Posted by: Patricia Salkin | February 24, 2010

Mobile Home Park Not a Grandfathered Nonconforming Use Since it Was Not In Use When County Enacted the Zoning Change

Hiwassee Village Mobile Home Park, LLC (“Hiwassee”) owned and operated a mobile home park (the “Park”) in the county. In 2002, the county’s planning commission (the “Commission”) sued Hiwassee. The Commission alleged that Hiwassee was operating the Park in violation of the county’s Private Act. The Commission asked the court to enjoin the operation of Hiwassee’s Park.

The county’s Private Act regulated mobile home parks in the county. Among other things, the Private Act made it “unlawful for any person to place or maintain three (3) or more mobile homes for living or sleeping purposes on any premises or tract of land in [the county].” Hiwassee admitted that the Park was not in compliance with the Private Act. However, Hiwassee maintained that, since a previous owner had established the Park before the Private Act took effect, the Park was grandfathered as a prior legal commercial use pursuant to Tennessee Code Annotated § 13-7-208(b)(1). Thus, Hiwassee argued, the Park was entitled to continuing protection as a prior conforming commercial use under § 13-7-208(b)(1). Section 13-7-208(b)(1), known as the “Grandfather Clause,” permitted the continued operation of “any industrial, commercial or business establishment in operation” prior to a zoning change.

The trial court granted the injunctive relief sought by the Commission. In doing so, it found, among other things, that the Park was not in operation prior to the Private Act’s enactment.

Hiwassee appealed twice and the Supreme Court of Tennessee also affirmed the trial court’s grant of injunctive relief to the Commission. It so held because it found that the Park was not grandfathered because it was not yet in operation when the Private Act took effect.

Smith County Regional Planning Commission v Hiwassee Village Mobile Home Park, 2010 WL 252285 (TN 1/22/2010).

The opinion can be accessed here

Editor’s Note: Although this abstract appears in the free Quinlan Zoning News Alerts (1/25/2010), it has the wrong case name and citation in that publication.  For subscription information see: http://west.thomson.com/signup/newsletters/215.aspx


Responses

  1. I’ve been following your blog for a while – then this marvelous Tenn. Supreme Court opinion! This case almost precisely mirrors my own civil case against hayseed neighbors – with their claims of grandfathered business protection, an illegal mobile home, absolutely zero use permits or building permits, relentless commercial commotion and noise, etc. However, my case also includes completely inept code enforcement personnel, self-emasculated municipal officials, and a city attorney for which no words suffice.

    Thank you for providing such a base for self-education in land use law.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Categories

%d bloggers like this: