, 562 (Tenn. Ct. App. 1984) and Family Golf of Nashville, Inc. v. Metropolitan Gov't, 964 S.W.2d 254, 257 (Tenn. Ct. App. 1997)). Local governments must exercise their delegated authority consistently with the delegation statutes from which they derive their power. See id. (citing Henry v. White, 250 S.W 70, 71 (Tenn. 1952)).

Under Tenn. Code Ann. § 13-7-101, et seq., the General Assembly has expressly delegated the authority to county legislative bodies to enact zoning regulations and create a board of zoning appeals. A county legislative body may create its own general rules governing the operations, procedures, and jurisdiction of the board of zoning appeals, as long as the rules do not conflict with the provisions of Tenn. Code Ann. § 13-7-101, et seq. Tenn. Code Ann. § 13-7-107(a). A board of zoning appeals has the power to hear and decide requests for special exceptions. Tenn. Code Ann. § 13-7-109(2).

The first question is whether Tenn. Code Ann. § 13-7-108 allows a county legislative body to apply to the board of zoning appeals for a special use exception on behalf of a private property owner. The statute provides:

Appeals to the board of appeals may be taken by any person aggrieved, or by any officer, department or board of the county affected, by any grant or withholding of a building permit or by any other decision of a building commissioner or other administrative official, based in whole or in part upon the provisions of any ordinance under this part.

Tenn. Code Ann. § 13-7-108.

By enacting Tenn. Code Ann. § 13-7-108, the General Assembly has clearly limited who may appeal an administrative decision to the board of zoning appeals. However, the statute does not address who may apply for a special use exception. This office is not aware of any state statutes or regulations that permit a county legislative body to apply for a special use exception on behalf of a private property owner. It is generally accepted that the owner of property is the proper party to apply for a special use exception. Since a county local governing body operating under the authority of Tenn. Code Ann. § 13-7-107(a) may enact rules governing the operations, procedures, and jurisdiction of its local board of zoning appeals, further review of a particular governing body's zoning ordinances may provide some additional guidance regarding the specific application procedures for that county.

The second question is whether Tenn. Code Ann. § 13-7-108 provides standing for a county local governing body to challenge the board of zoning appeals' decision to deny a private landowner's application for a special use exception.

As indicated above, Tenn. Code Ann. § 13-7-108 allows any county officer, department or board "affected" by an administrative decision to appeal that decision to the board of zoning appeals. And once having done so, the county officer, like any person who is dissatisfied with the outcome of an administrative hearing, may take the matter to a court for further review. Clearly, this would include the opportunity to appeal the board's denial of a request for special use exception. The statutes set out that anyone who is "aggrieved" by a final order of a board may have the board's final order reviewed by the courts. Tenn. Code Ann. § 27-9-101. A petition for certiorari must be filed with the court within sixty days from entry of the board's final order. Tenn. Code Ann. § 27-9-102.

The provisions of Tenn. Code Ann. § 13-7-108 and § 27-9-101 do not provide definitions for the terms "aggrieved" or "affected," although in this particular context it can be presumed that the two words have similar meanings. As a practical matter, the Tennessee Court of Appeals explains:

It stands to reason that the scope of the statute defining who may appeal to the board should be the same as the scope of the statute defining who may seek judicial review of a board's decision. After all, persons authorized to appeal to the Board from an adverse decision by the zoning administrator should likewise be authorized to seek judicial review if the Board's decision is not to their liking. Any other conclusion would create an anomalous situation where some persons appealing to the Board would be entitled to judicial review while others would not.

City of Brentwood v. Metropolitan Bd. of Zoning Appeals, 149 S.W.3d 49, 57 (Tenn. Ct. App. 2004).

What constitutes "aggrievement" in land use cases is demonstration of a distinct and palpable injury or impairment. Id. at 58. In general, to be "aggrieved" a party must be able to show a special interest in the agency's final decision or demonstrate it is the subject of injury not common with that of the general public. Wood v. Metropolitan Nashville & Davidson County Government, 196 S.W.3d 152, 158 (Tenn. Ct. App. 2005).

As applied to local governments, "aggrievement" includes interference with the government's ability to meet its statutory obligations or some substantial, direct, and adverse effects on the local government in its corporate capacity. City of Brentwood, 149 S.W.3d at 58. Examples in which the courts have found "aggrievement" in land use cases include those where the local government's decision results in a reduction in local government revenues or depreciation in value of the local government's property, interference with the ability of local government to provide police or fire protection, or general impairment to the health, safety or welfare of local residents. Id. Thus, while Tenn. Code Ann. § 13-7-108 and § 27-9-101 do provide a local governing body with the means of appeal from a decision of the board of zoning appeals, the statutes require the local governing body to demonstrate that some cognizable interest is being affected by the board of zoning appeals' denial of a private property owner's application for a special use exception.

ROBERT E. COOPER, JR.
Attorney General and Reporter

BARRY TURNER
Deputy Attorney General

BRIAN J. RAMMING
Assistant Attorney General

Requested by:
The Honorable Barrett Rich
State Representative
204 War Memorial Building
Nashville, Tennessee 37243