May 29, 1995
Your question is, what recourse does the city have when the board of zoning appeals grants variances for mobile homes that it does not have authority to grant? As I understand it, you know that the city has no authority to prohibit in residential areas double-wide mobile homes that meet certain standards, and your question does not apply to such mobile homes.
In my opinion, the city's proper recourse is to refuse to issue a certificate of occupancy under section 14-804 of the Municipal Code (Proposed). Where a BZA exceeds its authority its acts are apparently ultra vires and void. If the property owner threatens to locate the mobile home in a prohibited zone after being denied a certificate of occupancy, or actually locates the mobile home in a prohibited zone, the city can impose penalties under section 14-805, and/or exercise its other legal remedies under section 14-806, of the Municipal Code (Proposed).
Jurisdiction and Powers of BZAs.
Tennessee Code Annotated, §13-7-207 provides BZAs with two basic general powers:
(1) Make special exceptions to the terms of the zoning regulations in harmony with their general purpose and intent.
(2) The chief legislative body may also authorize BZA to interpret zoning maps and pass on disputed questions of lot lines or district boundary lines as they arise in the zoning regulation context.
The same statute provides BZAs several specific powers:
(1) Hear and decide appeals claiming error in any order, requirement, permit, decision, or refusal by any zoning enforcement official.
(2) Hear and decide (in accordance with the zoning or other ordinance) requests for:
(a) special exceptions
(b) interpretation of the zoning map
(c) decisions on other questions
(3) Hear and decide appeals for variances from the strict application of the zoning ordinance on the grounds that the strict application would by reason of
(a) Exceptional narrowness, shallowness or shape of a specific piece of property at the time of the enactment of the zoning regulation, or
(b) other extraordinary and exceptional situation or condition of such piece of property, the strict application of the zoning regulation would result in
(1) Peculiar and exceptional practical difficulties, or
(2) Exception[al?] or undue hardship, upon the owner of the property.
(4) Such relief must be given without substantial detriment to the public good and without substantially impairing the intent and purpose of the zoning plan and zoning ordinance.
Limitations on the Power and Authority of BZAs.
The chief legislative body cannot give BZA more power than it is given under the enabling statute governing the BZA. In Father Ryan High School v. Oak Hill, 774 S.W.2d 184 (Tenn. App. 1988), the City of Oak Hill's BZA denied Father Ryan High School a permit to build a high school. It relied on a provision of the Oak Hill zoning ordinance that gave the BZA the power to make a "determination that the establishment or operation of such school is consistent with the general welfare, safety, morals and health to the community, after taking into consideration the letter and spirit of this ordinance." [the zoning ordinance]. That provision was void, declared the Tennessee Court of Appeals because a municipality cannot give a BZA more power than it has under its enabling statute. In this case the high school otherwise met all the requirements of the zoning ordinance.
The BZA has no authority to review planning commission site plan decisions. In Whittmore v. Brentwood Planning Commission, 835 S.W.2d 11 (Tenn. App. 1992), the Tennessee Court of Appeals rejected the claim of a citizen's group that a BZA had such authority with respect to a shopping center development approved by the planning commission.
The BZA cannot act "arbitrarily or capriciously." In Hunter v. City of Gallatin Board of Zoning Appeals, 1991 WL 20383 (Tenn. App.), the Gallatin zoning ordinance permitted mobile home parks in a certain district as a conditional use. The BZA denied Hunter a conditional use permit for that purpose. The chancery court overturned the BZA and the Tennessee Court of Appeals upheld the chancery court. Said the Court,
A 'conditional use' is a permitted use which a zoning ordinance authorizes under certain conditions... [Citation omitted]. The granting of a conditional use is a duty imposed upon the Board of Appeals provided that the proposed use complies with all the conditions set forth in the ordinance.
In Gregory v. Metro. Board of Zoning Appeals of the Metro. Gvt. of Nashville and Davidson County, 1991 WL 17174(Tenn. App.), it was held that
If an applicant satisfies all of the conditions of a zoning ordinance, his application for a conditional use must be issued. [Citation omitted] Speculations, expressions of fears and considerations of esthetic or political nature do not form a basis for a decision.
