|Legal Opinion: |
Text of Document: May 23, 1996
You asked for a simple, useful definition of "grandfathering" in the sense of allowing a preexisting use to continue despite a later regulation. You also mentioned a couple of situations in your city where this issue may arise.
Black's Law Dictionary defines "grandfather clause" as "an exception to a restriction that allows all those already doing something to continue doing it even if they would be stopped by the new restriction." Thus, "grandfathering" is allowing an existing operation or conduct to continue legally when a new operation or conduct would be illegal.
You mentioned two examples: (1) an existing fireworks stand that is allowed to operate at the same location although the sale of fireworks is otherwise prohibited; and (2) a sign that was erected in violation of a zoning ordinance but which has never been removed. The fireworks stand has been "grandfathered" to allow its continued use, however, the sign has not been "grandfathered," it remains an illegal use that has not been enforced.
The best example of a grandfather clause is Tenn. Code Ann. § 13-7-208, commonly called the preexisting nonconforming use statute, which generally provides that any business establishment in operation immediately preceding a change in zoning shall be allowed to continue and expand operations so long as no change of use is undertaken. The fireworks stand was probably "grandfathered in" under this statute. Section 7-501 of your city code provides that: "it shall be unlawful to sell, possess or shoot firecrackers, skyrockets, roman candles, toy cap pistols and torpedoes or any other like explosives within the corporate limits." I assume that the fireworks stand was operating legally prior to this ordinance being adopted in 1983. If this is the case, then the business has the right under Tenn. Code Ann. § 13-7-208 to continue to operate on this property. The fireworks stand may not move to another location within the city.
The illegal sign situation poses different problems. As I stated above, if the sign was in violation of the zoning ordinance when it was erected, it was not "grandfathered in" and is not a legal use. You stated that despite the zoning ordinance, the owner may have received approval from the city before putting up the sign. As a general rule, a permit issued by mistake in violation of a valid zoning ordinance is void. 8 McQuillin, Municipal Corporations, § 25.153. However, some courts have found where the landowner has acted in reliance upon the conduct of municipal officials and where he could suffer a substantial loss were the zoning ordinance enforced, the city may be precluded from stopping a violation. See Tenn.Atty.Gen.Op. No. 80-450. Therefore, if the sign was erected based on the approval of the city, I would be hesitant to attempt to enforce the ordinance now without weighing the potential damages of the landowner.
Do not hesitate to contact me if I can be of any further assistance.
MTAS Legal Consultant