Friday, May 17, 2013

TNCPA §208 (f) and (j): Special Exemptions

We have now reviewed the three main sections of the Tennessee Non-Conforming Property Act, Tenn. Code Ann. §13-7-208 (b)-(d). There is one additional section of great importance subsection (g), but we will defer discussion of that subsection for a few posts.

Today we will talk about two subsections which provide exemptions from the applicability of the statute. Sections 208 (f) and (j) are special provisions limiting the local governments to which the statute applies. Section 208(f) makes clear that sections (b)-(e) do not apply to “premier type tourist resorts” as defined by Tenn. Code Ann. §67-6-103 (a) (3) (B). Mainly, this means that those sections do not apply to Gatlinburg.

Section 208 (j) limits the applicability of subsections (g), (h) & (i) so that they do not apply to home rule municipalities. We will discuss the substantive impact of those subsections soon, but for now they relate mainly to discontinuation of the non-conforming property. There are few home rule municipalities here in Tennessee and they include some of the biggest cities in the state such as Memphis, Knoxville, and Chattanooga. Metro Nashville is a consolidated form of government but not home rule so that the limit does not apply to Nashville.  Of course, a home rule city may opt in to those provisions by action of its local legislative body. The other home rule municipalities are as follows:

East Ridge
Johnson City
Lenoir City
Mt. Juliet
Oak Ridge
Red Bank

This list is from the Municipal Technical Advisory Service (MTAS) website which can be found here.

Of course, these exemptions just make the application and enforcement of the statute that much more difficult.

There is another interesting question with regard to this subsection (j). Can a home rule municipality opt in to only one of these three subsections, or if it intends to opt in, must it opt in and accept all three? This is important because subsection (i) specifically requires that any structure rebuilt on the property must conform to the bulk regulations. It might be helpful for a home rule municipality to opt in regarding subsection (i) if you did not also have to accept the complexities of subsection (g). The same is true with regard to subsection (h) which limits the expansion of a billboard. But, if the home rule municipality must accept all three together, that makes the decision quite a bit harder. Generally speaking, both subsections (h) and (i) place restrictions on expansion and reconstruction. Subsection (g) seems to limit their applicability as we will describe in a future post. But if you could adopt subsection (h) and (i) without adopting subsection (g), that might be a favorable position for a home rule municipality. In that way, the municipality would get the limitations on expansion and reconstruction, but not have to deal with the complexities and confusion which seemed to surround subsection (g).

In our next entry, we will briefly discuss TNCPA §208 (e), which restricts expansion of any non-conforming  property  beyond the land at the time the property became non-conforming.

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