Friday, November 30, 2012

McBride v Farragut BZA

McBride v. Farragut Board of Zoning Appeals, (Tenn App November 29, 2012)

The petitioning homeowner, lived in a residence constructed in 1971 with a raised concrete deck on the rear of her home. In 2011, she submitted an application to erect columns and a roof over the existing deck. The local zoning ordinance permitted patios and decks and other non-roofed and on enclosed appurtenances to be placed within 10 feet of the side and rear property lines. On the other hand, the principal building had to be 25 feet away, and the zoning administrator concluded that putting a roof over the existing deck which converted into a part of the principal building and as a result would require it to be 25 feet away from the property line. Since the deck was roughly 18'7" away from the rear property line, a variance was necessary.

The homeowner applied for a variance to the board of zoning appeals but was denied because there was no evidence that there was any exceptional physical feature the property justifying relaxation of the 25 foot side and rear yard requirement.

On appeal to the trial court, the zoning board decision was reversed. The trial court felt that the pre-existing deck, as a part of the original principal structure, was basically exempt from the 25 foot rear yard requirement. The colloquy between Court and counsel is reprinted in the decision, and the court carefully asks whether or not the deck will be enclosed. It was not proposed to be enclosed.
The trial court determined that McBride’s raised, concrete deck constructed on the same foundation as the principal building is part of the principal building – not a patio, deck, or similar appurtenance as identified in the ordinance.
As a result the Court of Appeals upheld the decision of the trial court.

The city argued that the trial court’s decision was a strained interpretation of the zoning regulations, and it seems to me that that argument is probably not far from the mark. The applicant here was an elderly woman who was suffering from skin cancer. That was the reason for the roof in the first place. Certainly, some sympathy for her personal plight may have ultimately affected the rationale of the court.

Another interesting facet of this decision is that if the property had been industrial or commercial instead of residential, it would have been protected by the Tennessee Non-Conforming Property Act, Tenn. Code Ann. §13-7-208. And under subsection (c), any nonconforming property may be expanded. So interestingly, a nonconforming commercial or industrial structure could be expanded, by adding new columns and a roof let's say, but this residential structure under the terms of the zoning board decision, could not be so expanded. Is the impact of adding a few columns and a roof to existing deck really that significant in terms of the impact on the surrounding property owners? Most likely, such addition in a commercial or industrial arena would be much more intense, yet it is protected statutorily.

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