Monday, May 20, 2013

TNCPA §208(e): No Expansion on After-Acquired Property

In our last post, we discussed two of the principal exceptions to the Tennessee Non-Conforming Property Act, Tenn. Code Ann. §13-7-208, specifically subsections (f) and (j). To summarize, the act simply doesn’t apply to a premier type resort city (Gatlinburg), nor do subsections (g), (h), and (i) apply to home rule municipalities. A list of those home roominess Pawleys is included with the last post.

In a similar vein, this post will briefly discuss a significant restriction on the generally favorable treatment given non-conforming properties by the act. That restriction is found at TNCPA §208(e), which reads as follows:

Subsections (b)-(d) apply only to land owned and in use by such affected business, and do not operate to permit expansion of existing industry or business through the acquisition of additional land.

Therefore, while a non-conforming property is permitted to continue, including replacement and repairs, as desired under subsection (b)(1); to expand, including the construction of additional facilities under subsection (c); and to destroy and rebuild under subsection (d)(1); the continuation, expansion, or reconstruction cannot take place on after a acquired property. Once the property becomes legally non-conforming, purchase of any additional property cannot be used in a manner which expands the non-conforming activities.

There is a case directly on point. 421 Corporation v Metro Nashville, 36 SW 3d 469 (Tenn. Ct. App. 2000), involves the proposed expansion of an adult entertainment establishment (“The Purple Onion”) located at 2807 Nolensville Road in Nashville. The owner had purchased some additional property adjacent to the Purple Onion and wanted to expand the operations of the establishment into the adjacent buildings. The city refused issue a permit, and on appeal to the Metro Board of Zoning Appeals, the denial was upheld. An appeal was taken to Davidson County Chancery Court where the zoning board decision was affirmed, and the same result was obtained before the Tennessee Court of Appeals.

The owner’s argument was that his application was made pursuant to the Metro Zoning Ordinance and its language was less restrictive than the state statute. Judge Koch, writing for the court, concluded that the territorial restriction was mandatory and that even if the local ordinance could be interpreted so as to permit such an expansion it conflicted with the state statute and was not permissible. As a result, the decision of the lower court and the zoning board were both upheld.

As a final footnote, this subsection (e) was part of the original 1973 Tennessee Non-Conforming Property Act. The original act was comprised, generally speaking, of what is now §208 (b)(1), (c), (d)(1), and (e). In addition, with regard to both subsections (b) and (d), additional language was later added which necessitated new numbered paragraphs. In each instance, the retained paragraph became (1), and the new language is included in the paragraph marked (2). In the case of subsection (b), the newly added language deals with off-premise signs and in the case of subsection (d), the newly added language deals with multifamily residential land use.

In our next post, we’ll take a look at a couple of provisions of the act which are not used all that often.

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