TNCPA §208(c): Expanding NCFPs & Constructing new facilities

We’ve been talking about the Tennessee Non-Conforming Property Act, Tenn. Code Ann. §13-7-208, and in our last post, we talked specifically about §208 (b) which allows a non-conforming property to continue its non-conforming activities. Today, we’ll take a look at §208 (c), which allows non-conforming property to expand its operations and even construct additional facilities so long as there is no change in the use of the property.

Section 208 (c) allows the expansion of the non-conforming property, including the construction of additional facilities as desired for expansion. It is important to note that under this subsection, there is no requirement that the expanded facilities comply with other bulk regulations such as front, side, and rear setbacks. The expansion may go so far as desired so long as it does not create a nuisance to adjoining landowners. So, to the extent that there may be other regulations in the zoning ordinance which might restrict the expansion, those do not apply. This provision specifically prevents a local government from denying a building permit when a commercial or industrial business seeks to expand its current operations.

There is one important restriction on this right to expand: under §208 (h) off-site signs are not permitted to expand beyond certain dimensions specified in the statute. This section does make clear that the protective provisions of the act do apply to off-site signs, and it even defines such signs as “any sign that advertises or gives direction to any business, product, service, attraction or any other purpose or interest, other than the industrial, commercial or other business establishment located on the site where the sign is located.” Thus if you represent a sign interest, these restrictions are of significant importance.

Since §208 (h) limits only the size of off-site signs, presumably the expansion of an on-site sign is permitted without limitation, so long as the sign does not need to be destroyed and entirely rebuilt (see §208 (d) which we will discuss in our next entry). For example, if the structure holding the sign face aloft remains, and the sign face is replaced with a larger sign face, this would appear to be an expansion under §208 (c), and no matter how much larger the sign face of the on-site sign happens to be, it is permitted (unless it’s so big that it causes a nuisance to adjoining property owners).

Let’s take another example of the application of this section of the statute. Assume that you own a funeral home and while at the time of its initial construction, the property was owned for that use, the zoning is now changed in the mortuary is legally non-conforming. However, you want to expand the services provided by the funeral home by including cremation, which means that you will have to add a crematorium. Unfortunately, the local zoning ordinance does not allow a crematorium in the zoning district where you are located, just as it doesn’t allow the funeral home itself. In fact, a crematorium is permitted only in the industrial zoning district in your city. Does §208 (c) allow the expansion of the funeral home by the construction of a crematorium? It does.
Clearly, the funeral home is a commercial business establishment and also clearly under the terms of our hypothetical, it was in operation and permitted operate before the zoning changed making it legally non-conforming. Under those circumstances, §208 (c) says that the commercial business establishment “shall be allowed to expand operations and construct additional facilities which involve an actual continuance and expansion of the activities of the… business which were permitted and being conducted prior to the change in zoning…” Given the language of the statute, the only remaining question would be whether the construction of a crematorium involves a continuation and expansion of the mortuary services. Probably no one would disagree but that cremation is a mortuary service and thus the expansion is permitted. This is exactly what happened in BMC Enterprises v Mt. Juliet,  273 S.W. 3d 619 (Tenn. App. 2008; perm app den Oct 27, 2008). This case is interesting not just because it is a good example of the application of §208 (c), but in addition it involves what would seem to be a fairly significant expansion in the operations of the mortuary and significant construction of additional facilities. Finally, this was all done in the face of an outright prohibition by the city zoning regulations .

Finally, I cannot be emphasized enough that the expansion in business operations and construction of additional facilities must all relate to the same business use. If the use changes as a byproduct of the construction of additional facilities, then §208 provides no protection. A good example of this was a bed-and-breakfast in Winchester, Tenn., which applied for and received permission to expand its operations ostensibly to allow for modest dining facilities for guests and friends. The expansion however turned out to be a bar with live entertainment. The Tennessee Court of Appeals had no difficulty whatsoever in concluding that §208 offered no protection in the face of the change in use. Lafferty v Winchester, 46 S.W. 3d 752 (Tenn. App. 2000).


