Non-Conforming Uses: Owner's Intent

I have an interesting argument coming up in Davidson County Chancery Court, Part I, this morning. The case, Richland Creek Watershed Alliance v Metro BZA, is an appeal from a decision of the Metro Board of Zoning Appeals, where they agreed that my clients property on Charlotte Avenue was legally nonconforming for a used car lot. The interesting aspect of the case is that it focuses on a provision of the Tennessee Non-Conforming Property Act, Tenn. Code Ann. § §13-7-208, which is rarely mentioned in any of the cases. This particular section, §(g) (4), provides that “the restrictions of this subsection… shall only apply if the property owner intentionally and voluntarily abandons the nonconforming use of the property. In any contested matter on the use of such property, the government has the burden of proving an overt act of abandonment in such matter.”

In our case, it was clear before the Board of Zoning Appeals that the owner never voluntarily or intentionally abandoned the nonconforming use. Furthermore, there was really no proof of any overt act of abandonment. On the other hand, nonconforming use cases rarely addressed this particular aspect of the statute, and so this case will be unusual in that way. It will be interesting to see what the Chancellor rules, and how she approaches the language of the statute. It seems relatively clear, but certainly reasonable people can differ about interpretations on what seems to be rather straightforward legislative language.