Lamar Tennessee, LLC v. Metropolitan Board of Zoning Appeals

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
February 5, 2008 Session
LAMAR TENNESSEE, LLC, ET AL. v. METROPOLITAN BOARD OF
ZONING APPEALS, ET AL.
Appeal from the Chancery Court for Davidson County
No. 05-2868-II Carol L. McCoy, Chancellor
No. M2007-00883-COA-R3-CV - Filed March 5, 2010
The Metropolitan Government of Nashville and Davidson County adopted a redevelopment
plan for an area of the city which included the site of a long-existing billboard. The
Tennessee Department of Transportation subsequently ordered the removal of the billboard
to accommodate a road-widening project. The sign’s owner filed an application for a permit
to relocate the sign on another portion of its leasehold, but the city declined to approve the
application because the redevelopment plan totally prohibits signs of that type. The sign
company filed a petition for certiorari in the Chancery Court of Davidson County, asserting
that Tenn. Code Ann. § 13-7-208 of the zoning statutes gave it the right to replace the sign.
The court agreed, and ordered the city to re-evaluate the permit application in accordance
with the statutory provisions for a pre-existing non-conforming use after a change of zoning.
We reverse, finding that the grandfather provisions of Tenn. Code Ann. § 13-7-208 have no
applicability to the restrictions contained in redevelopment plans under Tenn. Code Ann. §
13-20-201 et seq.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Reversed
P ATRICIA J. C OTTRELL, P.J., M.S., delivered the opinion of the court, in which F RANK G.
C LEMENT, J R. and A NDY D. B ENNETT, JJ., joined.
Robert M. Holland, Jr., Donald P. Paul, James A. Beakes, III, Nashville, Tennessee, for the
appellant, Metropolitan Development and Housing Agency.
Sue B. Cain, Deputy Director of Law, Department of Law of the Metropolitan Government
of Nashville and Davidson County; Lora Barkenbus Fox, J. Brooks Fox, Paul J. Campbell,
II, Assistant Metropolitan Attorneys for the appellant, Metropolitan Board of Zoning Appeals
and Metropolitan Government.
Lawrence P. Leibowitz, C. Ryan Stinnett, Knoxville, Tennessee, for the appellees, Lamar
Tennessee, LLC d/b/a Lamar Advertising of Nashville and Frank C. May.
OPINION
The facts of this case are not in dispute, and its resolution depends entirely on a
question of law: whether regulations enacted as part of a plan for a redevelopment district
are “zoning” restrictions or regulations such that under the grandfather provisions of Tenn.
Code Ann. § 13-7-208 the owner of a pre-existing non-conforming use in the redevelopment
district is entitled to the benefits of the grandfather statute.
I. F ACTS
Since 1957, Lamar Tennessee, L.L.C. (“Lamar”) has owned a billboard on leased
property south of downtown Nashville near the Cumberland River. The billboard was legally
erected, properly permitted, and in conformity with the zoning ordinance in place at the time
it was first built. In 1980, the Metropolitan Development and Housing Authority (“MDHA”)
drafted a plan to establish the Rutledge Hill Redevelopment District to facilitate the
improvement of a largely commercial area close to downtown that was deemed to be
blighted. See Tenn. Code Ann. § 13-20-201 et seq. Lamar’s leasehold lies totally within the
boundaries of that district. The Metropolitan Government of Nashville and Davidson County
(“Metro”) adopted the proposed redevelopment plan on April 1, 1980. Amendments to the
plan were enacted in 1986, 1987, 1991, 1997 and 2006.
Around 2003, construction began on the Gateway Bridge across the Cumberland
River. Because of necessary road widening on Gateway Boulevard at the entrance to the
bridge, the Tennessee Department of Transportation ordered Lamar to relocate its billboard.
