Alexander Ford-Mercury, Inc. v. City of Franklin, Tennessee Board of Zoning Appeals ( 2005 )


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  •                  IN THE COURT OF APPEALS OF TENNESSEE
    AT NASHVILLE
    January 7, 2005 Session
    ALEXANDER FORD-MERCURY, INC. v. CITY OF FRANKLIN,
    TENNESSEE, BOARD OF ZONING APPEALS
    Appeal from the Chancery Court for Williamson County
    No. 29830    Donald P. Harris, Chancellor
    No. M2004-00246-COA-R3-CV - Filed March 8, 2005
    This is a zoning case involving a free-standing sign. The plaintiff seeks to replace it with another
    sign which does not conform to a new sign ordinance. The plaintiff seeks the protection of the
    grandfather statute. The Chancellor held that the grandfather statute did not apply. We affirm.
    Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
    WILLIAM H. INMAN , SR. J., delivered the opinion of the court, in which WILLIAM C. KOCH , JR.,
    P.J.M.S. and WILLIAM B. CAIN , J., joined.
    David H. King, Franklin, Tennessee, attorney for appellant, Alexander Ford-Mercury, Inc.
    Douglas Berry, Nashville, Tennessee, attorney for appellee, City of Franklin, Tennessee, Board of
    Zoning Appeals.
    OPINION
    The automobile dealership of the plaintiff was established in 1979 in the City of Franklin.
    Concurrently with the construction of the building a free-standing sign was erected to advertise the
    location of the dealership. It was in compliance with applicable zoning ordinances of the City of
    Franklin which issued the required permits. The sign was forty-three feet tall with a box of 155
    square feet and was both economically and competitively satisfactory.
    The plaintiff is a franchisee of Ford Motor Company which adopted a new, nationwide logo
    and consequently required the plaintiff to conform its sign accordingly. The plaintiff thereupon
    contacted the City of Franklin seeking to replace the existing sign with a smaller one that comported
    with the franchisor’s logo, and was advised by the codes officer that the proposed smaller sign was
    impermissible because it exceeded the dimensions permitted by the new city zoning ordinance,
    which provided that “no nonconforming sign shall be replaced, removed, reconstructed or relocated
    unless . . . the replaced reconstructed or relocated sign conforms to the provisions of the ordinance.”
    The new ordinance allowed signs with a maximum aggregate dimension of fifty square feet and
    twelve feet high. The decision of the codes officer was appealed to the Board of Zoning Appeals
    which denied relief. A petition for certiorari and declaratory judgment followed; after some
    skirmishing the parties agreed to remand the case to the Board of Zoning Appeals for its
    determination of this issue:
    Is the placement and reconstruction of the sign in the size and design
    proposed by the plaintiff necessary to the continued conduct of the
    plaintiff’s business within the meaning of Tenn. Code Ann. § 13-7-
    208(d)?
    Following a hearing the Board determined by a unanimous vote that the proposed new sign
    was not necessary for the continued conduct of the plaintiff’s business. The Chancellor subsequently
    found (1) that the statute vested no right in the plaintiff to reconstruct the sign, and (2) that the Board
    did not act arbitrarily, illegally or unreasonably in disallowing reconstruction of the sign.1
    The City argued that Tenn. Code Ann. § 13-7-208(d) was inapplicable because it did not
    apply to signs, but if so, that the plaintiff did not establish that the reconstruction of the sign was
    necessary to the continued conduct of the business. The Chancellor disagreed, in part, finding that
    the statute [§13-7-208(d)] applies to signs but only to the extent the sign is necessary to the
    continued commercial use of the property.
    Analysis
    Tennessee Code Annotated § 13-7-208(d) controls. See, 412 Corp v. Metro Govt, 
    36 S.W.3d 469
     (Tenn. Ct. App. 2000). It provides:
    Industrial, commercial, or other business establishments in operation
    and permitted to operate under zoning regulations or exceptions
    thereto immediately preceding a change in zoning shall be allowed to
    destroy present facilities and reconstruct new facilities necessary to
    the conduct of such industry or business subsequent to the zoning
    change; provided, that no destruction and rebuilding shall occur
    which shall act to change the use classification of the land as
    classified under any zoning regulation or exceptions thereto in effect
    immediately prior to or subsequent to a change in the zoning of the
    land area on which such industry or business is located. No building
    permit or like permission for demolition, construction, or landscaping
    shall be denied to an industry or business seeking to destroy and
    1
    The plaintiff sought both a declaratory judgment and a writ of certiorari. The City moved to dismiss the
    demand for declaratory relief, arguing that the plaintiff was seeking to join an appellate action with an original action
    in order to enlarge the record beyond evidence presented to the Board. The motion was resolved by the agreed order
    of remand to the Board.
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    reconstruct facilities necessary to the continued conduct of the
    activities of that industry or business, where such conduct was
    permitted prior to a change in zoning; provided, that there is a
    reasonable amount of space for such expansion on the property
    owned by such industry or business situated within the area which is
    affected by the change in zoning, so as to avoid nuisances to
    adjoining landowners.
