August 4, 2011
Dear Building Inspector:
You have the following question: Can the city adopt regulations that allow property owners to rebuild on the original footprint of a structure destroyed by fire, or other reasons? I assume this question is related to the reconstruction of preexisting nonconforming uses?
In my opinion, the answer is that at least with respect to preexisting nonconforming uses protected under Tennessee Code Annotated, section 13-7-307, property owners are authorized by that statute to reconstruct and even destroy and reconstruct their facilities and expand operations provided such expansion is not a nuisance. Section 11-301(1) of the city’s zoning ordinance provides that:
No building or land containing a nonconforming use shall hereafter be extended unless such extensions shall conform with the provisions of this ordinance for the district in which it is located; provided, however, that a nonconforming use may be extended throughout those parts of a building which were manifestly arranged or designed for such use prior to the time of enactment of this ordinance.
That provision sounds more limiting than the protection afforded nonconforming uses by Tennessee Code Annotated, section 13-7-208(c) and (d)(1). Those statutes respectively provide as follows: “Industrial, commercial or other business establishments in operation [that qualify as preexisting nonconforming uses]”
… shall be allowed to expand operations and construct additional facilities which involve an actual continuance and expensing of the activities of the industry or business which were permitted and being conducted prior to the change in zoning; provided, that there is a reasonable amount of space for such expansion on the property owned by such industry or business situated within the area which is affected….so as to avoid nuisances to adjoining landowners. [Subsection (c)]
….. shall be allowed to destroy present facilities and reconstruct new facilities necessary to the conduct of such industry or business subsequent to the zoning change; provided that no destruction and rebuilding shall occur which shall act to change the use classification of the land as classified…. No building permit or like permission for demolition, construction or landscaping shall be denied to an industry or business seeking to destroy and reconstruct facilities necessary to the continued conduct of the activities of that industry or business, where such conduct was permitted prior to a change in zoning; provided, that there is a reasonable amount of space for such expansion on the property owned by such industry or business situated within the area which is affected by the change in zoning, so as to avoid nuisances to adjoining landowners. [Subsection (d)(1)]
There are surprisingly few cases dealing with the question of what right the owners of preexisting nonconforming uses have to rebuild structures, but BMC Enterprises, Inc. v. City of Mount Juliet, 273 S.W.3d 619 (Tenn. Ct. App. 2008), is instructive on that point. There the owner of a preexisting nonconforming funeral home was denied the right to construct a crematory on the property. That case does not clearly state that the expansion would produce a larger “footprint” of the funeral home, but the facts suggest that it would because the owner of the funeral home wanted to add a three car garage to the “lot,” which would house the crematory. On appeal, the property owner was allowed to make the crematory addition to his funeral home. The court reasoned that Tennessee Code Annotated, section 13-7-208(c), which provides that a nonconforming use “shall be allowed to expand operations and construction of additional facilities which involve an actual continuance and expansion of the activities of the industry or business which were permitted and being conducted prior to the change in zoning.” Compared to the City’s nonconforming use ordinance, the statute allows the nonconforming use to be expanded to a far greater degree.
However, relatively recent changes in Tennessee Code Annotated, section 13-7-208 have both expanded and narrowed the nonconforming use law with respect to multifamily residential uses. Tennessee Code Annotated, section 13-7-208(d)(2) provides that “[m]ultifamily residential establishments (whether used as owner-occupied property or rental property) [which qualify as a preexisting nonconforming use]…shall be allowed to reconstruct new facilities necessary to the conduct of such multifamily residential establishment …. in the event of damage (partial or complete) by involuntary fire or wind damage or other natural disaster.” However, the same statute provides that protection extends only to those facilities that do not “exceed the original height, density, setback, or square footage of the original facilities…,” and any ordinance that contains stricter terms “regarding the amount of partial damage” that is allowed, shall govern, and the, “[n]ew facilities shall comply with all architectural design standards required under current zoning regulations …,” in order for those protections to apply.
Those rules do not appear to apply to nonconforming uses outside of multifamily residential housing. In that respect Section 11-301(3) of the City’s Zoning Ordinance, which prohibits the continuance of all nonconforming uses damaged fire or other causes, in excess of 50% of appraised value, appears to go too far. If a nonconforming property owner can destroy and reconstruct his nonconforming use under Tennessee Code Annotated, section 13-7-208(d)(1), it escapes me why the same statute would not apply to an instance where the structure was destroyed by fire or some other cause, with the exception of multifamily housing under Tennessee Code Annotated, section 13-7-208(d)(2).
Sidney D. Hemsley
Senior Legal Consultant