County’s effort to limit appeals to BZA is back

Nick Della VolpeFeature

What the heck is going on here? Should We the People have a voice in life-changing development decisions? Or does big money talk loudest in Knox County?

An ordinance will be heard by Knox County Commission on Monday, July 25, (item no. 0-22-66-104), to require concerned citizens to shoulder the burden and expense of court lawsuits rather than pursuing a simple administrative appeal to the local Board of Zoning Appeals to challenge approval of a development plan … before the bulldozers start rolling. Such projects often have large tax, traffic, runoff, school crowding and other impacts on a community that should be aired.

Good, bad or indifferent, public participation is important to informed government decision-making. If that takes additional time, that’s the price of real progress. The public tax burdens, and need for corrective action, will be realized for years after the builder has cashed out.

How did we get here? Hopefully, we’ll not get lost in the background details.

This spring, Knox County Mayor Jacobs was apparently urged by developers to cut public participation out of the review of development plans. With the help of the county law director, he tried in May to read out BZA jurisdiction over complaints about development plan approvals. Jacobs and Law Director David Buuck argued BZA oversight was limited to “use on review” decisions … and this ain’t one.

Jacobs said the current housing crisis requires speed in approving development plans. Betty Bean countered with a column in Knox TN Today. Bean called it “trickle-down housing,” asking how it helps a family living in its car to cram more houses on ever smaller lots in Hardin Valley?

The commission went along with Jacobs’ approach on first reading, despite opposition from Commissioner John Schoonmaker, but state law and court decisions seemed to make that a questionable approach. Such governmental approvals give rise to a right of appeal by aggrieved parties.

So, the administration and/or its legal team revised the draft. The draft, which passed out of the commission workshop on July 18, allows an appeal to the BZA, but the developer can simply opt out – by sending a certified letter to the Knox County Law Director and the complainant, they can force an objector to file a lawsuit instead.

Huh? He’s appealed to the BZA. The case is there. Now he has 30 days from the certified mailing date (not actual receipt) – roughly 23 days – to find a lawyer and pony up at least $25,000 to prepare and file a formal lawsuit. Good luck, frazzled neighbors. The bar has been raised. That creative twist is what is on the commission’s Monday, July 25, agenda.

A deeper peek at backroom review. Even before this end around to a BZA appeal, efforts had been made by former MPC director Gerald Green, while overhauling local zoning laws, to make development plan approval the sole province of planners and developers (whose review fees help support the planners’ budget). Who needs those pesky neighborhood naysayers? The professionals can handle this. Construction permits could be issued before any real public vetting.

Of course, there has always been the right to appeal. Yet, if post-approval challenges to BZA are now frustrated by the proposed forced-court-appeal process, it’s a done deal. Courts are deferential to administrators. Courts don’t rethink plans. Courts just look for some factual support in the record. The BZA can actually hear new evidence in order to act on an appeal.

The present system works. And the burden is small. Former BZA commissioner Kevin Murphy reports that in the past 14 years, there have only been 16 county BZA appeals of such use-on-review decisions. Of those, all but 5 were successfully resolved by BZA. Over 70% of those appeals thereby avoided costly court battles.

Shouldn’t the public business be done in the light of day? With citizen involvement? Such added comments might engender constructive changes to the development plan, protect the public safety and save taxpayer dollars.

We need to keep participatory government open.

Sadly, money often talks louder than common sense. Speak up. You can contact your county commissioner here. Speak at public forum here. Read the proposed draft with amendment here.

Nick Della Volpe is a lawyer, a gardener and a former member of Knoxville City Council.

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