In order to establish a non-conforming use, must the property owner demonstrate compliance with the business licensing laws? In Oregon, the answer is evidently no. In Morgan v Jackson County, 290 OR App. 111 (February 7, 2018) the court reversed a zoning board decision finding that an “auto yard business” located in a zoning district for agricultural use was not legally non-conforming because it did not comply with the dealer-licensing statutes of Oregon.
The court, relying on statutory authority, construed the statute and its use of the phrase “lawful use” to include only land use laws. Therefore, the fact that the owner of the property did not have a business license to engage in the operation of the business at the time that the operation began was not relevant to the land use issue. As a result, the zoning board decision finding no non-conforming use was reversed.
The Tennessee statute, Tenn. Code Ann. §13-7-208, augurs in precisely the opposite direction. For example, §208 (b), (c) & (d) allow “industrial, commercial, or other business establishments in operation and permitted to operate under zoning regulations or exceptions thereto immediately preceding a change in zoning…” to continue and expand. §208(d)(1). In Toles v City of Dyersburg, 39 S.W. 3d 138 (Tenn. App. 2000) the court concluded that because a tavern operator had lost his beer license immediately before the change in zoning took place and therefore could not legally be “in operation” that the property was no longer legally non-conforming. The court found nothing involuntary about the cessation of operations of the tavern and found the property was not legally non-conforming as a result.
I suspect that we will see other cases arguing this point here in Tennessee. However, the “in operation” provision of our statute, as applies to commercial and industrial uses, makes the argument much more difficult than in other states, such as for example Oregon.
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