May 11, 2007
You have the following question: Is the attached ordinance, which requires the replacement of single-wide mobile homes with double-wide mobile homes in some instances legal?
Section 2 of the ordinance contains three main provisions, which I have broken down into three parts:
A. Mobile homes already occupying lots outside of mobile home parks can continue their existence, but if any such mobile home is replaced, it must be replaced with a double wide mobile home that meets the requirements of Tennessee Code Annotated, § 13-24-201.
B.. If the replacement of a single wide mobile home by a double-wide mobile home would result in the violation of the set back requirements that apply to the property, the Board of Commissioners can grant variances.
C. If an existing single wide mobile home remains vacant for 60 days, the mobile home owner has that 60 days + 15 days to replace it with a double wide mobile home.
Analysis of Part A of Ordinance
With respect to Part A, a question that arises is whether the property owner of a nonconforming use has any right, independent of a statute, to continue that use, to the point of replacing the use. I can find no Tennessee cases on that point, but in Lampasona v. Planning and Zoning Commission of North Stonington, 504 A.2d 554 (App. Ct. Conn. 1986), a property owner
of a nonconforming use that arose from the lot containing fewer than the number of square feet required for lots. She wished to replace the mobile home on the property. She had previously had a mobile home on her property when the city passed a zoning regulation that prohibited a mobile home owner form making more than one replacement. For that reason, her application for a permit to replace the mobile home a second time was denied. The Court overturned the denial of her permit, declaring that:
Where a nonconformity exists, it is a vested right which adheres to the land itself. [Citations omitted by me.] Any provision of a statute or ordinance abrogating such right in an unreasonable manner, or in a manner not related to the public welfare, is invalid. [Citations omitted by me.] In this present case, the mobile home use to which Lampasona has put her land is a valid nonconforming use. Since her nonconforming use has been validly established, she has a vested right under the protection of our state and federal constitutions to continue that use. [At 555]
The Court’s decision does not appear to rest upon any statute authorizing or protecting the existence of nonconforming uses, but the state and federal constitutions.
It is also said on 4 Yokley, Zoning Law and Practice, § 22.3, that:
The right to continue a nonconforming use, once established and not abandoned, runs with the land, and this right is not confined to any one individual or corporation. A vested right, unless abandoned, to continue the nonconforming use in the land. (sic.) The right to a nonconforming use is said to be a property right and any provision of a statute or ordinance that takes way that right in an unreasonable manner, or in a manner not grounded on public welfare is invalid. A lawfully established nonconforming use is a vested right and is entitled to constitutional protection.
I am not sure how the Tennessee courts would treat that doctrine, the state having enacted a preexisting nonconforming use law, which protects only business uses of property. If the right to continue a nonconforming use is a constitutional right under the U.S. Constitution, the limitation of Tennessee Code Annotated, §13-7-208(b) to business uses may be inadequate. The above case and zoning treatise also speaks of taking away the right to continue the nonconforming use in an “unreasonable manner, or in a manner grounded on public welfare...” It is difficult to determine what kinds of takings of the right to continue a nonconforming use would be reasonable or unreasonable.
Tennessee Code Annotated, § 13-7-208, provides that:
(b) 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 land area is covered by zoning restraints of a governmental agency of this state or its political subdivisions, and such zoning restrictions differ from zoning restrictions imposed after the zoning change, 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.
Subsections (c) and (d) respectively provide for the expansion and reconstruction of pre- existing non-conforming uses.
That statute was also amended in 2004 to include a 30 month limitation and important provisions governing how the 30 month limitation is applied [Subsection (g)].
But does Tennessee Code Annotated, § 13-7-208? Protect mobile homes that are rental property, from Part A of the ordinance? The answer to that question is not clear in Tennessee. As far as I can determine, the only cases on the application of that statute to residential property are unreported, and involve mobile homes in mobile home parks or courts.