One final issue that is worthy of investigation here is by what standard is the land use evaluated. For example, in the Mt. Juliet case, should we look to the local zoning regulations to determine what a funeral home is, or should some other standard apply? The courts really haven’t reached a decision with regard to this issue, although in BMC Enterprises, the court did note that the local zoning regulations did not have a definition of funeral home, and as a result it looked to Tennessee state law for a definition.

Some land uses are defined in § 208 itself, such as the definition of off-site signs in §208 (h). Certainly it seems to me that since the Non-Conforming Property Act applies across the entire state of Tennessee (with certain limited statutory exemptions which we will review in a post later in this series), that there should be general definitions applicable across the state and not grounded in local zoning provisions. Otherwise, and expansion which is permitted in Mt. Juliet might not be permitted in Gallatin. Surely, this state limitation on local zoning powers should apply across local government boundaries to allow commercial and industrial businesses to continue operation, expand operations, and destroy and rebuild their facilities in like manner no matter where they are located. I’m sure that the Tennessee appellate courts will address this issue sometime in the not-too-distant future and will get an answer to this somewhat perplexing question.

Next time, we'll discuss §208(d) of the TNCPA, one of the most interesting provisions of the statute.

TNCPA §208(b)(1): Continuation of the Non-Conforming Property

We spoke last time about the Tennessee Non-Conforming Property Act, Tenn. Code Ann. §13-7-208 (b)-(l), which I abbreviate as TNCPA. We noted that it applies both to cities and counties, and that a non-conforming property runs with the land so that each subsequent owner has the right to continue if s/he so chooses. Finally, we also noted that for the most part, the TNCPA applies only to commercial and industrial businesses.

Today, we’ll simply discuss the first important section of the statute. Note that Tenn. Code Ann. §13-7-208 (a) is a general enforcement provision which was part of the original Tennessee Zoning Enabling Statutes. In 1973, the Tennessee General Assembly added the TNCPA, beginning with §208(b). by the way, originally subsection (b) was comprised of only one paragraph. In recent years it was amended to add an additional subsection (2), which we will discuss later on in this series.

Overall, the statute allows a non-conforming property to continue under subsection (b)(1), to expand under subsection (c), and to demolish and reconstruct the entire facility under subsection (d)(1). Each of these provisions has its own level of detail. Let’s start with the easy one.

Section 208 (b)(1) allows the continuation of the non-conforming property. Presumably, because of the background of the legislation, continuation also permits replacement of deteriorating structures, substitution of new and/or more technically advanced components, and other changes which have the purpose and effect of maintaining the non-conforming property. This is quite different from other states where replacement, especially of structural components, is normally not permitted because ultimately, it is hoped that the non-conforming property will become so badly deteriorated that the owner moves it to a new location where the zoning permits it. In Tennessee, the owner need not do that. The owner has the right to continue the non-conforming activities on the property and at least impliedly, that means that he has the right to maintain the non-conforming property, repair the non-conforming property, and replace components of the non-conforming property. In fact, §208 (g) (2) & (3) both refer to alteration, renovation, and refurbishment of non-conforming properties. That makes it very clear that the Tennessee General Assembly intended that a non-conforming property could continue under subsection (b) (1), including the right to make alterations, renovations, repair and refurbish. It's simply a part of the right to continue the non-conforming property.

For example, suppose the property is in the floodplain of a 500 year event, and is damaged by a large storm. The damage does not require total replacement of the building, but significant renovation is required. Because the owner is not destroying and replacing his building, but only repairing damage done by the flooding, it seems most likely that §208(b)(1) would apply. Certainly, it seems highly probable that the General Assembly intended this type of renovation to be permitted as a continuation of the business activity, especially where the next two sections allow expansion of the business activity including the construction of additional facilities, and the total demolition and total reconstruction and replacement of those facilities. Of those latter to options are available, then certainly renovation after a natural disaster which surely seen within the ambit of §208(b)(1).

