Agenda - Planning Commission - 01/31/2013 - Special

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October 10, 2012 I Volume 6 I Issue 19 Zoning Bulletin lion tons in weight. Also at that time, no zoning regulations existed in the County. Prior to ASARCO's ownership, various companies had used the Prop- erty for both subsurface and surface mining. ASARCO did not engage in any active mining operations on the Property. In July 1998, American Limestone Company ("ALC"), which was a sub- sidiary of ASARCO, acquired the Property from ASARCO and immediately began to develop it with the intent to mine and quarry the aggregates, includ- ing gravel and crushed stone. On August 17, 1998, the County Commission passed an ordinance which zoned the Property as agricultural, prohibiting any type of surface mining or quarrying on the Property. ALC continued its operations, however, and did not receive a stop work order until December 9, 1998. In August 1999, ALC filed a declaratory judgment action against the County. It asked the court to set aside the stop work order. It argued that it had established a preexisting use on the property pursuant to Tennessee Code An- notated § 13-7-208. At the time the County adopted the ordinance, § 13-7- 208, a "grandfathering" statute, allowed businesses to continue established operations regardless of any prohibitions in a new zoning classification. During the course of the litigation, Ready Mix, USA, LLC ("Ready Mix") because a successor entity of ALC and the record owner of the Property. The trial court eventually concluded that ALC had established a noncon- forming use entitled to protection § 13-7-208. . The County appealed. The Court of Appeals reversed the trial court and dismissed the action, holding that ALC/Ready Mix had failed to exhaust its administrative remedies. Ready Mix appealed. DECISION: Judgment of court of appeals reversed. After first determining that ALC/Ready Mix was not required to exhaust administrative remedies prior to bringing the declaratory judgment action, the Supreme Court of Tennessee held that ALC's activities established a preexist- ing use for mining operations for the purposes of grandfather protection under § 13-7-208. In so holding, the court explained that in order to invoke the protections of § 13-7-208(b), ALC/Ready Mix had to establish: (1) that there had been a change in zoning (either adoption of zoning where none existed previously, or an alteration in zoning restrictions); (2) .that the use to which they put their land was permitted prior to the zoning change; (3) that the business was operat- ing when the change in zoning took effect; and (4) that the current business was the same business that was being conducted when the change in zoning occurred. Here, the court focused its analysis on whether ALC's business was in "operation" at the time of the zoning change. "Mere preparation" of the prop- erty for operations would not be enough to establish a preexisting nonconform- ing use, said the court. Normally, for establishment of operation of a business there had to be "substantial steps in ... construction" and "substantial li- abilities" incurred. However, the court acknowledged that mining and quarry- 10 ©2012 Thomson Reuters