On May 30, 2003, Lamar submitted an application for a building permit to the office
of the Metro Codes Administration so it could re-erect its billboard on another portion of its
leasehold. Metro referred the matter to MDHA, which is charged with determining whether
an application for a building permit in the redevelopment district is compatible with the
redevelopment plan. Metro took the position that it could not issue a building permit unless
all the regulatory approvals had been obtained.
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The redevelopment plan prohibited billboards or other off-premises signs of the type
Lamar operated. However, the billboard predated the creation of the development district,
and neither Metro nor MDHA had taken any action to have it removed.
According to the affidavit of Joe Cain, MDHA’s Assistant Director for Real Estate
and Urban Development, once MDHA has made its findings, the Codes Administration may
then determine whether the requested permit should be issued. MDHA deferred action on
Lamar’s application for over a year, stating the delay was needed because its attorney had to
review the applicable law before making a decision, and Metro took no action on the permit.
Unhappy with the delay, in 2004, Lamar filed suit against Metro Government and
MDHA in the Chancery Court of Davidson County. Lamar asked the court to grant a writ
of mandamus to compel issuance of the building permit. The defendants filed a motion to
dismiss the suit, citing Lamar’s failure to exhaust its administrative remedies. The court
granted the motion to dismiss without prejudice and ordered Lamar to file an appeal to the
Metropolitan Board of Zoning Appeals (“the BZA”).
The hearing on Lamar’s appeal to the BZA was conducted on September 15, 2005.
Prior to the hearing, the Board received a memorandum from the Metropolitan Planning
Department recommending that the billboard permit be denied, citing the requirements of the
Rutledge Hill Development District as well as the goals of the Subarea 9 Center City Plan,
which contemplated the development of Gateway Boulevard as “a pedestrian friendly urban
street.” Additionally, numerous property owners and residents of condominiums in the
developing neighborhood close to the billboard site wrote to the BZA in opposition to the
permit.
At the BZA hearing, Lamar’s attorney argued that Tenn. Code Ann. § 13-7-208 of the
zoning statutes gave the sign company the right to rebuild the sign. Under that statute,
owners of pre-existing non-conforming business establishments may continue to operate
despite any zoning change, and may even “destroy present facilities and reconstruct new
facilities necessary to the conduct of such industry or business . . .” Tenn. Code Ann. § 13-7-
208(d). Off-site signs are specifically included among the businesses entitled to destroy and
reconstruct their facilities. Tenn. Code Ann. § 13-7-208(h).
MDHA’s representative argued that while the requirements of the redevelopment plan
are land use regulations, they are not the same as zoning, and thus that there was no zoning
change that would have triggered the grandfathering provisions of Tenn. Code Ann. § 13-7-
208. Lamar’s attorney responded that this was a distinction without a difference, noting that
“you can call an orange an apple, but it’s still going to taste the same.” The BZA also heard
from several residents of the neighborhood who testified in opposition to the billboard, as did
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Metro Councilman Mike Jameson. At the conclusion of testimony, the BZA unanimously
affirmed the zoning administrator’s decision not to issue the permit, “since MDHA denied
your request for a billboard.”1 Lamar then filed a petition for writ of certiorari to the
Chancery Court.
The Chancery Court conducted another hearing, and then announced its decision in
an eighteen page Memorandum and Order filed on March 23, 2007. The court discussed the
history of land use planning in Tennessee, including the legislative grant to Metro (and other
municipalities) of the authority to regulate land use through both the zoning statutes and
through the creation of housing authorities that can improve blighted areas by establishing
redevelopment districts. The court also acknowledged the limited parameters of a trial
court’s authority to review the action of an inferior tribunal under a petition for writ of
certiorari. Such a review is limited to whether the inferior board or tribunal exceeded its
jurisdiction or acted illegally, arbitrarily or fraudulently.
The court concluded that the grandfather provisions of Tenn. Code Ann. § 13-7-208
were applicable to Lamar’s permit application and thus the land use regulations promulgated
by ordinance as part of a local redevelopment plan could not trump the requirements of the
zoning statutes enacted by the legislature. Since the Zoning administrator and the BZA had
the authority to act on Lamar’s permit application, the court concluded that their failure to
act was arbitrary, “particularly in light of the Rutledge Hill Development Plan’s own
language.”2 The court accordingly ordered the city to re-evaluate Lamar’s permit application
in accordance with the provisions for pre-existing non-conforming under the zoning statute.