It would also seem that this section or alternatively, subsection 208(d)(1) would protect the property owner where a fire or other natural disaster partially destroyed the property. There are many local government zoning regulations which attempt to restrict the right of the owner to reconstruct under circumstances involving a natural disaster or fire. Surely, to the extent that those regulations are based upon the zoning enabling statutes, the Tennessee Non-Conforming Property Act overrides those provisions and permits the reconstruction, repair, and renovation. But not expansion: §208 (c) does that and we’ll talk about that in our next post.

The Tennessee Non-Conforming Property Act

One of the most interesting aspects of land use planning law in Tennessee is the Tennessee Non-Conforming Property Act, Tenn. Code Ann. §13-7-208 (b)-(l). The TNCPA is outrageously complicated and it cuts against the interests of most local governments. That is, it allows non-conforming properties, those properties which do not comply with the local zoning regulations because they legally predate them, to remain almost in perpetuity. In most other states in the country, non-conforming properties are greatly restricted with a view towards eliminating them entirely. Here in Tennessee, the General Assembly decided in 1973 that non-conforming properties could remain, could expand, and even tear down and replace old facilities as necessary for the continuation of the business.

Over the next week or so, I hope to discuss the statute in some of its ins and outs. There are four important points to be made in this first entry.

First, the TNCPA applies both to municipal and county governments. Although it is codified as though it only applies to municipal governments, the Supreme Court has held that it applies to both. Smith County Regional Planning Commission v Hiwassee Village Mobile Home Park, 304 S.W. 3d 302, 311 (Tenn. 2010).

Second, the right to continue activities on non-conforming properties runs with the land and is not specific to any individual. As a result, upon the sale of the land to a new owner, the right to continue the non-conforming activity passes along with the property to the new owner. Smith County Regional Planning Commission v Hiwassee Village Mobile Home Park, 304 S.W. 3d 302, 310 (note 13) (Tenn. 2010).

Third, the TNCPA applies for the most part to commercial and industrial businesses only. It does not protect the residential use of land or other uses which may not be commercial or industrial. There is one specific provision which does protect multifamily residential, Tenn. Code Ann. §13-7-208 (d) (2), but the protections are rather limited. The TNCPA is most effective when applied to commercial or industrial properties.

Fourth and finally, because of the way the TNCPA has been amended over the years, and because the original legislation was obviously drafted by someone who did not work extensively in the area of land use law, the legislation in most of its sections appears to apply both to non-conforming land uses, and also to non-conforming (or as it is sometimes said here in Tennessee, noncomplying) structures. That is, if you have a business use which preexisted the effective date of the new zoning regulations, let's say a small convenience store, and which does not now, as a result of the new zoning regulations, comply, it is a non-conforming property and subject to the protection of the statute. Also, if you have a land use such as that same convenience store which continues to be legal under the new zoning regulations, but the store building is constructed, let's say hypothetically, too close to the street as a result of the new zoning regulations, the store building also is protected as a non-conforming property under the statute. There are several exceptions to this, but many of the provisions of the TNCPA apply both to use regulations as well as to both regulations. I simply refer to non-conforming properties, meaning thereby to encompass both types of non-conformities.

That’s enough for now. We’ll come back and try to take the statute section by section and discuss its implications for land use planning law.

Tennessee Zoning Statutes v. Standard State Act

One of the most interesting aspects of the adoption of the Tennessee Zoning Enabling Statutes, Tenn. Code Ann. §§13-7-101 (county zoning) and 13-7-201 (municipal zoning) is the differences between the Tennessee legislation and the so-called Standard State Zoning Enabling Act of 1924 (and revised in 1926) promulgated by a Blue Ribbon committee, under the supervision of the federal Department of Commerce. Interestingly, the Blue Ribbon committee included Ed Bassett and more importantly to Tennesseans, Alfred Bettman, who drafted the legislation which was to become the Tennessee Zoning Enabling Statutes.