In Clouse v. Cook, 1988 WL 34834 (Tenn), the City of Franklin annexed a mobile home court in 1969. At the time of the annexation, the city had an ordinance that permitted nonconforming uses to continue for 25 years. In 1985, the owners of the mobile home court sought to demolish and replace two of the 70 units in the court. The city argued that the mobile home court was not entitled to replace the units because the court was not an “industrial, commercial, or other business establishment,” and for that reason was not protected by Tennessee Code Annotated, § 13-7–208.
The Tennessee Supreme Court rejected the city’s claim, reasoning that:
Plaintiffs rent 70 units on a weekly basis in an area designated as a trailer court or trailer park. No rational person would have referred to the units that plaintiffs demolished as “single family residences,” or “residences,” of any character. This record is silent with respect to the number of units that are occupied by transients, or longer term tenants, but the units in the Battlefield Trailer court were referred to by the building inspector, and others as “mobile homes,” and in the majority opinion of the Court of Appeals as “mobile homes or house trailers.” The very nature of a trailer court or trailer park containing house trailers and mobile homes give rise to the assumption of transient occupancy as distinguished from residential occupancy....The bottom line is that the “occupants” of the units are more realistically classified as customers of a trailer court operation than occupants of “residences.” Defendants admit, and it is beyond question, that plaintiffs are engaged in a “business” in the operation of a trailer park....[At 3.]
The Court raised a telling point about the plaintiff’s argument: That “If plaintiff’s theory were correct, a single family residence rented or leased by the owner, would be classified as business property and could not be maintained in a residential zone.” [At 3.]
What the Court then said is instructive with respect to whether the trailer court would have been protected under Tennessee Code Annotated, §13-7-208 if the trailers had been residences: “If the ‘use’ was residential at the date of annexation, the city could have and should have, under its ordinances, terminated the operation immediately.” [At 4.]
The reason is connected with the date that Tennessee Code Annotated, § 13-7-208 was effective. In the Court’s own words, the “Defendants assert that in the event the Court holds that plaintiff’s use is business or commercial, that Tennessee Code Annotated, § 13-7-208 is unavailable to plaintiffs because that legislative act was not in effect until 1973, subsequent to the annexation of plaintiff’s property.” [At 4] The defendant cited Rives v. City of Clarksville, 618 S.W.2d 502 (Tenn.App.1981) in support of that assertion.
It is said in Rives v. City of Clarksville, 618 S.W.2d 5023 (Tenn.Ct. App. 1981), that before the protection of Tennessee Code Annotated, section 13-7-208 can be claimed, two requirements must be met: (1) There must be zoning where there previously was none, or there must be a change in zoning restrictions; and (2) There must be permissive operation of a business prior to the change.
But in Clouse the Court pointed to the fact that in Rives, “Rive’s salvage yard was an illegal use prior to the effective date of T.C.A. § 13-7-208.” [At 4] That statute became effective in 1973, the annexation had occurred in 1964, and in 1967 ordinances were passed zoning part of the property residential and part commercial, “and from that date forward all of his property was non-conforming use.” [At 4] The city’s nonconforming use ordinance gave Rives two years to abate and remove his junkyard from the residential portions and five years to do the same as to the commercial portion. Both periods had expired and “Rive’s entire salvage yard operation was illegal when T.C.A. § 13-7-208 became effective. He could not therefore meet the requirements of the statute that there be a permissive operation of a business.” [At 4] In Clouse, continued the Court the plaintiffs had 25 years from 1969 or 1972 to abate and remove the trailer court under the Franklin ordinance, and thus met the prerequisites for the application of T.C.A. § 13-7-208.
The trailer court got its permit to reconstruct the units in question.
That case suggests that while a mobile home used as a single-family residence is not a single family residence for the purposes of a zoning ordinance defining that term, what we typically understand to be a “single family residence” (or perhaps a residence of any kind) is not
a business, within the meaning of Tennessee Code Annotated, § 13-07-208. ( The logic of that view escapes me, particularly in light of the great federal and other effort that has gone into eliminating the distinction between site-built homes and mobile homes).