This appeal followed.
1
Lamar points out that there was really nothing for the BZA to affirm, since there had been no
decision one way or another on its application, by either MDHA or Metro Codes Administration. Lamar
argues that by characterizing the defendants’ failure to act as a denial of the permit, and then affirming the
denial, the BZA acted arbitrarily, capriciously and/or illegally. The trial court’s order noted that at the
hearing before the BZA, the MDHA stated that it had denied the permit.
2
There is no dispute that the trial court erred when it found the Redevelopment Plan itself allowed
pre-existing uses. The trial court was referring to language in the 1980 version of the redevelopment plan
that reads, “[e]xisting uses in the area will be treated with the non-conforming, non-complying provisions
of the Metro Zoning Ordinance.” Metro points out, however, that the cited language was removed from the
redevelopment plan by Ordinance No. 086-1131, which was enacted by the Metro Council on April 1, 1986.
On appeal, Lamar does not dispute this point.
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II. S TANDARD O F R EVIEW A PPLICABLE T O A CTIONS O F T HE BZA
The proper vehicle by which to seek judicial review of decisions of the local board
of zoning appeals is the common law writ of certiorari, because such an action is
administrative or quasi-judicial in nature, since it involves application of an existing zoning
code to a particular set of facts. McCallen v. City of Memphis, 786 S.W.2d 633, 639-40
(Tenn. 1990); Moore & Associates, Inc. v. West, 246 S.W.3d 569, 576 (Tenn. Ct. App. 2005);
City of Brentwood v. Metropolitan Bd. of Zoning Appeals, 149 S.W.3d 49, 57 (Tenn. Ct.
App. 2004);Weaver v. Knox County Bd. of Zoning Appeals, 122 S.W.3d 781, 783-84 (Tenn.
Ct. App. 2003); Wilson County Youth Emergency Shelter, Inc. v. Wilson County, 13 S.W.3d
338, 342 (Tenn. Ct. App. 1999). Boards of zoning appeals generally engage in enforcing,
applying, or executing law already in existence. Weaver, 122 S.W.3d at 784; Wilson County
Youth Emergency Shelter, 13 S.W.3d at 342.
The scope of review under the writ of certiorari is quite limited. Harding Academy
v. Metropolitan Gov’t of Nashville and Davidson County, 222 S.W.3d 359, 363 (Tenn. 2007);
Willis v. Tennessee Dep't of Correction, 113 S.W.3d 706, 712 (Tenn. 2003). In common law
writ of certiorari proceedings, courts review a lower tribunal’s decision only to determine
whether that decision maker exceeded its jurisdiction, followed an unlawful procedure, acted
illegally, arbitrarily, or fraudulently, or acted without material evidence to support its
decision. Willis, 113 S.W.3d at 712; Petition of Gant, 937 S.W.2d 842, 844-45 (Tenn. 1996)
(quoting McCallen v. City of Memphis, 786 S.W.2d at 638).
Under the certiorari standard, courts may not (1) inquire into the intrinsic correctness
of the lower tribunal’s decision, Arnold v. Tennessee Bd. of Paroles, 956 S.W.2d 478, 480
(Tenn. 1997); Powell v. Parole Eligibility Rev. Bd., 879 S.W.2d 871, 873 (Tenn. Ct. App.
1994); (2) reweigh the evidence, Hoover, Inc. v. Metro Bd. of Zoning App., 924 S.W.2d 900,
904 (Tenn. Ct. App. 1996); or (3) substitute their judgment for that of the lower tribunal. 421
Corp. v. Metropolitan Gov’t of Nashville, 36 S.W.3d 469, 474 (Tenn. Ct. App. 2000).
