Posted by: Patricia Salkin | June 18, 2019

TN Court of Appeals Finds the Fact that No Construction Could Occur on Three Lots Due to Stormwater Regulations Did Not Constitute Exceptional Hardship for Variance

This post was authored by Matthew Loeser, Esq.

In 1999, the Metropolitan Government of Nashville and Davidson County instituted stormwater regulations that created water quality buffers. Precision Homes, Inc. owned three vacant lots on Miami Avenue along the Cumberland River and entirely within the Zone 1 water quality buffer. Zone 1 was a “no disturb zone” in which the vegetation could not be disturbed, removed or replanted unless a buffer restoration plan had been approved by the Metro Department of Water and Sewerage Services. Additionally, construction was not permitted in Zone 1 without a variance. As such, in 2016, Precision submitted a request for a variance from the stormwater regulations to the Stormwater Management Committee (“SWMC”) so that it could build an 800-square-foot one-bedroom house on each lot. The Metropolitan SWMC denied the request for a variance, and the chancery court affirmed the committee’s denial.

In support of its appeal, Precision pointed to two provisions in the SWM regulations applicable to modifications to the buffer area. Pursuant to Section 6.9.3 of the SWM regulations, “when the application of the buffer area would result in the extreme loss of buildable area, modifications to the width of the buffer area may be allowed through the Stormwater Management Committee appeals process.” Here, the court declined to find this section applicable as Precision had not requested a modification “to the width of the buffer area.” Precision next cited section F1.1.2(1) (l)(ii) of the SWM regulations, which provides that, “where possible, an area equal to the encroached area or equivalent stormwater management practices shall be established elsewhere on the lot or parcel in a way to maximize, or provide equivalent, storm water quality enhancement and protection.” The court did not consider this provision applicable to the present case either, as Precision’s variance request did not involve a modification to the water quality buffer area.

The court next analyzed whether the fact that no construction could occur on these lots without a variance constitute exceptional hardship and/or good and sufficient cause. As to the requirement that denial of the variance would result in “exceptional hardship,” FEMA set forth that hardship that would result from failure to grant a requested variance must be “exceptional, unusual, and specific to the property involved”, and not the personal circumstances of the applicant. Moreover, the unusual physical characteristics must be unique to that property and not be shared by adjacent parcels or be typical of other lots in the community, as was the case here. Accordingly, the judgment of the trial court was affirmed, and the matter was remanded with costs of appeal assessed against the appellant, Precision Homes, Inc.

Precision Homes, Inc. v Metropolitan Government of Nashville and Davidson County, 2019 WL 2395946 (TN App. 6/6/2019)


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