Posted by: Patricia Salkin | May 23, 2016

TN Appeals Court Holds Board’s Finding that Trash Collection Business Did Not Comply with Zoning and was Not Entitled to Nonconforming Use Status

Jimmie D. Gulley operated a private trash-collection business, Kleen–Way Disposal, on a 31.2 acre parcel of land in Robertson County since 1997, at which time the property was zoned “A–Agriculture.” In 2005, the property was rezoned “AG–2 (Agricultural/Residential District).” Kleen–Way Disposal had approximately 4,000 clients, about half of whom lived in Robertson County. Each morning, drivers would report to Mr. Gulley’s property, obtain a garbage truck or pickup truck, and drive around Robertson County to pick up customers’ trash, which would then be taken to the Robertson County refuse collection center. The trucks returned to the property each afternoon and remain parked there overnight. After neighbors complained about the presence of garbage, old cars, and trucks on Mr. Gulley’s property, the Planning and Zoning Commission of Robertson County investigated and determined that the business did not conform with the zoning classification and should cease to operate in that location. The business owner sought review before the board of zoning appeals and, when the board affirmed the commission’s decision, filed a petition for certiorari review in chancery court, which held that the board’s action was not arbitrary and was supported by material evidence.

On appeal, the court addressed whether Tennessee’s ‘grandfather’ clause afforded relief to Mr. Gulley based upon ambiguous language of the Robertson County Zoning Resolution in effect when Mr. Gulley initiated his business operations in 1997. Here, the collection, transportation, or storage of refuse was not included as an “installation,” the maintenance or operation of which would have constituted an “essential service” in 1997. Because he could not show that the use of his land was permitted prior to the zoning change, he was not entitled to the protection of the grandfather clause. Moreover, Mr. Gulley’s use of his property as a terminal for his trucks did not fit within any of the classes of “essential services” and his property did not contain a “facility or system” for the collection and disposal of sewage or refuse, as contemplated in “Class 3” of the 2005 Zoning Ordinance. Accordingly, the court affirmed the trial court’s finding that decision of the Board was supported by substantial and material evidence, and the Board did not act arbitrarily or illegally in reaching its decision.

Gulley v. Robertson County Planning & Zoning Commission, 2016 WL 2898478 (TN. App. 5/12/2016)

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