Further, illegal, arbitrary or fraudulent actions include: (1) the failure to follow the
minimum standards of due process; (2) the misrepresentation or misapplication of legal
standards; (3) basing a decision on ulterior motives; and (4) violating applicable
constitutional standards. Harding Academy, 222 S.W.3d at 363 (citing Hoover, Inc. v. Metro
Bd. of Zoning Appeals, 924 S.W.2d at 904). The same limitations apply to the scope of
review of the appellate courts, which “is no broader or more comprehensive than that of the
trial court with respect to evidence presented before the Board.” Watts v. Civil Service Board
for Columbia, 606 S.W.2d at 277
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The facts of this case are not in dispute, and the only question before this court is
whether Lamar is entitled to reconstruct its billboard as a pre-existing non-conforming use
under the grandfathering provisions of Tenn. Code Ann. § 13-7-208, or whether it is
forbidden to do so because of the prohibition against billboards in the Rutledge Hill
Redevelopment Plan. This issue of statutory interpretation is a question of law, and on
appeal this court reviews questions of law de novo, according no presumption of correctness
to the trial court’s conclusions. Colonial Pipeline Co. v. Morgan 263 S.W.3d 827, 836
(Tenn. 2008); Ganzevoort v. Russell, 949 S.W.2d 293, 296 (Tenn. 1997).
III. A NALYSIS
A. The Rutledge Hill Redevelopment Plan
As the trial court noted, local governments lack the inherent authority to control the
use of private property within their boundaries because all such authority is derived from the
State of Tennessee. Smith County Regional Planning Commission v. Hiwassee Village
Mobile Home Park, 2010 WL 252285, at *6 (Tenn. Ct. App. Jan. 22, 2010); Lafferty v. City
of Winchester, 46 S.W.3d 752, 757 (Tenn. Ct. App. 2000). The General Assembly granted
zoning powers to local governments starting in 1935, so they could control the use of land
within their boundaries. See Tenn. Code Ann. § 13-7-101 et seq. The General Assembly
also authorized municipalities to create housing authorities, with broad powers, including the
power of eminent domain in appropriate cases. Tenn. Code Ann. § 13-20-104(17).
The Rutledge Hill Redevelopment Plan, enacted pursuant to Tenn. Code Ann. § 13-
20-201 et seq., sets out the following limitations on signs within the development district:
Signs are limited to those which apply only to the use or business conducted
on the same site and to incidental signs for the convenience and direction of
the public or of a clearly general nature such as, to portray time, temperature,
or announcements of activities taking place at the location. Signs will be
subject to review and approval of MDHA, and will be permitted only when
designed and placed in harmony with the improvements upon the building site
and surrounding development. Billboards, roof signs and flashing, moving or
seeming to move or intermittently illuminated signs shall not be permitted.
B. The Grandfather Statute And Applicable Rules Of Construction
Tenn. Code Ann. § 13-7-208(b)-(d) sets out the basis for Lamar’s argument that it is
entitled to demolish, rebuild, and expand its billboard:
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(b)(1) 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 restrictions 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.
(2) When the use permitted to continue to expand, or to be rebuilt pursuant to
any subsection of this section is an off-premises sign, such use shall not
preclude any new or additional conforming use or structure on the property on
which the sign structure is located or on any adjacent property under the same
ownership; provided, however, that any such new or additional use or
structure does not result in any violations of the applicable zoning restrictions
other than those nonconformities associated with the off-premises sign as
allowed under this subdivision (b)(2).
(c) 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 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 or 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 affected by the change in zoning, so as to avoid nuisances to
adjoining landowners.
(d) 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
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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 regulations 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 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.
