August 16, 2001
Dear Planning Director:
You have the following question: Can a county zoning ordinance permit the expansion of pre-existing non-conforming uses to adjacent land?
Let me say here that my answer is general; I do not have the county zoning regulations in question, particularly its preexisting nonconforming use provisions. It may be that the regulations are consistent, or can be reconciled with, Tennessee’s preexisting nonconforming use law, Tennessee Code Annotated, § 13-7-208.
In my opinion, the answer is no, although the one reported Tennessee case that deals with that question hit it at an angle.
That case is 421 Corporation v. Metropolitan Government of Nashville and Davidson County, 36 S.W.3d 469 (Tenn. Ct. App. 2000). But even for its failure to hit the question head on, it supports the proposition that Tennessee Code Annotated, § 13-7-208(c) and (e) take precedence over any zoning ordinance allowing expansion of preexisting nonconforming uses into land not occupied by the preexisting nonconforming use at the time it became such a use.
Because the time given to me to address your question was extremely short, I have chosen to omit citing pertinent language of Tennessee Code Annotated, § 13-7-208, on the premise that 421 Corporation, which I have attached, adequately does so.
In 421 Corporation, the Purple Onion, an adult business, was an acknowledged pre-existing non-conforming use. (It did not comply with the city’s zoning ordinance, which restrictedadult business to the downtown area). It acquired the building next door to its existing building, and with which it shared a common wall. The Purple Onion subsequently removed the common wall and expanded its business into the new building. At 421's request, the tax assessor combined the two tracts of land, and designated to them a single address. The city raised three basic arguments against the approval of the expansion of the business into the adjoining building:
1. That the expansion violated a provision of its zoning ordinance that permitted a preexisting nonconforming to continue its existence, if (among other things) it “presently occupies the same property it occupied when it became nonconforming...” [Emphasis is mine.]
2. That the “same property” provision is essentially equivalent to Tennessee Code Annotated, § 13-7-208(e), and prevented the expansion.
3. That even if that provision and Tennessee Code Annotated, § 13-7-208(e) were not equivalent, the statute prevented the expansion. [Emphasis is mine.]
The 421 Corporation, of course, argued that the “same property provision” was not equivalent to Tennessee Code Annotated, § 13-7-208(e), that it was less inclusive than the prohibition on expansion than Tennessee Code Annotated, § 13-7-208(e), and that the zoning ordinance on that point superceded the statute.
The Court at first only indirectly addressed the question of whether a city’s zoning ordinance can supercede Tennessee Code Annotated, § 13-7-208(c) and (e) by allowing the expansion to other land of preexisting nonconforming uses. It elected to read those statutes and the “same property” zoning ordinance provision together, and found them “equivalent,” declaring that:
Mr. Sokolic’s and 421 Corporation’s construction of the “same property” requirements into Metro. Code § 17.128.060(B)(1) would set the ordinance on a collision course with Tennessee Code Annotated, § 13-7-208. This conflict can be avoided by giving the term “same property” a reasonable construction based on the common meaning of its words. As we see it, the term “same property” refers to the same tract of real property on which the business was operating when it became a nonconforming use. It does not include “new land” acquired by the property owner after the use became nonconforming, even if the “new land” was later combined with the existing property into one parcel of land for tax purposes. [At 478]
The fact that the Court sought to avoid a “collision” between Tennessee Code Annotated, § 13-7-208 and the city’s zoning ordinance seems to indicate that had the Court not been able to escape that collision it would have found the state statute superior.
But at that point the Court finally directly hit the question of whether the state law superceded the city’s ordinance. It specifically rejected 421's argument that the zoning ordinance superceded the statute, reasoning that:
This argument overlooks the principle that local zoning ordinances cannot ignore state law and cannot grant rights that state law denies. See Riggs v. Burson, 941 S.W.2d 44, 54 (Tenn. 1997) (holding that a local ordinance permitting the operation of a heliport within nine miles of a national park boundary did not take precedence over a state statute requiring that heliports within nine miles of a national park boundary be eliminated) [remaining citation omitted.]. The restriction regarding acquiring new property in Tenn. Code Ann. § 13-7-208(e)is mandatory, and local governments cannot grant broader rights to expand nonconforming uses. [At 478] [Emphasis is mine.]
Somewhat cryptically, the Court also declared that “The state enabling statutes provide some direction for resolving conflicts between local zoning regulations and state statutes,” then pointed to Tennessee Code Annotated, § 13-7-209, which provides that when a local zoning ordinance and a state law contain different restrictions regarding the size of open spaces, building height, and percentage of the lot occupied by a building, the most strict restrictions apply. “The prevision,” said the Court, “on its face, does not apply to the Purple Onion’s planned expansion of its nonconforming space. There is no dispute between the parties involving open space, building height, or the footprint of a new building.” But the Court seems clearly to have implied that similar rules apply to conflicts in the provision of a zoning regulation pertaining to the expansion of preexisting nonconforming uses and Tennessee Code Annotated, § 13-7-208.
For those reasons, I feel comfortable concluding that, generally, a zoning ordinance by any political subdivision of the state governing preexisting nonconforming uses must comply with Tennessee Code Annotated, § 13-7-208.
Sidney D. Hemsley
Senior Law Consultant