Agenda - Planning Commission - 03/06/2008

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'. , ..-----, oil j' February 10, 20081 Volume 21No. 3 Phillips argued that Tennessee law protected his non-conform- ing use. Specifically, Phillips pointed to Tennessee Code Annotated Section 13-7-208. The statute provided that after there was a zon- ing change, any non-conforming "industrial, commercial or busi- ness establishment" was allowed to continue operations that were lawful pr,ior to the zoning change. This provision "grandfathered" non-conforming uses as long as that there was "no change in use of the land" by the industry or business. A' provision of the stat- ute added in 2004 allowed for a 30 month discontinuance of the non-conforming use. Any longer discontinuance, the statute said, required the property to come into compliance with existing zon- ing regulations. Phillips argued that the statute protected his use of the property as a multi-family dwelling because there was no change in use. He also argued that if the 2004 provision of the statue applied, the property was not vacant for more than thirty months~ and there- fore the use was protected. Phillips further argued that, in any case, there was never a discontinuance of the non-conforining use in violation of the city's ordinance. This, Phillips claimed, was be- cause there was no intent to abandon the property and the prop- erty was always held out as a multiple rental property. Phillips and his mother claimed that, prior to the purchase, each was told by , a city. employee that the non-conforming multi-family use on the property was grandfathered. Phillips also noted that, prior to his purchase: the property was advertised as a three-unit rental; was taxed by the county as commercial property; there was no consoli- dation of any of the units into one units; that repairs and renov~- tions were undertaken without any intent to combine units; that electricity' was supplied to all units throughout the relevant time period; and that except for when they were being renovated, the units were always available to let. The trial court found for the city. The court prohibited Phillips from using the property other' than as a single-family dwelling. Phillips appealed. DECISION: Judgment affirmed. The court found that the Tennessee statute protected only "in- dustrial, commercial or business establishment[s]." The court not- ed that "residential" use was distinct from ,the uses protected by the statute. The court found that Phillips sought to' use the prop- erty for residential use. Accordingly, the court said, only the city's ordinance applied in the matter. 11 151