However, with particular respect to the question of granting variances for single-wide mobile homes, it was held in McClurkan v. Board of Zoning Appeals, 565 S.W.2d 495 (1977) that the BZA is not entitled to grant a variance when
... the only hardship to the owner in complying the zoning regulations is the result of a condition existing not in the land itself but in a structure which was created or altered by an owner of the property in violation of the zoning ordinance. Also the case for a variance here is made even weaker by a lack of any evidence of a hardship other than pecuniary loss, which has been held insufficient by itself to justify a variance.
There the plaintiff bought a four dwelling apartment located in an area zoned for one and two family dwellings. He applied for, and was denied a variance by, the BZA. Citing the statute governing the conditions under which a BZA can grant a variance, the Tennessee Court of Appeals upheld the denial of the variance. In so concluding, the Court declared,
[W]e wish to point out that we do not hold that improvements constructed on the property or even the personal ownership of an applicant may never be considered in deciding whether or not to grant a variance. We do say, however, that both the statute and the ordinance controlling here make characteristics of the land itself [the court's emphasis] the overriding criteria by which the Board is to decide the issue of hardship to an owner. It may be that in some cases other factors presented by a variance applicant would be closely related to these criteria, and that the Board would be justified in considering them. In the instant case, however, unique features of the land itself were entirely lacking, and any hardship concerned only the conditions of the house which was bought about by an owner of the property in violation of the zoning ordinance, so that the Board exceeded its authority in granting the variance... [McClurkan]
Section 14-905 of the Municipal Code (Proposed) contains the powers of the BZA. It likewise makes the characteristics of the land itself the overriding criteria by which the BZA is to decide the issue of hardship to an owner of property. In fact, it generally tracks Tennessee Code Annotated, section 13-7-207 on that point.
It also seems to me that the practical effect of many illegal variances is often spot zoning, which itself is generally illegal. [See Fallin v. Knox County board of Commissioners, 656 S.W.2d 338 (1983), Grant v. McCullough, 270 S.W.2d 317 (1954), Crown Colony Homeowners v. Ramsey, 1991 WL 148058 (Tenn. App., 1991.)] The courts will not lightly interfere with either the legislative act of zoning property or the administrative decisions implementing a zoning ordinance. [See Whittmore, above.] However, spot zoning is a product of an actual amendment to the zoning ordinance or zoning map, a legislative act on the part of the municipal governing body. Illegal "spot zoning" done by variance is the product of a BZA, an administrative act which has the practical effect of amending the zoning ordinance or zoning map, action clearly beyond the authority of a BZA. That distinction seems to me important in concluding that the courts are more likely to question the action of a BZA that has the effect of amending the zoning ordinance or zoning map than they . As McClurkan makes clear, the primary focus of the BZA should be on the "unique" features of the land in question.
In any case the BZA grants a variance for a mobile homes (or for any other structure or land use) and the variance does not rely upon the above law, the act of the BZA is apparently ultra vires. In McClurkan, the Court answered McClurkan's claim of discrimination based on the fact that the BZA had granted the previous property owner a variance by saying, "
... we have already shown that the permit granted Ms. Smith was beyond the Board's authority and therefore void. Finally, denial of the variance to appellant can hardly be termed arbitrary. On the contrary, just as the Board exceeded its authority in granting a permit to Ms. Smith on the facts presented here, as explained above, so it would have exceeded its authority had it granted one to appellant for the same reason. Denial of the variance to appellant thus was not arbitrary, but was required by the governing statute and ordinance on the facts here presented. [Emphasis is mine.]
Whittmore, citing Father Ryan High School, also said, "The board of zoning appeals authority extends only so far as state law permits...It cannot be extended by the city commission or by implication."
Needless to say, in cases in which it decides to challenge the BZA and the property owner who had obtained a variance, the city would need to have a solid case that the grant of the variance exceeds the BZA's authority.
Sidney D. Hemsley
Senior Law Consultant