|Legal Opinion: Enforcing Floodplain Zoning Ordinance public.wpd|
Text of Document: September 18, 2002
Re: Enforcement of Floodplain Zoning Ordinance
Dear City Recorder:
You asked how the Town may enforce its floodplain zoning ordinance against a property owner who built and is maintaining a business building in violation of the requirements of the ordinance. Specifically you asked about what is commonly called self-help, or the Town itself demolishing the offending structure. There are several punishments that can be brought to bear on the offending owner, but self-help is not among them. The preferred course to get compliance is probably a lawsuit seeking an injunction prohibiting occupancy or use of the building in its present condition and requiring conformity with the ordinance before it can be occupied or used in the future.
Tennessee Code Annotated, § 13-7-201, is a general grant of power to municipalities to adopt and enforce zoning ordinances, but it also includes this authority:
Special districts or zones may be established in those areas deemed subject to seasonal or periodic flooding, and such regulations may be applied therein as will minimize danger to life and property, and will secure to the citizens of Tennessee the eligibility for flood insurance under Public Law 1016, 84th Congress or subsequent related laws or regulations promulgated thereunder.
The Town adopted its floodplain zoning ordinance (Ordinance No. 231) under authority of this language in § 13-7-201. According to National Flood Insurance Program Technical Bulletin 3-93, the Federal Emergency Management Agency makes flood insurance available to residents of participating communities that adopt and enforce adequate floodplain management regulations that meet minimum NFIP requirements. Therefore, if the Town fails to enforce its floodplain zoning ordinance, it could jeopardize flood insurance for its residents.
T.C.A. § 13-7-208(a) provides for the enforcement of municipal zoning regulations. Subsection (a)(1) makes the violation of a zoning ordinance a Class C misdemeanor under state law. The violator could be prosecuted under this criminal provision by action brought by the district attorney. The punishment for a Class C misdemeanor is set in T.C.A. § 40-35-111 at jail for up to 30 days or a fine of up to $50.00, or both. The problem with this method of enforcement is that it does nothing directly to cure the noncompliance. After the jail sentence is served and the fine paid, the offending building still exists. It is, however, one weapon in your arsenal and the prospect of its use could encourage compliance in some cases.
Another method of enforcement is to treat the violation as an ordinance violation. This method is set out in Section H of your flood control ordinance:
Violation of the provisions of this ordinance or failure to comply with any of its requirements, including violation of conditions and safeguards established in connection with grants of variance or special exceptions, shall constitute a misdemeanor, punishable as other misdemeanors as provided by law. Each day such violation continues shall be considered a separate offense. Nothing herein contained shall prevent the Town from taking such other lawful action as is necessary to prevent or remedy any violation.
The Tennessee Supreme Court in City of Chattanooga v. Davis and Barrett v. Metropolitan Government of Nashville and Davidson County, 54 S.W.3d 248 (Tenn. 2001), indicates that “prospectively coercive” fines may be levied to encourage compliance with an ordinance. This apparently means that each day can be treated as a separate violation and the violator could be fined by the municipal court $50.00 per day for each day the city can show the violation continued through the date of conviction. If the Town were to choose this method of enforcing the ordinance, it would serve the purpose of encouraging compliance if the offender were to be notified that he/she would be prosecuted in municipal court for the ordinance violations and that the fine amount was mounting each day the violation continued. The problem here is similar to the problems associated with treating this as a violation under state law. After the fine is paid, the offending building still exists. And the prospect of paying a fine of $50.00 per day might not be enough to bring about compliance.
Perhaps the best enforcement mechanism is set out in T.C.A. § 13-7-208(a)(2):
In case any building or structure is or is proposed to be erected, constructed, ... or maintained, or any building, structure or land is or is proposed to be used in violation of any ordinance enacted under this part and part 3 of this chapter, the building commissioner, municipal counsel or other appropriate authority of the municipality ... may, in addition to other remedies, institute injunction, mandamus or other appropriate action or proceeding to prevent such unlawful erection, construction, reconstruction, alteration, conversion, maintenance, or use, or to correct or abate such violation, or to prevent the occupancy of the building, structure or land.
The action seeking an injunction would normally be brought by the city attorney in the chancery court. If the city attorney feels he has a conflict of interest, the Town might want to hire another attorney to bring the action.
Section 13-7-208 does not authorize the Town to go onto private property and demolish buildings that do not conform to zoning requirements. Even in situations in which municipalities are authorized to go onto private property and demolish buildings, e.g., T.C.A. § 13-21-101 and the following sections relative to dilapidated buildings, courts warn that this authority be administered with caution. See Winters v. Sawyer, 463 S.W.2d 705 (Tenn. 1971). I am also enclosing a copy of an unreported case from Delaware where self-help was a possible solution since the municipal charter there authorized it. I have highlighted portions of the opinion where the court notes the potential dangers of self-help and calls an injunction the “obviously ... preferable path.” City of Rehoboth Beach v. Capasso, 1986 WL 10500.
I hope this is helpful. If you have further questions, please contact us.