February 26, 2008
You submitted three questions to Mr. Mike Tallent, the Interim Director of MTAS, which questions he referred to me:
1. Does a lot or a tract of land that was recorded prior to April 17, 1991 in your County, but not located within the City corporate limits remain a " lot of record" when it is annexed and becomes a part of the city?
That question involves the following facts: During the early 1990's, the City's Board of Mayor and Aldermen approved an ordinance that allowed construction, as a conditional use, on lots located within the Floodway Fringe District, provided that the lot or tract of land was a " lot of record" prior to April 17, 1991.
It is true that '6.7.3. of the city's zoning ordinance provides for a Floodway Fringe (FF) District. Under '188.8.131.52 of the zoning ordinance, certain conditional uses are permitted, including " (5) Construction on lots of record approved prior to April 17, 1991, in accordance with the following provision...." [A list of the conditions that apply to various kinds of construction follows.]
The parts of the Zoning Ordinance that you sent indicate that the significance of the date of April 17, 1991, is that it was the date the latest zoning ordinance of the city was adopted. However, I had a question about the city' s zoning ordinance that was not answered by the portions of the city's zoning ordinance that you sent: the question of whether that ordinance
contained any provisions related to annexed territory. For that reason, I obtained the City's Zoning Ordinance from the city's website. I learned that with respect to annexed territory, '4.1 provides that:
Prior to the annexation of property, the planning commission shall recommend zoning districts to the board of mayor and aldermen,
which shall assign the zoning districts by ordinance within one hundred twenty (120) days after annexation.
Question 1 appears to be governed by the definitions section of the city's own zoning ordinance, which defines " (132) Lot of Record" as follows: " A lot or tract of land, described by deed and/or subdivision plat, filed in the Register's Office of your County, as of April 17, 1991." Absent language in the City's Zoning Ordinance indicating otherwise, that definition appears to apply to a lot or tract of land not located within the City, but which is annexed by the city. It is said in Yokley, Zoning Law and Practice, '25-12 that:
Where property is annexed into a jurisdiction with zoning ordinances, the annexed property generally becomes subject to those ordinances on the date of annexation, absent provisions to the contrary....
I find nothing in the city's zoning ordinance to the contrary. As pointed out above, '4.1 of the Zoning Ordinance speaks of the application of the zoning ordinance to annexed territory. Obviously, '4.1 does not itself apply to conditional uses in Floodway Fringe Zones under '184.108.40.206 of the Zoning Ordinance, but it does indicate that when the city adopted the Zoning Ordinance on April 17, 1991, it consciously considered what application that ordinance would have to annexed territory, and it made no exceptions for property annexed after April 17, 1991, in this particular instance with respect to the definition of " Lot of Record." In addition, '2.4 of the Zoning Ordinance provides that, " This ordinance is applicable to all land located within the city, as now or as hereafter established." That provision also appears to contemplate the addition of land to the city by annexation. .
2. Are the requirements of the storm water ordinance applicable to any lot or tract of land being considered for development within the city regardless of when the lot or tract of land became a " lot of record" ?
That question contains these facts: During the early 2000's the City board of mayor and aldermen approved a Stormwater Ordinance. From that date, the city has applied the
requirements of that Stormwater Ordinance on development projects including those that were within the Floodway Fringe District with the understanding that the requirements of the storm water ordinance were stricter than the ordinances and federal regulations that preceded it.
Those facts also contain the seeds of Question 3, below, but I'll address that question separately. It appears that the intent of the authors of the Stormwater Ordinance was that it apply to any lot or tract of land within the city, regardless of when it became a lot of record. The
Stormwater Ordinance you sent to me is Ordinance No. 2001-53. Section 2 of that ordinance provides that " 2.1 The Storm water Management Ordinance shall govern all properties within the corporate limits of the City, Tennessee." Section 6.2.1 of the Stormwater Ordinance also provides that " All new development and redevelopment under the jurisdiction of this ordinance as prescribed in Section 2 of this ordinance shall be required to obtain a Stormwater Management Permit." [with some exceptions that follow in '2.2].
Here, I note that Section 3BDefinitions, defines a " Floodway Fringe" as " That portion of the flood plain lying outside the floodway." But as far as I can determine, the term " Floodway Fringe" does not appear anywhere in the Stormwater ordinance. However, it is apparently a part of the floodplain under that ordinance.
The fact that the Stormwater Ordinance was intended to apply to all properties in the city intuitively suggests that there are conflicts between that ordinance and the Zoning Ordinance. In fact, a reading of the provisions in both ordinances governing land use in the floodplain and the floodway fringe areas indicate that the Stormwater Ordinance is stricter. However, I do not have enough technical expertise to identify every place they may be in conflict. In addition, it may be that some of the conflicts can be reconciled. Under the rules of statutory construction statutes and ordinances are to be construed to avoid conflicts between them, and where conflicts are found they are to be harmonized to the extent possible. [See Brooks v. Fisher, 7-05 S.W.2d 135 (Tenn. Ct. App. 1985); Dingman v. Harvill, 814 S.w.2d 362 (Tenn. Ct. App. 1991).]
