Non-Conforming Uses: Digital Display Billboards

Next Monday morning there is scheduled another interesting argument concerning nonconforming uses  before the Davidson County Chancery Court, Part I. In this case, the Metro Board of Zoning Appeals considered and declared that a billboard located adjacent to the Corky’s barbecue near Brentwood was legally nonconforming notwithstanding the fact that it converted from a standard billboard sign to a digital display.

The Tennessee Non-Conforming Property Act, Tenn. Code Ann. § 13-7-208 (c) permits a structure or building to expand as needed for business purposes. This type of expansion, from a standard to a digital display, seems to fit nicely within the code provision.

Metro itself has appealed the decision in the case. One wonders first, how the Metropolitan Government can appeal a decision of its own zoning board, but we have discussed that issue in connection with my case involving the Mooneyhans previously here.

Second though is the substantive issue: Metro contends that the prohibition of digital displays is not a zoning regulation and as a result, the protections of the Tennessee Non-Conforming Property act do not apply. The difficulty with Metro’s argument is that the regulations concerning digital displays on billboards are in the zoning ordinance. It seems to me much harder to argue that it’s not a zoning regulation when the regulation itself is contained in the zoning ordinance.

Metro makes something of a novel argument, relying on cases where regulations which were not contained within the zoning regulation but which function as zoning regulations have been held to be zoning regulations and subject to the protections of the Tennessee Non-Conforming Property Act. One of those, is a case I tried several years ago, Metro v Buchanan, where the Tennessee Court of Appeals construed the Metro Property Maintenance Standards as applied to Mr. Buchanan’s property, as a zoning regulation and since Mr. Buchanan had been utilizing his property for more than 50 years, before the adoption of the Property Maintenance Standards, the Tennessee Non-Conforming Property Act protected against the regulation of his property by those standards.

But it’s one thing to apply that doctrine to non-zoning regulations which appear to work as restrictions on the use of property and appear to be zoning regulations in effect, and another entirely to take a regulation in the zoning ordinance and say that it’s just a general health, public safety and welfare regulation, not a zoning regulation. The argument appears to be that MetZo §17.32.050(h)(2) is not a zoning regulation. But the language of the regulation belies that assertion:

The following signs are expressly prohibited:
LED message boards and digital display signs in the AG, AR2a, R, RS, RM, RM-A, MUN, MUN-A, MUL, MUL-A, MUG, MUG-A, ON, OL, OG, OR20, OR20-A, OR40, OR40-A, CN, CL, SCC and SCN districts, except for time/temperature/date signs.

So, in the zoning districts referenced above, digital display signs are not permitted. But there are several remaining districts which are not covered by the prohibition, including all industrial, and several commercial, and also downtown districts. It is extremely difficult to argue that the above-referenced section of the zoning ordinance is not a zoning regulation since it expressly refers to some of the zoning districts established by the zoning ordinance, but not all of them. This is the epitome of what a zoning regulation is: you’re allowed to do digital displays in some districts and not others. That is exactly what zoning is all about.

As a result, the argument that the Corky’s billboard is not legally nonconforming seems to underestimate the policy and power behind the Tennessee Non-Conforming Property Act, which as I mentioned above, seems to apply directly to this type of case.

This should be an interesting decision. It will be an important decision, because it will have an impact on digital displays all over Davidson County, and perhaps, if the case is appealed, all over the state.