Agenda - Planning Commission - 04/01/2010

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Zoning Bulletin February 25, 2010 I Volume 41 No. 4 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," permit- ted 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 Commis- sion. In doing so, it found, among other things, that the Park was not in operation prior to the Private Act's enactment. Hiwassee appealed. The court of appeals upheld the trial court's grant of injunctive re- lief. In doing so, it held that the Grandfather Clause did not apply to the Park because a mobile home park was a "residential use" (and residen- tial uses were not grandfathered under the Grandfather Clause). Hiwassee again appealed. The Court's Decision: Grant of injunctive relief upheld. 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. Importantly, although not an issue raised by the parties, the court also held that the Grandfather Clause, § 13-7-208(b) (1), applied to county regulations. (Notably this holding abrogated (i.e., annulled; revoked) prior opinions of the court of appeals.) The court explained the issue: Chapter 7 of Title 13 of the TCA is divided into four parts, including Part 1 ("County Zoning") and Part 2 ("Municipal Zoning"). Both Part 1 and Part 2 contain a section on the enforcement of zoning ordinances and remedies for violations of zoning ordinances. However, only Part 2's enforcement and remedies provision includes a grandfather clause —the "Grandfather Clause" (§ 13-7-208(b)(1)); Part 1's corresponding provi- sion does not contain a grandfather clause. Here, the Supreme Court of Tennessee clarified and held that the Grandfather Clause applies not only to Municipal Zoning but also to County Zoning. The court said this was based on the "unambiguous language" of the Grandfather Clause. The language of the Grandfather Clause specified that it applied to zoning changes in "land areas covered by zoning restrictions of a governmental agency of [the] state or its political subdivisions" —thus, "clearly and un- ambiguously includ[ing] counties." The court also held that the Grandfather Clause applied to mobile home parks. The court of appeals had held that it did not because mo- bile home parks were "residential establishments" not protected by the clause. The Supreme Court of Tennessee disagreed. It found that Hiwas- see's Park was a commercial establishment given that: the Park's "occu- pants" were "more realistically classified as customers of a trailer court operation than occupants of `residences"; and Hiwassee was clearly en- gaged "in a `business' in the operation of the [Park]." ® 2010 Thomson Reuters 5 65