I will take up the problem of irreconcilable conflicts in addressing Question 3, below.
3. Did the City Stormwater Ordinance(adopted in 2003) repeal or supercede the sections of the Zoning Ordinance that existed at that time and pertained to flood plains?
You sent to me Stormwater Ordinance 2001-53, but Question 3 speaks of " Storm water Ordinance (adopted in 2003)...." I wonder if we have two stormwater ordinances in play here. However, I will assume I have the correct one.
The critical conflict between the Zoning and the Stormwater Ordinances is apparently the
ability of the city under the latter to expand the floodways under '6.2.24 of the Stormwater Ordinance, and ability that does not exist under the Zoning Ordinance. That conflict appears to be an irreconcilable one. There may also be others.
Both the Zoning Ordinance and the Stormwater Ordinances themselves provide for the resolution of conflicting provisions. Section 2.5(2) of the Zoning Ordinance declares that:
Whenever regulations imposed by this ordinance are less restrictive than regulations imposed by any other governmental authority through regulation, rule, or restriction, the regulations imposed that authority shall govern. Regardless of any other provision of this ordinance, no land shall be developed or used, and no structure erected or maintained, in violation of any state or federal regulations. In cases of conflicts within this Ordinance, then the stricter regulations shall apply.
Section 11.2 of the Stormwater Ordinance provides that:
If any provision of this ordinance and any other provision of law impose overlapping or contradictory regulations, or containing restrictions covering any of the same subject matter, that provision which is more restrictive or imposes higher standards or requirements shall govern.
Setting aside for the moment any rules of statutory construction that might resolve conflicts between the Zoning and Stormwater Ordinances, it is difficult to read '2.5(2) of the Zoning Ordinance very broadly. The resolution of conflicts of which it speaks is the conflict of regulations arising under " this Ordinance" and " regulations imposed by any other governmental authority,." and, in the last sentence, " conflicts within this ordinance." The conflict within the context of this question does not appear to involve " any other governmental authority," or an internal conflict within the Zoning Ordinance.
Section 11.2 of the Stormwater Ordinance speaks of conflicts between " any provision of this ordinance and any other provisions of law...." Although municipal ordinances reflect local " laws," it is not altogether clear that a conflict between the Stormwater Ordinance and the Zoning Ordinance is a conflict involving ' any other provision of law within the meaning of '11.2..
However, if we put those provisions aside, one ordinance or the other must control development in the city's floodways, to the extent of irreconcilable conflicts between them.
In the City's case it appears that the Stormwater Ordinance takes precedence over the Zoning Ordinance in that area. Under the rules of statutory construction, where there is an irreconcilable conflict between two statues or ordinances, the older provision is repealed by implication. I say that reluctantly because repeals of statutes, or parts of statutes, by implication are not favored in Tennessee, and nothing short of an irreconcilable conflict between statutes or ordinances can work an implied repeal. They are recognized as a matter of necessity. [See Brown v. Knox County, 39 SW.2d 585 (Tenn. Ct. App. 2000); Harman v. Moore's Quality Snack Foods, Inc. 815 S.W.2d 519 (Tenn. Ct. App. 1991); State Department of Revenue v. Moore, 722 S.W.2d 367 (Tenn 1986).] This rule is best stated, and expanded, in Planned Parenthood Association of Nashville, Inc. v. McWherter, 817 2d 13 (Tenn. 1991):
The principle of statutory construction is well-established in Tennessee that the courts should construe statutes so as to avoid placing one statute in conflict with another. [Citation omitted by me.] However, it is equally well-settled that in the event of an irreconcilable conflict, or " [w]here two statutes cover the same subject matter, the last enactment repeals the former by implication." [Citation omitted by me.] Such repeals are commonly said to be " disfavored" by the law and are recognized only to the extent of actual conflict. [Citations omitted by me.] However, statutory repeal by implication is recognized as a " matter of necessity," [citation omitted by me] and sometimes even as a matter of legislative intent. [Citation omitted by me.] [At 15]
The two conflicting provisions of the Zoning Ordinance and of the Stormwater Ordinance are on the same subject: the regulation of land use in floodplains. It may also be possible to demonstrate the legislative intent on the part of the City Council that the Stormwater Ordinance was to supercede the less restrictive provisions of the Zoning Ordinance regulating construction in, and use of, the floodplain and the flood fringe area. As pointed out above, '2.1 of the Stormwater Ordinance provides that " The Stormwater Management Ordinance shall govern all properties within the corporate limits of the City, Tennessee" [with certain listed exceptions.] Section 1 of the Stormwater Ordinance also outlines the purposes of the Stormwater Ordinance, a prominent feature of which is to regulate flooding of property. The second WHEREAS of the ordinance reflects that concern, WHEREAS'es in ordinances are not substantive, but they are clues to the intent of the legislature in adopting the legislation in question. In fact, a reading of the Stormwater Ordinance, while it points to the function of the ordinance as promoting the quality of water, is clearly as much or more concerned with regulating floodwaters.
If you have any questions about this opinion, or if I can help you in any other matter, please let me know.
Sidney D. Hemsley
Senior Law Consultant