    This statute is the relevant part of the grandfather statutory scheme applicable to the peculiar
    facts of the case at Bar. The appellant insists that the ordinance which required that all replacement
    or reconstructed signs must comply with its provisions violates Tenn. Code Ann. § 13-7-208, the
    grandfather statute, which “is an exception to a restriction that allows all those already doing
    something to continue doing something, even if they would be stopped by the new restrictions.” Coe
    v. City of Sevierville, 
    21 S.W.3d 237
     (Tenn. Ct. App. 2000). The grandfather statute provides a
    constitutional safeguard for a government in the enactment of zoning laws or ordinances which, in
    legal effect, may be ex post facto, and “they protect established businesses from later-enacted
    municipal zoning which would exclude them.” See, Outdoor West of Tenn. Inc. v. City of Johnson
    City, 
    39 S.W.3d 131
     (Tenn. Ct. App. 2000).
    A party seeking the protection of the grandfather statute has the burden of proving that its use
    is a preexisting nonconforming use which qualifies for the protection of the statute. Coe, 21 S.W.3d
    at 243; Lamar Advertising v. City of Knoxville, 
    905 S.W.2d 175
    , 176 (Tenn. Ct. App. 1995).
    Generally, in order to qualify for the exception in Tenn. Code Ann. § 13-7-208, parties must make
    two threshold showings: (1) that there has been a change in zoning and (2) the use to which they put
    their land was permitted prior to the zoning change. Lamar, 905 S.W.2d at 176; Rives v. City of
    Clarksville, 
    618 S.W.2d 502
    , 505 (Tenn. Ct. App. 1981).
    These threshold issues were clearly satisfied by the plaintiff, but the dispositive issue is
    whether the present sign may be destroyed and reconstructed because it is “necessary to the conduct
    of an automobile dealership.” The parties seemingly recognized the significance of this phrase, as
    did the Chancellor; approached negatively, if the Board had found that the proposed sign was
    necessary to the conduct of the plaintiff’s business, Tenn. Code Ann. §13-7-208(d) would be
    applicable and the plaintiff would prevail in this action, assuming appellate review was otherwise
    favorable.
    The defendant argues that subsection (c) of Tenn. Code Ann. § 13-7-208, rather than
    subsection (d) is controlling of the case. Subsection (c) provides:
    Industrial, commercial or other business establishments in operation
    and permitted to operate under zoning regulations or exceptions
    thereto in effect immediately preceding a change in zoning shall be
    allowed to expand operations and construct additional facilities which
    involve an actual continuance and expansion of the activities of the
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    industry or business which were permitted and being conducted prior
    to the change in zoning; provided, that there is a reasonable amount
    of space for such expansion on the property owned by such industry
    or business situated within the area which is affected by the change
    in zoning, so as to avoid nuisances to adjoining landowners. No
    building permit or like permission for construction of landscaping
    shall be denied to an industry or business seeking to expand and
    continue activities conducted by that industry or business which were
    permitted prior to the change in zoning; provided that there is a
    reasonable amount of space for such expansion on the property
    owned by such industry or business situated within the area which is
    affect by the change in zoning, so as to avoid nuisances to adjoining
    landowner.
    In 412 Corp, the import of subsection (c) and (d), as each contrasted, was explained.
    Subsection (c) governs the expansion of existing commercial uses
    while subsection (d) applies to the demolition and replacement of
    facilities. The General Assembly envisioned that property owners
    permitted to continue using their property contrary to the zoning laws
    might desire to expand their businesses or might, for some reason,
    desire to construct replacement facilities. Accordingly, T. C. A. § 13-
    7-208(c) authorizes a property owner continuing to operate its
    business under T. C. A. § 13-7-208(b) “to expand operations and
    construct additional facilities which involve an actual continuation
    and expansion of the activities of the industry or business which were
    permitted and being conducted prior to the change in zoning.”
    Likewise, T. C. A. § 13-7-208(d) authorizes businesses “to destroy
    present facilities and reconstruct new facilities necessary to the
    conduct of such industry or business.”2
    We again addressed the distinction between sections (c) and (d) in Outdoor West of Tenn.,
    Inc. v. City of Johnson City, 
    39 S.W.3d 131
     (Tenn. Ct. App. 2000) as follows:
    Subsection (c) of that statute applies to situations in which the
    business seeks to expand, and provides that in such cases, the
    petitioner shall be allowed to expand operation and construct
    additional facilities which involve an actual continuance and
    2
    It should be noted that the plaintiff did not particularize the section of Tenn. Code Ann. § 13-7-208 it relied
    upon, and when the case was remanded to the Board of Zoning Appeals for further findings, the agreed order limited the
    findings as to whether, under section (d) of the statute, the reconstructed sign was necessary for the continued conduct
    of the plaintiff’s business.
