One of the criticisms of SP zoning here in Metro Nashville has been its seeming refusal to acknowledge non-conforming properties. Tennessee state law, which trumps local Metro ordinances, expressly provides that non-conforming properties may continue, may expand and may rebuild. Tenn. Code Ann. 13-7-208. SP zoning seemed to deny that state given right.
Yesterday evidently, Jon Cooper, the attorney for the Metro Council, reviewed the SP zoning along Gallatin Pike and concluded that the criticisms were well founded. Frankly, there wasn't much doubt. Jon simply applied black letter Tennessee zoning law and came up with the correct conclusion.
The interesting issue is whether the entire scheme of SP zoning is illegal. It is not authorized by Tennessee law anywhere; it is basically an entirely new way of applying zoning principles and there is little in the way of public notice as to what is going on in the back rooms where the negotiations take place concerning the "specifics" of any particular plan. It appears to be contract zoning (although I have always argued that contract zoning should be legal and this does not concern me so much). Finally, to the extent that Metro can be considered a county, it violates the uniformity provision of the county zoning enabling legislation here in Tennessee.
There has been one challenge that I'm aware of, but I believe the local Judge upheld it. If the case goes up on appeal, it might serve as an interesting review of some basic zoning and land use principles. The most important of which is to obtain state authorization for local innovation. Metro has not done that. It should be required.
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