The Tennessee Supreme Court released its opinion in Smith County v Hiwassee Village Mobile Home Park, Tenn S Ct, Jan 22, 2010 today, and it is quite an interesting decision. The Court of Appeals decided this case back in 2008 and concluded that the mobile home park was not a commercial use within the meaning of Tenn. Code Ann. § 13-7-208, and was not therefore legally non-conforming. The Court also concluded that the use of the park had not begun as of the time effective date of the zoning ordinance in Smith County and therefore, it was not entitled to protection under the statute.
The Supreme Court disagreed with the analysis, finding that the mobile home park was indeed commercial, and devotes a good deal of analysis as to why that conclusion is correct. In the end the court concludes however that the trial court was correct in finding that the use was not established before the zoning was enacted and because of that failure, the statutory protection is unavailable.The end result is that the Court of Appeals decision was affirmed.
The Supreme Court first did a little housekeeping. Although it seems too obvious to require a holding, and perhaps for that reason there is a dearth of rulings on this point, the Court made clear that the right to continue the use runs with the land and benefits a subsequent purchaser. "The trial court correctly found that, if the mobile home park were a prior conforming commercial use, the right to continue that use after the effective date of the Private Act would run with the land and benefit Hiwassee LLC as a subsequent owner." Footnote 13. This ruling is a welcome one. Although scarcely anyone would argue to the contrary, it is an important point and a Supreme Court ruling to that effect makes plain what most land use attorneys had always assumed.
The Court also laid to rest another nagging issue. Does the Non-Conforming Property Statute, Tenn. Code Ann. § 13-7-208, apply to both municipalities and to counties, or only to the former? The statute itself is found in the municipal section of the zoning enabling legislation and for that reason some courts held it only applied to cities. In more recent years, the Courts have held that the statutory protection applies to both governmental entities, because the actual language appears to apply to both. However, the Supreme Court had never ruled and the issue remained a littl cloudy.
Justice Clark clarified the state of Tennessee law, holding that the statute applies to both types of local governments, relying principally on the language of the statute. That seems the most appropriate conclusion and this issue now seems resolved fully and finally.
I was somewhat surprised that the Supreme Court reached the conlusion that it did with regard to mobile home parks. It seems more appropriate to look at the end use, and not what the owner of the property considered the use as. Here, the end use is residential. Therefore, the statute would seem inapplicable, as the Court of Appeals had ruled. Justice Clark reviewed the history of mobile homes; "Commentators, and most courts until very recently, have agreed that '[a] mobile home court is a commercial venture.'" Sl Op at 12, citing Young's Anderson's Law of Zoning.
It is true that the parties (including the government) had agreed that the use was commercial. It is hard to understand why the government conceded such a position. In any event, it seems clear that the Court could simply refuse to accept such an agreement. The Court specifically mentions that it expresses no opinion on apartments or duplexes, but surely the Corut would find an apartment house as residential. And if so, why not mobile homes?