Distilled to its essential point, the dispute between the parties is whether the
grandfather provisions of Tenn. Code Ann. § 13-7-208 apply when the local government
action is taken as part of a redevelopment plan under Tenn. Code Ann. § 13-20-201 et seq.
that affects preexisting zoning but is not taken as part of a revision in zoning under the local
government’s zoning authority.3
C. I NTERPRETATION OF R ELEVANT S TATUTES
In order to understand whether Tenn. Code Ann. § 13-7-208 was intended to protect
property owners in the event of redevelopment under Tenn. Code Ann. § 13-20-201 et seq.,
we must turn to the rules of statutory construction. The primary rule of statutory construction
is “to ascertain and give effect to the intention and purpose of the legislature.” Walker v.
Sunrise Pontiac - GMC Truck, Inc., 249 S.W.3d 301, 309 (Tenn. 2008); LensCrafters, Inc.
v. Sundquist, 33 S.W.3d 772, 777 (Tenn. 2000). To determine legislative intent, one must
look to the “natural and ordinary meaning” of the language used in the statute itself without
“forced or subtle construction that would limit or extend the meaning of the language.”
Walker, 249 S.W.3d at 309; Lipscomb v. Doe, 32 S.W.3d 840, 844 (Tenn. 2000). We must
examine any provision within the context of the entire statute and in light of its over-arching
purpose and the goals it serves. State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000); Cohen
v. Cohen, 937 S.W.2d 823, 828 (Tenn. 1996); T.R. Mills Contractors, Inc. v. WRH
Enterprises, LLC, 93 S.W.3d 861, 867 (Tenn. Ct. App. 2002). The statute should be read
3
Lamar argues quite correctly that Tenn. Code Ann. § 13-7-208 preempts any conflicting local
ordinance. This position, however, begs the question whether Tenn. Code Ann. § 13-7-208 applies when the
local enactment at issue is a redevelopment plan.
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“without any forced or subtle construction which would extend or limit its meaning.”
National Gas Distributors, Inc. v. State, 804 S.W.2d 66, 67 (Tenn. 1991). As our Supreme
Court has said, “[w]e must seek a reasonable construction in light of the purposes, objectives,
and spirit of the statute based on good sound reasoning.” Scott v. Ashland Healthcare
Center, Inc., 49 S.W.3d 281, 286 (Tenn. 2001) (citing State v. Turner, 913 S.W.2d 158, 160
(Tenn. 1995)).
Courts are also instructed to “give effect to every word, phrase, clause and sentence
of the act in order to carry out the legislative intent.” Tidwell v. Collins, 522 S.W.2d 674,
676-77 (Tenn. 1975). Courts must presume that the General Assembly selected these words
deliberately and that the use of these words conveys some intent and carries meaning and
purpose. Eastman Chemical Co. v. Johnson, 151 S.W.3d 503, 507 (Tenn. 2004); Tennessee
Growers, Inc. v. King, 682 S.W.2d 203, 205 (Tenn.1984); Tenn. Manufactured Housing
Ass’n. v. Metropolitan Gov’t., 798 S.W.2d 254, 257 (Tenn. Ct. App. 1990).
It is critical to our analysis to note that although Tenn. Code Ann. § 13-7-208 pertains
to zoning, the usual rule pertaining to construction of zoning provisions does not apply.
When the issue is whether a zoning provision is applicable, i.e. whether it restricts the use
of property, then any ambiguity must be resolved in favor of an owner’s unrestricted use of
his or her property. State ex rel Morris v. Nashville, 343 S.W.2d 847, 849 (Tenn. 1961); 421
v. Metropolitan Government, 36 S.W.3d at 475-76. However, once it is established that a
zoning restriction applies and the question is whether the grandfather provision of Tenn.
Code Ann. § 13-7-208 creates an exception to an otherwise valid and applicable zoning
restriction, then Tenn. Code Ann. § 13-7-208 must be construed against the landowner. In
Smith County, our Supreme Court recently found:
A grandfather clause is defined as “an exception to a restriction that allows all
those already doing something to continue doing it, even if they would be
stopped by the new restriction.” B LACK’S L AW D ICTIONARY 629 (5th ed.