In Parker v. Hamblen County Planning Commission, the city adopted zoning regulations in 1990, at which time the plaintiff had in place in an area zoned R-1 a mobile home park. In 1993 he placed an additional single-wide trailer on an existing mobile home park (He also attempted to place a mobile home on an adjoining piece of property, but that attempt does not appear to bear on your question). Article 4 of the city’s zoning ordinance said with regard to preexisting nonconforming uses that:
After the adoption of this zoning resolution and map, any new construction must be in conformance with this code. Existing structures will be allowed to remain as nonconforming uses except any new additions to nonconforming properties must be done in accordance with this code.
Under the zoning ordinance permitted uses in an R-1 area included “single family houses, duplexes, customary home occupations, day care centers and schools.” Uses not permitted in R-1 areas included all uses not allowed.
Without any reference to Tennessee Code Annotated, § 13-7-208, the Court simply declared that while the plaintiff was entitled to operate his existing mobile home park as an nonconforming use, he could not add a mobile home to it, reasoning that:
The only structure allowed within zone R-1 are single-family houses [court’s emphasis] and duplexes. A trailer, be it single- wide or double wide, is not a house. [Court’s emphasis]....[At 3]
In Bedford County v. Bialik, 2002 WL 3103983 (Tenn.Ct.App.), Bedford County adopted a zoning resolution in 1998. Prior to the adoption of that resolution, Bialik placed on the property mobile home units. He subsequently attempted to place four additional mobile homes on the same property. Bedford County sought to prevent only the additional mobile homes on the property. Bialik claimed a vested interest in the use of the property under Tennessee Code Annotated, § 13-7-208.
Bialik got nowhere with his argument because he could not show that the evidence at trial preponderated against the trial court’s finding that the placement of the four trailers violated the zoning ordinance. The reason, said the Court, was because the record did not include a transcript or statement of the evidence.
Analysis of Part B of § 1
I know of no statute that gives the Board of Commissioners the authority to grant variances. That authority generally rests in boards of zoning appeals. [See Tennessee Code Annotated, § 13-7-207]
Analysis of Part C of § 1
The time limitations on vacancies for single wide mobile homes is short. With respect to mobile homes that fall within the protection of Tennessee Code Annotated, § 13-7-208, it is probably woefully short.
In the recent cases of Boles v. City of Chattanooga, 892 S.W.2d 416 (Tenn. Ct. App. 1994) and Custom Land Development, Inc. v. Town of Coopertown, 168 S.W.3d 764 (Tenn. Ct. App. 2005), the Tennessee Courts put their imprimatur on limitations on the time nonconforming uses can be discontinued before they are considered abandoned. (One hundred days in Boles, and one year in Custom Land Development). That is true even though the outcomes of those cases were different. In Boles, the time limitation was not upheld because the use was “discontinued” for more than 100 days due to a restraining order, not due to the intent of the owners of the property. . In Custom Land Development the time limitation was upheld because the property owners had deliberately discontinued the use of their land for the prescribed period. The Court mentioned the amendment of Tennessee Code Annotated , §13-7-208, in 2004, which added a 30 month limitation, as one of the reasons the decision in that case met the rational basis test, but declared that it did not apply to the case.
I am not sure what Custom Land Development does, if anything, for the City of Niota in light of the 30 month provision now contained in Tennessee Code Annotated, § 13-7-208(g). In addition, under that provision, the city still has the burden of proving abandonment of the nonconforming use. For that reason, the city’s 60 days + 15 days limitation on single wide mobile homes would probably fail. It is not clear to me whether Custom Land Development thinks a time limitation of less than 30 months conflicts with state law in cases that arise after 2004, but it seems to me that the 30 month limitation does apply to those cases. Likewise, it appears to me that the intent of the property owner with respect to the question of whether he abandoned the nonconforming use is still important, under both Boles and Custom Land Development.
Sidney D. Hemsley
Senior Law Consultant