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Zoning and Subdivision Regulations Are in Conflict

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Reviewed Date: January 03, 2019

Original Author: 
Hemsley, Sid
Date Created: 
Sep 17, 2002


Subjects:
Zoning--Subdivisions
Zoning--Laws and regulations
Zoning--Municipal ordinances
Municipal ordinances

Zoning and Subdivision Regulations Are in Conflict

Summary: 
MTAS was asked which of the zoning regulations and of the subdivision regulations prevail when the two are in conflict.


September 17, 2002

Dear Sir:

You have the following question: Where the city’s zoning regulations and subdivision regulations conflict with respect to lot size required in an R-1 zone (the former regulations requiring a larger lot size than the latter regulations) which regulations prevail?

The answer is probably the city’s zoning regulations.

Tennessee Code Annotated, Title 13, Chapter 7, gives municipal governing bodies the power to zone territory within the municipal limits. One of the express powers the municipal governing body has under Tennessee Code Annotated, §§ 13-7-201 and 202 is to regulate “the percentage of the lot that may be occupied, the sizes of yards, courts and other open spaces, the density of population....” and to establish districts in which those regulations apply.

Tennessee Code Annotated, Title 13, Chapter 4, gives municipalities the authority to adopt planning and subdivision regulations. Under Tennessee Code Annotated, § 13-4-201, among the planning commissions planning powers is “also a zoning plan for the regulation of the height, area, bulk, location and use of private and public structures and premises and of population density....” Under Tennessee Code Annotated, § 13-4-303, subdivision regulations are also adopted by the planning commission.

However, it is the municipal governing body’s zoning power that translates the planning commission’s “plan” into ordinance to the extent that the municipal governing body wishes under Tennessee Code Annotated, Title 13, Chapter 7, including the extent that it wishes to establish districts and within them to regulate population and the size of yards, courts and other open spaces. In addition, nothing in Tennessee Code Annotated, Title 13, Chapter 4, expressly authorizes subdivision regulations to include the percentage of the lot that may be occupied, the size of yards, courts and other open spaces, and the density of population, although Tennessee Code Annotated, § 13-4-302, does expressly provide that subdivision regulations may provide“adequate open spaces for traffic, recreation, light and air, and for a distribution of population and traffic....” Otherwise, Tennessee Code Annotated, § 13-4-303, speaks of the adoption of subdivision regulations more generally in terms of street plans, street grading and improvements.

It seems reasonable that with respect to your question, that the specific municipal zoning statute [Tennessee Code Annotated, Title 13, Chapter 7] controls the general municipal planning and subdivision regulation statute [Tennessee Code Annotated, Title 13, Chapter 4].

In addition, Tennessee Code Annotated, § 13-7-209, provides that:

Whenever the regulations made under authority of this part and part 3 of this chapter require a greater width or size of years, courts or other open space, or require a lower height of buildings or less number of stories, or require a greater percentage of lot to be left unoccupied, or imposed other higher standards than are required in any other statute, the provisions of the regulations made under authority of this part and part 3 of this chapter shall prevail....

(Tennessee Code Annotated, § 13-7-112 contains a similar requirement relative to county zoning regulations).

Presumably, a zoning regulation that requires larger lot sizes in R-1 districts reflects a higher standard than does a subdivision regulation that permits smaller lot sizes in R-1 districts.

The language in that statute is somewhat vague. It speaks of “regulations [zoning] made under authority of this part,” when they conflict with “higher standards than are required in any other statute....” Arguably, municipal planning and subdivision regulations are not a “statute,” the former being merely a “plan” adopted by the planning commission, and the latter being regulations adopted by the planning commission, although they are both adopted under the authority of statutes. For that reason, that statute may not even apply to your question. But if we assume that it does, the result is that the city’s zoning ordinance would prevail because it reflects the higher standard in an R-1 zone.

Sincerely,

Sidney D. Hemsley
Senior Law Consultant

SDH/

Reference Document(s): 

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