Friday, May 10, 2013

The Tennessee Non-Conforming Property Act

One of the most interesting aspects of land use planning law in Tennessee is the Tennessee Non-Conforming Property Act, Tenn. Code Ann. §13-7-208 (b)-(l). The TNCPA is outrageously complicated and it cuts against the interests of most local governments. That is, it allows non-conforming properties, those properties which do not comply with the local zoning regulations because they legally predate them, to remain almost in perpetuity. In most other states in the country, non-conforming properties are greatly restricted with a view towards eliminating them entirely. Here in Tennessee, the General Assembly decided in 1973 that non-conforming properties could remain, could expand, and even tear down and replace old facilities as necessary for the continuation of the business.

Over the next week or so, I hope to discuss the statute in some of its ins and outs. There are four important points to be made in this first entry.

First, the TNCPA applies both to municipal and county governments. Although it is codified as though it only applies to municipal governments, the Supreme Court has held that it applies to both. Smith County Regional Planning Commission v Hiwassee Village Mobile Home Park, 304 S.W. 3d 302, 311 (Tenn. 2010).

Second, the right to continue activities on non-conforming properties runs with the land and is not specific to any individual. As a result, upon the sale of the land to a new owner, the right to continue the non-conforming activity passes along with the property to the new owner. Smith County Regional Planning Commission v Hiwassee Village Mobile Home Park, 304 S.W. 3d 302, 310 (note 13) (Tenn. 2010).

Third, the TNCPA applies for the most part to commercial and industrial businesses only. It does not protect the residential use of land or other uses which may not be commercial or industrial. There is one specific provision which does protect multifamily residential, Tenn. Code Ann. §13-7-208 (d) (2), but the protections are rather limited. The TNCPA is most effective when applied to commercial or industrial properties.

Fourth and finally, because of the way the TNCPA has been amended over the years, and because the original legislation was obviously drafted by someone who did not work extensively in the area of land use law, the legislation in most of its sections appears to apply both to non-conforming land uses, and also to non-conforming (or as it is sometimes said here in Tennessee, noncomplying) structures. That is, if you have a business use which preexisted the effective date of the new zoning regulations, let's say a small convenience store, and which does not now, as a result of the new zoning regulations, comply, it is a non-conforming property and subject to the protection of the statute. Also, if you have a land use such as that same convenience store which continues to be legal under the new zoning regulations, but the store building is constructed, let's say hypothetically, too close to the street as a result of the new zoning regulations, the store building also is protected as a non-conforming property under the statute. There are several exceptions to this, but many of the provisions of the TNCPA apply both to use regulations as well as to both regulations. I simply refer to non-conforming properties, meaning thereby to encompass both types of non-conformities.

That’s enough for now. We’ll come back and try to take the statute section by section and discuss its implications for land use planning law.

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