Posted by: Patricia Salkin | October 15, 2014

TN Appeals Court Finds Sign Ordinance is a Non-Zoning Safety Restriction

In 2000 Lamar Tennessee, LLC (“Lamar”), a company that advertises products through the use of billboards, built a standard billboard on property located in Metropolitan Nashville (“Metro”).  In 2006 the zoning was changed from “CS” —Commercial Service— to “MUL”—Mixed Use Limited, a district in which billboards are not permitted; in accordance with Tenn.Code Ann. § 13–7–208.  Lamar applied to Metro’s Department of Codes and Building Safety for a permit to replace its existing billboard with a digital one. The application was denied by the zoning administrator on the ground that the change from standard to digital was a “change from one non-conforming use to another.”  Lamar then appealed to the Metropolitan Board of Zoning Appeals, which reversed the administrator’s decision and granted the permit.  Days later, the permit was revoked on the ground that the proposed digital billboard violated a provision in the zoning code.  Lamar again appealed to the Board of Zoning Appeals, which held that the permit had been revoked in error and reinstated the permit.  The Metropolitan Government then filed a petition for a writ of certiorari seeking review of the Board’s decision; the trial court reversed the decision granting the permit and Lamar appealed.

Lamar contended that Metropolitan Code § 17.32.050 H 2 is a zoning regulation to which the Non–Conforming Property Act, Tenn.Code Ann. § 13–7–208(b)(1), applies and permits the replacement of the mechanical sign with a digital one. Metro argued that the ordinance is a non-zoning safety restriction and that Lamar’s proposed use is not protected by the statute. The court analyzed this claim under the two-part “substantial effects” test. The first step requires courts to review the terms of the challenged ordinance and the municipality’s comprehensive zoning plan to determine whether the ordinance is so closely related to the zoning plan that it can be fairly characterized as tantamount to zoning. The second step requires the courts to determine whether the challenged ordinance substantially affects the use of property that is the subject of the litigation. The court concluded that, while Code § 17.32.050 H 2 is closely related to the zoning plan, it is not “tantamount to zoning”; furthermore, the application of the ordinance under the circumstances presented did not substantially affect Lamar’s use of the property.

Accordingly, because Code § 17.32.050 H 2 was found not to be a zoning ordinance, the statutes governing zoning at Tenn.Code Ann. § 13–7–201, et seq., did not apply and the protections of the Non–Conforming Property Act were not triggered. The court therefore affirmed the judgment of the trial court.

Metropolitan Government of Nashville & Davidson County v Board of Zoning Appeals of Nashville & Davidson County, 2014 WL 5147757 (TN App. 10/13/2014)


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