May 12, 1994
Your question is, can the city require a certain salvage yard to conform to the city's zoning ordinance passed on May 10? Under the facts you related to me by telephone this date, the answer is no, if the salvage yard was a legal use at the time of the annexation of the territory in which it is located. I suspect that it was.
However, the city might consider an ordinance that amortizes and regulates nonconforming uses. The Tennessee Supreme Court upheld such a provision in the Clarksville Zoning Ordinance against challenge by an automobile junkyard. [See Rives v. City of Clarksville, 618 S.W.2d 502 (1981), which is attached.]
You told me on the telephone this morning that a certain salvage yard has been in business since before the city annexed the territory in which the salvage yard is located in 1973. There is no evidence that the territory in question was zoned until May 10. On that date the property on which the salvage yard sits was zoned residential and commercial. Salvage yards are not a permitted use under the city's residential or commercial classifications.
The salvage yard is a preexisting nonconforming use under Tennessee Code Annotated, section 13-7-208(b). That statute affords extensive protection to preexisting nonconforming businesses and industries:
In the event that a zoning change occurs in any land area where such land area was not previously covered by any zoning restrictions of any governmental agency of this state or its political subdivisions, or where such lad area is covered by zoning restrictions...then any industrial, commercial or business establishment in operation, permitted to operate under zoning regulations or exceptions thereto prior to the zoning change shall be allowed to continue in operation and be permitted; provided, that no change in the use of the land is undertaken by such industry or business
That statute protects preexisting nonconforming businesses and industries from the application of zoning regulations of two kinds: zoning ordinances that were passed, and zoning ordinance changes that were passed, after the business or industry in question was already in operation. The salvage yard in question is in the former category.
Further provisions of that statute permit such preexisting nonconforming uses to expand and to replace facilities. [Tennessee Code Annotated, section 13-7-208(c) and (d). However, those provisions do put a limit on the expansion and replacement: where the expansion or replacement creates a nuisance to adjoining landowners.
The owners are leaseholds are also protected by Tennessee Code Annotated, section 13-7-208. [See Creative Displays, Inc. v City of Pigeon Forge, 576 S.W.2d 356 (Tenn. Ct. App. 1978)]
Sidney D. Hemsley
Senior Law Consultant