This case involves a small business operating out of the owner’s home in Murfreesboro. After a zoning enforcement action was brought against the owner, he filed for a special exception to operate a major home-based business. The property is zoned residentially, is bordered by other single-family homes located in a cul-de-sac.
Approximately 20 neighbors appeared in opposition at the board of zoning appeals and based both on the neighbors’ testimony as well as the staff report, it appeared that a significant number of trucks and business vehicles operated from the residential property, that there was a considerable amount of noise both early in the morning and late evening, the number of employees and vehicles exceeded what was permitted by the specific conditions for the special exception, and the general incompatibility of this fairly significant business in a quiet residential neighborhood.
The zoning board denied the special exception for three reasons, first because of the general incompatibility of the neighborhood; its potential adverse effect on the neighborhood and finally because they were more employees and permitted by the specific conditions.
The trial court upheld the decision of the board of zoning appeals and the Court of Appeals affirmed.
This is a pretty simple case in that clearly the application did not comply with the specific conditions of the provisions in the ordinance relating to a major home-based business. However, I think it is important to distinguish between general conditions and specific conditions when dealing with a special exception. For the most part, general conditions are so general that it is difficult to apply them with any precision. That’s why at least one court in Tennessee has previously held that the general conditions are largely irrelevant in consideration of a special exception or conditional use permit case. In fact, the general conditions in the Rutherford County ordinance are pretty similar to virtually all other general conditions which I see herein the middle section of Tennessee and read as follows:
C. General Requirements
A special exception shall only be granted provided the Board makes specific findings that it:
1. Is so designed, located, and proposed to be operated so that the public health, safety and welfare will be protected;
2. Will not adversely affect other property in the area in which it is located;
3. Conforms to all applicable provisions of this ordinance for the district in which it is to be located and is necessary for public convenience in that location and if applicable, meets the specific standards below.
4. Shall be located so as to be compatible with the surrounding area and provide safety to those using the facility.
In this instance, the intensity of this home-based business clearly is incompatible with residential uses. It would also have an adverse effect on the other property in the area. But while that is true in this instance, in many cases, those two requirements are so vague as to prove impossible to apply. In most of the special exception cases I’ve tried over my many years in practice, those general conditions are simply not very helpful. Take a quick example. Suppose you have an unusual activity such as a landfill or a rock quarry. Are those ever compatible the surrounding area and will they always adversely affect other properties? Nevertheless, in a special exception case, the local legislative body has indicated that those types of uses can be in certain zoning districts subject to meeting the requirements associated with that special exception. To use general conditions that are so vague as to defy specific application simply begs for the zoning board to make decisions based not on specific requirements but on things that may have no relevance to the land use application.
On the other hand, the next section of the Rutherford County zoning ordinance provided a specific limit on the number of employees and on the number of business vehicles. The applicant was already in operation and had too many employees and too many vehicles. The application therefore did not comply and while it is certainly easy and seems reasonable to point to the fact that the general conditions appear also to be violated, it seems to me far better to emphasize the violation of the specific conditions contained within the ordinance.