    -4-
    expansion of the activities of the industry or business which were
    permitted and being conducted prior to the change in zoning. . . .
    Subsection (d) applies to situations in which the business seeks to
    demolish and rebuild, and provides that in such cases, the petitioner
    shall be allowed to destroy present facilities and reconstruct new
    facilities necessary to the conduct of such industry of business
    subsequent to the zoning change. . . . The City argues that subsection
    (d) applies, that Lamar has failed to prove that the destruction and
    reconstruction is “necessary to the conduct of such industry or
    business,” and therefore, the judgment of the Trial Court must be
    reversed. We agree with the City that subsection (d) appears to
    require a higher standard of proof by Lamar, since under that section,
    Lamar must show that the reconstruction is “necessary to the conduct
    of [the] industry or business.” The record in this case is not clear as
    to whether Lamar plans for all of the existing signs to be demolished
    and new signs installed, thus implicating subsection (d), or whether,
    in some cases, the existing sign is to be retained by enlarged, thus
    implicating subsection (c).
    The appellant argues that it sought only to continue an activity of its business - advertising -
    and never intended to demolish and rebuild “within the ambit of subsection (d).” But we think the
    plain language of subsection (d) is wholly supportive of the conclusion of the trial judge. See,
    Shelton v. ADS Envtl. Ser., 
    100 S.W.3d 214
     (Tenn. 2003).
    We are not certain of the purport of this argument in light of the litigated issue of the
    plaintiff’s right to replace the existing, non-conforming sign with another non-conforming sign;
    suffice to state that the grandfather provision allows the plaintiff - and thus overrides the ordinance -
    to replace the sign and construct a new one if the reconstruction is necessary to the conduct of his
    dealership.
    The appellant next argues that if Tenn. Code Ann. § 13-7-208(d) controls, the trial court erred
    in finding that the appellant failed to prove by a preponderance of the evidence that a sign of similar
    size and height is necessary to conduct it business. We review this finding de novo with a
    presumption of correctness, Tenn. Code Ann. § 50-6-225(e)(2), Rule 13(d) Tenn. R. App. P., and
    we have reviewed the record to determine where the preponderance of the evidence lies. See,
    Wingert v. Government of Sumner County, 
    908 S.W.2d 921
     (Tenn. 1995). Three witnesses
    testified at the evidentiary hearing before the Board of Zoning Appeals,3 one of whom was R. C.
    Alexander, founder of the Ford dealership in 1979. He now owns eight dealerships. He testified that
    it was crucial that the sign be seen from its location at the I-65 and Highway 96 interchange in
    Franklin, and that if a potential customer looks eastwardly at the interchange, a number of
    3
    By agreement of the parties the testimony of these witnesses could be considered by the trial court in the
    declaratory judgment action and the certiorari action.
    -5-
    competitive automobile dealers may be seen. He testified that without a sign of similar size and
    height “I don’t think I’ll be able to make a living.” His expert witness, Patrick Anderson, who is
    much experienced in the conduct of automobile dealerships, testified that he had studied the
    plaintiff’s business, with emphasis upon the impact and effect of the sign. He testified that a sign
    is an integral part of a commercial business, and that a sign of about the same scale as the existing
    sign is necessary to the conduct of the plaintiff’s business, because of its clear aid in directing
    potential customers to the Ford dealership. Mr. Anderson’s testimony is critiqued because of the
    unsupported assumption that a 61% reduction in the size of the sign would result in a purported 61%
    reduction in the number of people who would see the sign. The trial judge characterized the
    testimony of Mr. Anderson as “not meaningful,” possibly because Mr. Anderson conceded that he
    was not qualified to determine any correlation between the reduction in the size of the sign and the
    plaintiff’s ability to continue in the conduct of its business. An assistant City Planner, Tom Marsh,
    exhibited fourteen photographs of other automobile dealerships in Franklin depicting smaller signs
    advertising their businesses, a point which clearly impressed the trial judge, and by clear inference,
    the Board of Zoning Appeals.
    The plaintiff argues that the grandfather statute protects not merely the right to engage in
    business but the right to engage in business as profitably as before the new regulation was enacted,
    and that if local governments take away the means to conduct the business profitably, they have
    effectively zoned the business out of operation. We have no quarrel whatsoever with this argument,
    but the proof falls far short of supporting a determination that a sign conforming to the new
    ordinance would have the claimed effect on the plaintiff’s business.
    The plaintiff had the burden of proving that the reconstruction of the sign was necessary to
    the continued conduct of its business. This is a heavy burden to show that the administrative action
    was arbitrary or illegal. McCallen v. City of Memphis, 
    786 S.W.2d 633
     (Tenn. 1990). Just how
    heavy the burden is may be found in the statement “if there is any possible means” to uphold a
    zoning decision, whether it be legislative or administrative, the court is bound to do so, McCallen,
    supra.
    The judgment is affirmed at the costs of the appellant.
    ___________________________________
    WILLIAM H. INMAN, SENIOR JUDGE
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