1979). A grandfather clause exception in a statute must be construed strictly
against the party who seeks to come within the exception. Teague v. Campbell
County, 920 S.W.2d 221 (Tenn. Ct. App. 1995).
Id., at *6 (quoting Lamar Tennessee, LLC v. City of Hendersonville, 171 S.W.3d 831, 835-36
(Tenn. Ct. App. 2005) and Coe v. City of Sevierville, 21 S.W.3d 237, 243 (Tenn. Ct. App.
2000)); Outdoor West of Tennessee, Inc. v. City of Johnson City, 39 S.W.3d 131, 135 (Tenn.
Ct. App. 2001); Capps v. Metropolitan Government of Nashville and Davidson County,
M2007-01013-COA-R3-CV, 2008 WL 5427972, at *9, (Tenn. Ct. App. Dec. 31, 2008)(no
Tenn. R. App. P. 11 application filed); B.F. Nashville v. City of Franklin, M2003-00180-
-9-
COA-R3-CV, 2005 WL 127082 (Tenn. Ct. App. Jan. 21, 2005).4 Consequently, while
interpreting Tenn. Code Ann. § 13-7-208, we must construe it strictly against Lamar’s
position that the statute excuses Lamar from complying with the billboard prohibition in the
Rutledge Hill Redevelopment Plan.
D. Applicability Of The Grandfather Statute To Lamar’s Permit Application
With the foregoing rules of construction in mind, we now turn our attention to the
issue whether Tenn. Code Ann. § 13-7-208 is applicable when the land use revision results
from a redevelopment plan under Tenn. Code Ann. § 13-20-201 et seq.
Tenn. Code Ann. § 13-7-208 is a grandfather statute, which allows all those already
doing something to continue doing it, even though they would be prohibited by later
enactments. Coe v. City of Sevierville, 21 S.W.3d at 243, (quoting B LACK’S L AW
D ICTIONARY, 629 (5th Ed. 1979)). The goal behind the enactment of Tenn. Code Ann. § 13-
7-208 was “to protect established businesses from later-enacted municipal zoning which
would exclude them.” Outdoor West of Tenn. v. Johnson City, 39 S.W.3d at 131. A party
seeking its protection 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 Adver.
of Tenn., Inc. 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).
There is no dispute that the second prong of Rives is met, i.e., prior to the
redevelopment plan, the sign complied with applicable zoning ordinances. The question is
whether there has been a “zoning change” by the redevelopment plan as that term is used in
Tenn. Code Ann. § 13-7-208.
First, we must look to the plain meaning of the language in Tenn. Code Ann. § 13-7-
208. Subsection (b) thru (d) specify that pre-existing uses of land are protected from changes
in “zoning restrictions” and “zoning regulations.” By its express terms, the statutory
4
The Tennessee Supreme Court favorably cited Outdoor West in Exxon Corp. v. Metropolitan
Government of Nashville and Davidson County, 72 S.W.3d 638, 642 (Tenn. 2002), when it held that the
grandfather provision of Tenn. Code Ann. § 57-5-109 must be strictly construed against the one seeking its
protection.
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exception in Tenn. Code Ann. § 13-7-208 is limited to changes in “zoning” restrictions or
regulations.
There is no dispute that the Rutledge Hill Redevelopment Plan was enacted pursuant
to the statutory scheme authorizing local governments to redevelop blighted areas under
Tenn. Code Ann. § 13-20-2015 et seq. and not under the statutory scheme authorizing local
government to enact zoning ordinances. In decisions outside the context of Tenn. Code Ann.
§ 13-7-208, courts have drawn a distinction between redevelopment plans and zoning. In
KLN Associates v. Metro Development & Housing Agency, 797 S.W.2d 898 (Tenn. Ct. App.
1990), the court noted:
The General Assembly has not limited local governments’ authority to
control the private use of property to the enactment of zoning ordinances. The
counties and cities were first empowered to adopt zoning ordinances in 1935.
However ten years later, the General Assembly granted them the power to
redevelop blighted areas. In order to initiate a redevelopment project, Tenn.