Although Bettman felt that the Standard Act was reasonably well done, he had a number of significant concerns with its formulation. As a result, the Tennessee provisions are something of an amalgam of the Standard Act, the Bettman proposal, and some native Tennessee provisions tossed in for good measure.

I thought that I would discuss some of the differences over the next months in installments of my little writings here. I have copies of many of the original documents prepared by Alfred Bettman and much of the discussion will be based on those documents. Those are available, thanks to the archives at the University of Cincinnati, where there is extensive amount of material devoted to the Bettman family.

In addition, and of some significant interest, Bettman was involved in writing a book along with Ed Bassett published in 1935 and entitled Model Laws for Planning Cities, Counties, and States. The book was published by Harvard University Press. The format is broken basically into two parts: first, Ed Bassett discusses his thoughts and concerns regarding planning and zoning, followed by a group of legislative forms drafted by him which are suggested as model laws for states to adopt. The second part of the book is authored by Bettman, with a similar brief recitation of his thoughts and concerns, followed by the legislative forms authored by Bettman.

The Tennessee statutory provisions were based largely on Bettman’s model forms, although as I have mentioned above, several changes were made, sometimes to more closely correspond to the Standard  Act, and sometimes to provide greater protection to property owners, particularly the agricultural exemption in the county legislation.

Hopefully, over the next several weeks, we can discuss these proposals and distinguish them from the final Tennessee versions.

I might finally add, that Bettman was hired to draft the Tennessee legislation, and the terms of the agreement included not only zoning legislation, but also planning and subdivision legislation as well. I’m not going to discuss the provisions dealing with planning or subdivisions, but will limit myself to what became the Tennessee Zoning Enabling Statutes, passed in 1935.

Can a local government sue its own zoning board?

The legal question concerning whether a local government can sue its own board of zoning appeals seems to be gaining steam. First, my own case, Cheatham County v Cheatham County Board of Zoning Appeals and Randall and Margaret Mooneyhan, was decided last November. The issue was not directly addressed in that one however by the Court of Appeals because the County withdrew its appeal shortly before the oral argument before the court, and the only issue which remained was whether attorneys’ fees should be awarded to the Mooneyhans. However, in addressing this issue, both the majority and concurring opinions seem to clearly indicate significant doubt about the ability of a local government to sue its own board.

Meanwhile, over in Collierville, in a case involving the non-conforming status of billboards, the zoning board evidently voted not to require the owner to take the offending billboards down, and the Board of Mayor and Alderman have voted to sue the zoning board in order to have the billboards removed. This turn of events arises out of an interesting decision issued previously by the Tennessee Court of Appeals, Abbington Center v Town of Collierville (Tenn. App. 2012). We previously discussed this case.

Here in Nashville, there are two other cases with the same issue involved. In Metro Nashville v Metro BZA and Lamar, the local government suit its own board of zoning appeals arguing that its decision finding the replacement of a mechanical sign face with a digital sign face was not permitted under the terms of the local zoning ordinance and was not protected by the Tennessee Non-Conforming Property Act, Tenn. Code Ann. §13-7-208. Among the issues raised, was the propriety of a suit by the local government against its own zoning board. The Davidson County Chancellor, Claudia Bonnyman, ruled in favor of Metro Nashville, finding that the local government could sue.

However, just last Friday, in a case styled Metro Nashville v Metro BZA and CBS Outdoor Inc., CBS filed a motion to dismiss raising the same argument, but the local government lacked standing to file suit against its own zoning board. This time, a different Chancellor, Carol McCoy, concluded that the local government could not sue its own board of zoning appeals.

Both cases, as you might suspect, are going up on appeal. There are certainly policy arguments on both sides. The ultimate answer to the question may rest with the Tennessee Supreme Court.