Daily Development for Tuesday, October 16, 2007
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

ZONING AND LAND USE; BUILDING PERMITS; PENDING LEGISLATION DOCTRINE: The pending legislation doctrine, which authorizes a city to withhold action on a legally permitted building permit where pending land use legislation may restrict such issuance, applies only where an amendment to a zoning ordinance that would prohibit the use of land for which the permit is sought is sufficiently pending at the time of the permit application.  Consideration by a city advisory committee is not sufficient to qualify the proposed change as pending.

Harding Acad. v. The Metro. Govt of Nashville & Davidson County, 222 S.W.3d 359 (Tenn. 2007). 

Harding Academy, a private elementary and middle school, acquired 11 residential lots near its campus in an attempt to expand.  In 2003, Harding asked the Metropolitan Government of Nashville & Davidson County Board of Zoning Appeals to grant recreation center status to its properties.  A neighborhood group challenged the interpretation of a Metro official that use of the properties qualified as a recreation center under local zoning codes.  At the request of a city councilwoman, Harding withdrew its application in March 2003 in order to attempt to reach an amicable resolution of the dispute.  When no resolution was reached, the councilwoman filed an application on behalf of the neighborhood in April 2003 to have the area surrounding Harding declared a neighborhood conservation overlay district. 

In May 2003, Harding applied to the Metro Department of Codes Administration for permits authorizing the demolition of nine structures on the residential lots.  The Codes Director issued the requested permits on May 6, 2003.  Two days later, the Codes Director notified Harding that he was revoking the permits pursuant to the pending legislation doctrine, which provides that a building permit need not be issued if an amendment to a zoning ordinance that would prohibit the use of land for which the permit is sought is pending at the time of the application for the permit.  Harding timely appealed the revocation of the permits.  On May 14, 2003, the Historic Zoning Commission approved the proposed zoning change, and the Metro passed the neighborhood conservation overly ordinance, which became effective July 19, 2003.  Upon hearing Hardings appeal on June 10, 2003, the Metro Board of Fire and Building Code Appeals voted to uphold the revocation of the demolition permits based on th
e Codes Directors argument that because there was legislation pending to place a historic conservation overlay on the properties, the Harding permits were issued in error. 

On July 29, 2004, the trial court reversed Metros decision, finding that the pending legislation doctrine was arbitrary and capricious, and ordering the Harding demolition permits to be reissued.  The Court of Appeals affirmed, agreeing that Metros revocation of the demolition permits was exercised in an arbitrary and capricious manner, but held that the trial court erred in holding Metro could not rely on the pending legislation doctrine.  A footnote in the Court of Appeals opinion stated that its holding should not be construed to mean that Harding Academy is now permitted to carry out its planned demolition of the structures on the property at issue.

Because of the confusion caused by this statement as to whether Harding could demolish the structures, the Supreme Court granted a further appeal to determine the propriety of Metros decision to revoke the demolition permits that were issued to Harding.  In discussing the pending legislation doctrine, the court noted that the purpose for the doctrine is to permit a city to amend its zoning ordinances without the threat of landowners racing to beat the clock by filing an application and obtaining vested rights under existing zoning regulations.  The court held that the doctrine is applicable in the contexts of both comprehensive zoning ordinances as well as specific ordinances such as the historic zoning ordinance at issue in this case. 

The issue here, however,  involved the point in time at which a zoning ordinance became pending for purposes of the doctrine.  While some jurisdictions require that the proposed change must be formally proposed and open to public inspection, others require only that the appropriate department of the city be actively pursuing an ordinance.  In this case,  the City Council person did submit an application for an historic overlay district and the matter was referred to the Historic Zoning Commission, which scheduled hearings, all before the school managed to reapply for the demolition permits. 

The appeals court held that the Historic Zoning Commissions activities were not sufficient to establish a pending zoning ordinance, as the zoning change had merely reached the application stage (proposing that the area be declared a historic overlay district), and had not yet been considered by the Commission or the City Council.  At a minimum, the Commission needed to recommend the historic conservation overlay designation to the Metro City Council before the demolition permits were issued in order to justify revoking the permits pursuant to the pending legislation doctrine.

Arguably, nonetheless the schools rights had not vested because Tennessee requires some reliance on a building permit in order to establish vested rights.  But the court held that the city had prevented any reliance by the school when it quickly withdrew the demolition permits after issuing them, and therefore could not now claim that the school had not shown reliance.  Had the permits not been withdrawn, the school would have relied.

Comment: This is an old, old story that any experienced land use lawyer has lived through.  Some councilperson says lets talk, and then uses the delay to slip through a legal blockage so that when the talkings done, the developer is stymied.  Note that the permit apparently permitted the demolition of the buildings, but didnt necessarily give the school the zoning classification it needed to develop its campus as it wanted.  Sad standoff. 


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