|Legal Opinion: |
Text of Document: August 21, 1997
Recently you contacted me concerning a zoning issue in your city. It seems that the city has imposed a moratorium on building permits and changes in zoning pending a comprehensive review of the city's zoning ordinance. One couple, prior to the moratorium, had entered into negotiations to sell their property to commercial concerns. This would be allowed under the present zoning ordinance. You wanted to know if the city could go ahead and give them assurance that the property would continue under its present zoning so that they could complete the sale. I don't think so.
I think that there are two distinct issues here:
1. Whether assuring that the present zoning will be continued would break the moratorium as to other property owners.
2. Whether the negotiations had reached the point that if, any change was made in the zoning, it would be covered as a prior non-conforming use.
As to issue one, I think it is pretty clear that to give one property owner assurances as to the continuation of the present zoning would lift the moratorium as to other property owners. The case of Spencer-Sturla Co. v. City of Memphis, 290 S.W.2d 608 (Tenn. 1927), points out that zoning powers are within the police powers of governmental entities:
provided only that this power this power shall not be exercised arbitrarily; that is, without reasonable connection or relation to the limitation imposed and the public health, safety and welfare.
I think it is fairly safe to say that granting just one property owner an exception to the moratorium would be an arbitrary use of this power that would not pass legal muster.
On issue two I think it is pretty clear that mere negotiations concerning the sale of the property would not confer non-conforming use status. T.C.A. 13-7-208(b) allows prior non-conforming uses but, subsection (e) reads. in pertinent part:
The provisions of subsections (b)-(d) apply only to land owned and in use by such affected business... (emphasis added).
The closest case I could find on point is Town of Garner v. Weston, 139 S.E.2d 642 (N.C. 1965). In that case, the city enacted a zoning ordinance prohibiting trailer parks. The defendants were enjoined from completion of such a park though they had already erected over sixty slabs for trailers, graded streets and installed water and sewer lines. The court simply said that the property was not in use as a trailer park thus was not a non-conforming use despite the substantial expenditures by the defendants. I think this clearly applies to the facts at hand thus the property in question would not meet the criteria for a non-conforming use.
I have enclosed the materials cited. Please feel free to contact me if I may be of any assistance on this or any other matter.