Code Ann. § 13-20-203(a)(1)(B) required the local legislative body to approve
a “redevelopment plan” that “indicate[d] proposed land uses and building
requirements in the area.”
Id. at 902. The statutory authorization for redevelopment plans and urban renewal plans
required preparation of plans containing zoning and planning changes. Id. The court noted,
however, that simply because the plan contains zoning changes “does not transform it into
a zoning ordinance.” Id. at 903.
In order for a redevelopment plan to be effective, the plan approved by the governing
body, among other things, must be “sufficiently complete” to “indicate its relationship to
definite local objectives as to appropriate land uses” and “indicate proposed land uses” in the
area. Tenn. Code Ann. § 13-20-203. There is no question that a redevelopment plan may
affect preexisting zoning. A redevelopment plan is not, however, “zoning.” The
redevelopment plan was not undertaken pursuant to a local government’s zoning authority
and, as such, is not a part of the local government’s zoning restrictions. Since the change
contemplated by Tenn. Code Ann. § 13-7-208 is that of zoning, then by its plain terms a
5
The trial court found that the Redevelopment Plan was an “alternative zoning process.” On appeal,
Metro explained the trial court misinterpreted a provision in the Plan that provided that a special zoning
district may be considered within the Redevelopment District at a future date, not that the Plan itself was a
special zoning district. Lamar does not challenge Metro’s explanation in its brief and does not argue that
the Redevelopment Plan is zoning, only that it affects zoning and is “tantamount to zoning.”
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redevelopment plan does not trigger its protections.6 Consequently, under the plain meaning
of the statute, it has no applicability to a redevelopment plan change.
However, Lamar argues quite logically that the Rutledge Hill Redevelopment Plan has
the effect of changing the use to which the property of issue may be put and is thus
“tantamount” to a zoning change. Lamar argues “if the Redevelopment Plan will impact or
supercede current zoning regulations, then the Plan itself must be a zoning ordinance.”
While the appeal of this position is undeniable, we must, however, be mindful of the
requirement that the grandfather provisions of Tenn. Code Ann. § 13-7-208(b) thru (d) must
be strictly construed against Lamar as the party who seeks an exception to the requirements
of the redevelopment plan. Tenn. Code Ann. § 13-7-208 allows exceptions to zoning
restrictions, not to redevelopment plans that are “tantamount to zoning.” Allowing Tenn.
Code Ann. § 13-7-208 to create exceptions to anything other than zoning restrictions would
be in contravention of its plain terms and in contravention of our obligation to construe the
statute strictly. If the legislature had intended to allow pre-existing uses in the event of a
redevelopment plan or other land use restriction, it could have done so.7
On a final point, Lamar argues that the BZA acted arbitrarily when it found that the
failure by MDHA to act on the permit application constituted a denial. We do not find this
constituted error for at least two reasons. First, the BZA may utilize its discretion to find that
failure to approve the permit for a year was a denial. Second, as noted by the trial court, the
BZA heard testimony from the MDHA that it refused to approve the permit because it
violated the redevelopment plan. It would place form over substance to find this to be error
warranting remand to the BZA.
IV. C ONCLUSION
The trial court is reversed. Costs of this appeal are taxed to Lamar Tennessee, L.L.C.,
d/b/a Lamar Advertising of Nashville and Frank C. May. for which execution may issue if
necessary.
_____________________________________
PATRICIA J. COTTRELL, P.J., M.S.
6
See B.F. Nashville, Inc. v. City of Franklin, M2003-00180-COA-R3-CV, 2005 WL 127082, *at
13n.10 (Tenn. Ct. App. Jan. 21, 2005) (finding that Tenn. Code Ann. § 13-7-208 was applicable to a sign
ordinance enacted pursuant to zoning authority).
7
The local government is free, of course, to provide exceptions in the redevelopment plan itself but
we conclude that the legislature has not so required in Tenn. Code Ann. § 13-7-208
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