July 6, 2001
You have the following question: Does an unoccupied house qualify as a “residential dwelling” within the context of Tennessee Code Annotated, § 57-5-105(i), under the following facts: the house was recently occupied by a lady who died, and whose survivors say they intend to remodel the place for the purposes of continuing its use as a dwelling place, and they have operating utilities in the place?
The answer is yes.
Tennessee Code Annotated, § 57-5-105(i), reads as follows:
Class A counties, by resolution of their county legislative bodies, may forbid the sale of beer within three hundred feet (300') of a residential dwelling, measured from building to building; provided, that the owner of the residential dwelling appears in person before the county beer board and objects to the issuance of such permit or license...
It is noteworthy that it is the owner, and not the occupant, of the residential dwelling who has the right of protest under that statute. In addition, nothing in that statute requires the owner of the residential dwelling to himself be a resident of the property
Although that term “residential dwelling” is not defined in that or any other statute regulating the sale of beer or alcoholic beverages, in the context of Tennessee Code Annotated, § 57-5-105(i), it undoubtedly means a place used for the dwelling of a person or persons. However, the fact that the residential dwelling may be temporarily vacant due to the death of its owner would not without more change the character of its use.
In Parks v. Richardson, 567 S.W.2d 465 (1977), the Tennessee Court of Appeals construed the term “residence” within the meaning of a restrictive covenant that restricted the use of the property to “residential purposes only and for residential property that has been approved by the Columbia Planning Commission.” It declared that “The word ‘residential’ refers to the use made of the property by its occupants, and does not preclude the construction and rental of duplexes, apartments houses, or condominiums.” The Court reasoned that it could not determine the intent of the parties in interpreting the phrase “residential purposes only,” and turned to the “plain meaning” of the phrase, reaching to 14 A.L.R2d 1376 and several cases from other jurisdictions for support. In doing so, it simply apparently assumed that the definition of “residence” in the context of a restrictive covenant was property upon which a person or persons lived.
The Courts in other jurisdictions have reached the same conclusion. In Jernigan v. Capps, 45 S.E.2d. 886 (1948), The Supreme Court of Appeals of Virginia said:
It is not necessary that we go to a dictionary or a law book to ascertain the meaning of a “residential building.” Giving the words their plain and ordinary meaning, we would say that such a building is one which is used for residential purposes–that is, one in which people reside or dwell, or in which they make their homes, as distinguished from one which is used for commercial or business purposes....But if the obvious must be supported by authority or judicial precedent, we find that they are of the same view....Webster’s New International Dictionary, 2d Ed., defines “residential” as “Used, serving, or designed as a residence or for occupation by residents; as, a residential hotel.” “Adapted to, or occupied by, residences; as a residential quarter.” “Of, pertaining to, or connected with, residence or residences; as residential trade, qualifications, or zones.” “Of or pertaining to a resident.”....The same authority defines “residence” as: “The place where one actually lives or has his home; a person’s dwelling place or place of habitation; and abode. *** The house where one’s home is; a dwelling house.” [Citation omitted.] [At 890]
Although that case also involved a restrictive covenants, its definition of “residential building” is of general application. It seems clear to me that Tennessee Code Annotated, § 57-5-105(i) also uses the term “residential dwelling” in a manner broad enough to include a vacant residential dwelling.
It is extremely doubtful that the General Assembly intended for Tennessee Code Annotated, § 57-5-105(i) to be read so narrowly as to exclude any residential dwelling that was unoccupied merely because its owner had died, or was for any reason temporarily vacant. It is logical to me that they would interpret that statute in the same manner that they interpret Tennessee’s Pre-Existing Non-Conforming Use Law. Found at Tennessee Code Annotated, § 13-7-208, that Law protects pre-existing non-conforming businesses from the application of new zoning laws or zoning changes that would make the present use of the property illegal. Obviously, that law does not apply to the residential dwelling in your case, but the cases that deal with the question of the status of vacant property under the Pre-Existing Non-Conforming Use Law are relevant. In Boles v. City of Chattanooga, 892 S.W.2d 416 (Tenn. App. 1994), it is said that:
We believe that the term “discontinued” or words of similar import, as utilized in zoning ordinances with specific time limitations, should be construed to include an element of intent, combined with some act–or a failure to act–indicative of abandonment. Landowners who have enjoyed a non-conforming use on their properties, often for many years, no doubt come to rely economically on those non-conforming uses. Moreover, discontinuance of non-conforming uses can occur for a wide variety of involuntary reasons, not all of which stem from alleged violations of the law, and some of which may be laudable. [Citation omitted] To hold that a non-conforming use can be cut-off automatically by time limits on discontinuance, regardless of the reason for the discontinuance, strikes us intrinsically unfair. Such a holding also seems contrary to the underlying concern for the private property rights expressed in Rives, 618 S.W.2d at 508. Accordingly, we hold that the term “discontinued” as found in Article VII, Section 100 of the Chattanooga Zoning Ordinance does not apply if the discontinuance of the non-conforming use is purely involuntary in nature. [At 422]
Citing Boles, the Court reached a similar conclusion in Chadwell v. Knox County, 980 S.W.2d 378 (Tenn. App. 1998).
It is apparent that the same issues the Court expressed with respect to treating an involuntary discontinued use as shutting off the property owners right to involve the Pre-Existing Non-Conforming Use Law apply to the owners of a residential dwelling which, but for the death of their mother, would still be occupied. Absent a showing of (1) Intent to abandon, and (2)
some overt act that reflects such intent, I think the courts would find that the owners of the residential dwelling have the right to claim the protection of Tennessee Code Annotated, § 7-5-105(i).
Sidney D. Hemsley
Senior Law Consultant