|Legal Opinion: |
Text of Document: October 24, 2002
Re: Inoperable Bus as Violation of Town Ordinance
You asked whether an inoperable bus that is maintained by a business owner on the lot on which the business is located would be considered a “building” since it is used for storage. You have also asked whether this would be a legal non-conforming use since the bus was there before the business was annexed. In my opinion, using an inoperable vehicle for storage does not somehow transform it into a “building.” The provisions of state law that protect pre-existing non-conforming uses apply to zoning restrictions and not to other health, safety, and public welfare police power restrictions such as the Town’s ordinance on inoperable motor vehicles.
From the information that has been provided me, it appears the bus would meet the definition of “junked motor vehicle” in your ordinance. Section 13-301(3) of the Municipal Code defines “motor vehicle” as “any vehicle which is self-propelled and designed to travel along the ground and shall include, but not be limited to, automobiles, buses ...,” etc. Subsection (4) of the same section defines “junked motor vehicle” as “any motor vehicle, as defined by § 13-301(3), which does not have lawfully affixed thereto an unexpired license plate or plates and the condition of which is wrecked, dismantled, partially dismantled, inoperative, abandoned or discarded, or constitutes a public nuisance and/or affecting the public health and safety of the community as a whole.”
Since the bus meets the definition of a junked motor vehicle, it is probably irrelevant whether or not it might also meet some definition of “building.” There is no definition of “building” in this ordinance, so a court in interpreting the business owner’s contention would look to the ordinary meaning of the word as well as probably looking to the definition in the Town’s zoning ordinance. Webster’s Third New International Dictionary defines “building” as “a constructed edifice designed to stand more or less permanently, covering a space of land, usually covered by a roof and more or less completely enclosed by walls, and serving as a dwelling, storehouse, factory, shelter for animals, or other useful structure – distinguished from structures not designed for occupancy (as fences or monuments) and from structures not intended for use in one place (as boats or trailers) even though subject to occupancy.” Since a bus is not a constructed edifice and is not intended for use in one place, like a boat or trailer, it does not meet this definition of “building.”
The definition of “building” in the Town’s zoning ordinance is “Any structure having a roof supported by columns or by walls, including tents, lunch wagons, dining cars, mobile homes, and similar structures whether stationary or movable.” Municipal Code, § 14-302(20). Your Code defines “structure” as “Any combination of materials, including buildings, constructed or erected, the use of which requires location on the ground or attachment to anything having location on the ground .... § 14-302(109). A bus would not come under the definitions here for several reasons: buses and other motor vehicles are not listed in the definition and are distinguishable by purpose from those items that are; otherwise all motor vehicles would be considered “buildings”; a bus is not a “structure” because it is not constructed or erected in the sense that buildings are and a bus does not require a particular location on the ground; a bus does not have a roof and walls or columns in the sense that a building does. In my opinion, a court would not stretch the English language or the intent of the Town’s ordinances to the point of including a bus within any definition of the word “building.” It is difficult to get around the notion that when anyone, including judges, think of a building, they would never think of a bus and would naturally think that a bus is not a building.
The non-conforming use protection the bus owner refers to is found in Tennessee Code Annotated, § 13-7-208(b) through (e). These provisions protect a business or commercial use that is lawful from later zoning restrictions that would make them unlawful or more restrictive. As I indicated earlier, this protection applies only to zoning regulations and not to other police power regulations that promote the public welfare.
Ordinances similar to your City’s have been upheld in Tennessee and other states. See City of Jackson v. Butler, 10 S.W.3d 250 (Tenn. App. 1999); Hagaman v. Slaughter, 354 S.W.2d 818; and the Iowa case of City of Cedar Flatts v.Flett, 330 N.W.2d 251 (Iowa, 1983). These cases stand for the proposition that a municipality may rationally find that junk vehicles in outside storage threaten the public health and safety since they could attract vermin and rats, pose an attractive nuisance to children, create fire hazards, or make fighting a fire more difficult.
I hope this is helpful. If you have further questions, please contact us.