|Legal Opinion: |
Text of Document:
June 5, 1992
Your question is, can the board of zoning appeals (BZA) adopt polices and procedures under which a member of the BZA can be removed? Based on what you told me, the BZA is prepared to adopt such polices and procedures modelled on the removal provision in the Tennessee Code Annotated, § 13-7-106 related to county boards of zoning appeals.
The answer is maybe, maybe not. That is the best I can do.
Municipal boards of zoning appeal are governed by Tennessee Code Annotated, section 13-7-205. Under that statute the chief legislative body of the city appoints the members of the BZA for specific terms, so that the term of one member expires each year. The question is whether such terms can be shortened for cause, and, if so, what constitutes cause for removal.
Subsection (b) of the same statute provides that
The chief legislative body may provide and specify, in its zoning or other ordinance, general rules to govern the organization and procedure and jurisdiction of the board of appeals, which rules shall not be inconsistent with the provisions of this part and part 3 of this chapter, and the board of appeals may adopt supplemental rules of procedure, not inconsistent with this part and part 3 of this chapter or such general rules.
The statute governing county BZAs, on the other hand, contains the following specific provision: "The county legislative body may remove any member for cause upon written charges and after a public hearing." [Tennessee Code Annotated, § 13-7-106]. In addition, subsection (b) of that statute contains precisely the same language as subsection (b) of Tennessee Code Annotated, § 13-7-205 quoted above.
Tennessee Code Annotated, § 13-7-205 is the product of Public Acts 1935, ch. 44, Tennessee Code Annotated, § 13-7-106 is the product of Public Acts 1935, ch. 33; in other words they were passed the same year. Arguably, because in the same year the General Assembly specifically provided for removal of county BZA members for cause and did not specifically provide for the removal of municipal BZA members, nothing can be read into Tennessee Code Annotated, § 137-205 that gives either the city governing body or the BZA itself the authority to adopt policies and procedures for the removal of BZA members.
That argument has additional weight when added to it is the fact that the subsection (b)s of both Tennessee Code Annotated, §§ 13-7-106 and 13-7-205, which respectively give the county and the municipal governing bodies, and the BZAs themselves, the authority to adopt certain rules and procedures, are identical. Theoretically, the separate provision giving the county legislative body the authority to remove BZA members for cause in Tennessee Code Annotated, § 13-7-106 may point to a legislative intent that the policies and procedures contemplated to be adopted by municipal governing bodies and municipal BZAs does not include polices and procedures governing removal for cause.
However, even if it is conceded that the broad language of Tennessee Code Annotated, § 13-7-205(b) permits the city governing body to adopt policies and procedures governing removal of BZA members for cause, that language does not necessarily give the BZA itself the same authority. That statute provides that the "chief legislative body [of the municipality] has the authority to adopt general rules to govern: (1) organization, and (2) procedure, and (3) jurisdiction of the BZA. However, that statute gives the BZA itself the authority only to adopt "supplemental rules of procedure, not inconsistent with this part, and part 3 of this chapter or such general rules." [Emphasis is mine]. That emphasized distinctive phrase may be a critical one as follows:
- Subsection (b) can be read to mean that the municipal governing body first has to adopt rules, and that the BZA can only adopt rules supplemental to those rules, that the BZA has no independent authority to adopt any "rules" unless the municipal governing body has already adopted rules. Perhaps the city governing body (in its zoning ordinance?) has adopted rules governing BZA organization, procedure and jurisdiction. Even if that is the case and none of the rules govern removal of BZA, I am still uncertain whether the BZA can supplement those rules with rules governing removal of BZA members.
- Subsection (b) also says that the BZA can only adopt supplemental "rules of procedure." Frankly, I do not know if the phrase contemplates rules governing removal of a BZA member for cause, but arguably, it does not. Once again, I refer to Tennessee Code Annotated, § 13-7-107 and note that the removal for cause provisions under that statute are separate from its identical subsection (b).
Terms such as "removal for cause," are construed by the courts to prevent removal for whim and caprice. Removal for cause requires good and sufficient grounds. Such grounds include: disability, age (under extremely limited circumstances), neglect of duty, absences (beyond certain levels and for certain reasons), malfeasance, misfeasance and misconduct, etc. [See 4 McQuillen, Municipal Corporations, § 12.234 et seq]. Whether or not any of these grounds are sufficient in a particular case depends upon the circumstances. After having reviewed certain Tennessee cases involving the ouster from office of municipal officials, it is my view that the courts frown on such action unless the reasons are compelling. Removal of officials for political reasons will not fly under "for cause" provisons. Neither will pretextual removals.
Even if the city governing body or the BZA adopts polices and procedures governing removal of members of the BZA for cause, they can only apply to future conduct (or misconduct).
I have heard only one side of this cases: yours. This letter should in no wise be interpreted by anybody that I am taking that side. But I am generally aware enough of what is going on in the City at the moment to suggest that blame for the upheaval has become almost immaterial. The atmosphere there is so politically loaded that I would be extremely surprised if a court upheld your removal from the BZA for anything but the most egregious cause at the present time.
Sidney D. Hemsley
Senior Law Consultant