Monday, May 13, 2013

TNCPA §208(b)(1): Continuation of the Non-Conforming Property

We spoke last time about the Tennessee Non-Conforming Property Act, Tenn. Code Ann. §13-7-208 (b)-(l), which I abbreviate as TNCPA. We noted that it applies both to cities and counties, and that a non-conforming property runs with the land so that each subsequent owner has the right to continue if s/he so chooses. Finally, we also noted that for the most part, the TNCPA applies only to commercial and industrial businesses.

Today, we’ll simply discuss the first important section of the statute. Note that Tenn. Code Ann. §13-7-208 (a) is a general enforcement provision which was part of the original Tennessee Zoning Enabling Statutes. In 1973, the Tennessee General Assembly added the TNCPA, beginning with §208(b). by the way, originally subsection (b) was comprised of only one paragraph. In recent years it was amended to add an additional subsection (2), which we will discuss later on in this series.

Overall, the statute allows a non-conforming property to continue under subsection (b)(1), to expand under subsection (c), and to demolish and reconstruct the entire facility under subsection (d)(1). Each of these provisions has its own level of detail. Let’s start with the easy one.

Section 208 (b)(1) allows the continuation of the non-conforming property. Presumably, because of the background of the legislation, continuation also permits replacement of deteriorating structures, substitution of new and/or more technically advanced components, and other changes which have the purpose and effect of maintaining the non-conforming property. This is quite different from other states where replacement, especially of structural components, is normally not permitted because ultimately, it is hoped that the non-conforming property will become so badly deteriorated that the owner moves it to a new location where the zoning permits it. In Tennessee, the owner need not do that. The owner has the right to continue the non-conforming activities on the property and at least impliedly, that means that he has the right to maintain the non-conforming property, repair the non-conforming property, and replace components of the non-conforming property. In fact, §208 (g) (2) & (3) both refer to alteration, renovation, and refurbishment of non-conforming properties. That makes it very clear that the Tennessee General Assembly intended that a non-conforming property could continue under subsection (b) (1), including the right to make alterations, renovations, repair and refurbish. It's simply a part of the right to continue the non-conforming property.

For example, suppose the property is in the floodplain of a 500 year event, and is damaged by a large storm. The damage does not require total replacement of the building, but significant renovation is required. Because the owner is not destroying and replacing his building, but only repairing damage done by the flooding, it seems most likely that §208(b)(1) would apply. Certainly, it seems highly probable that the General Assembly intended this type of renovation to be permitted as a continuation of the business activity, especially where the next two sections allow expansion of the business activity including the construction of additional facilities, and the total demolition and total reconstruction and replacement of those facilities. Of those latter to options are available, then certainly renovation after a natural disaster which surely seen within the ambit of §208(b)(1).

It would also seem that this section or alternatively, subsection 208(d)(1) would protect the property owner where a fire or other natural disaster partially destroyed the property. There are many local government zoning regulations which attempt to restrict the right of the owner to reconstruct under circumstances involving a natural disaster or fire. Surely, to the extent that those regulations are based upon the zoning enabling statutes, the Tennessee Non-Conforming Property Act overrides those provisions and permits the reconstruction, repair, and renovation. But not expansion: §208 (c) does that and we’ll talk about that in our next post.

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