International Municipal Lawyers Association - Local Government Blog

It Doesn’t Have to Be Kumbaya, But …

Posted By: Dwight Merriam, Partner, Robinson & Cole

A weblog on land-use law ought to serve at least two purposes: provide readers with up-to-date high level precedent and guidance from around the country, and at times bring to the forefront decisions of largely local interest that still serve to help us in our practices. This week’s posting is in that latter category.  Maybe it also can be filed under “there-but-for-the grace-of-God-go-I”…

I spend considerable time in my work with local boards and commissions helping them understand how to develop good records which properly document the careful consideration given to applications and the rationality of the decision-making process.  Our favorite exercise is a due process script with over 50 embedded errors that commissioners act out and then critique. The idea is to create sensitivity to avoid public hearing verbal pratfalls. One issue we discuss is what can happen when intemperate remarks are made on the record by commissioners who let their emotions override their objectivity.

Last Tuesday, Judge Joe P. Binkley, Jr. of the Fifth Circuit Court for Davidson County, Tennessee, entered his “Order Granting a Writ of Certiorari and the Issuance of a Special Exception Permit with Limitations and Restrictions” in the case of Demonbreun v. Metropolitan Board of Zoning Appeals of the Metropolitan Government of Nashville and Davidson County. Click Here for a copy of the decision which so far as I know is not available elsewhere.

I read about the decision in The Tennessean on March 7, 2009: “Judge: Zoning board rejected man’s request because it didn’t like him.” Click here for a copy of that article.  I e-mailed the plaintiff and he graciously provided me with a copy.

Richard Demonbreun runs the historic Timothy Demonbreun House as a bed and breakfast and place for special events.  Here is a picture of the house from the website.

Mr. Demonbreun applied for a special exception permit to allow him to host Historic Home Events at the Timothy Demonbreun House.  The application was denied with five board members voting against it and one abstaining.

Apparently, there was some “history” between Mr. Demonbreun and the Board of Zoning Appeals.  The decision contains excerpts from the transcript and to get a true sense of the adversarial relationship you should read all of those excerpts. They culminated with one of the board members saying: “so ah, I just need some more convincing, I guess from you. And I, I ah, wouldn’t mind hearing why you appealed the case before, what drove you to do that, after you specifically told us you weren’t going to do that… You took it above us. I have no trust that you won’t do that again.”

Judge Binkley held that the four board members “…had ulterior motives for denying Mr. Demonbreun’s permit application. Those four board members’ ulterior motives stem from the fact that the Petitioner has appealed their decisions in the past and that Mr. Demonbreun has frequently appeared before the Board regarding a special use permit. … [T]he real motive for the Board’s ultimate decision in this case is their clear dislike of the Petitioner as evidenced by the above referenced statements, comments and questions by four of the board members.”

Judge Binkley ordered the approval with 10 conditions.  Metro hasn’t decided whether to appeal.

The house is in foreclosure.