Agenda - Planning Commission - 05/02/2013

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Zoning Bulletin March 25, 2013 I Volume 7 I Issue 6 ent adult entertainment, so long as that entertainment did not involve nude dancing. Then, 600 Marshall appealed. Among other things, it argued that adult entertainment at its establishment was a grandfathered nonconforming use, and that allowing nude dancing would not expand the nonconforming use. It further argued that, under state law, the City lacked the authority to restrict the expansion of a nonconforming use because the ordinance conflicted with state law, Tenn. Code Ann. § 13-7-208(c). The district court found that allowing 600 Marshall to present frequent nude dancing would expand the nonconforming use in contravention of the City Code. Again, 600 Marshall appealed. DECISION: Affirmed. The United States Court of Appeals, Sixth Circuit, found that the whole dispute as to whether nude dancing at 600 Marshall would illegally expand the nonconforming use was putting "the proverbial cart before the horse." The bottom line, concluded the court, was that nude dancing was not an activity that could be grandfathered because it was not being legally conducted at 600 Marshall when the 1993 Ordinance changed the zoning laws to prohibit adult entertainment in the CBD. The court explained: Both state law, Tenn. Code Ann. § 13-7-208(b)(1), and the City Code, § 16-116-2(A), contained grandfather clauses. Such grandfather clauses, explained the court, provide: "an exception to a restric- tion that allows all those already doing something to continue doing it, even if they would be stopped by the new restriction." To qualify for grandfathering, 600 Marshall had to prove: "(1) that there ha[d] been a change in zoning[;] and (2) that the use to which [it] put [its] land was permitted prior to the zon- ing change." In other words, the grandfather statutes could save only those uses which were legal at the time the change in zoning occurred. The court found it was undisputed that the owner of the premises at 600 Marshall did not have a dance pertnit in 1993 when adult entertainment became a prohibited use in the CBD. Thus, any nude dancing that may have been occurring at that time was done without a permit and therefore was ille- gal under the Dance Hall Ordinance. Again, although "adult entertainment" was permitted under the zoning code until 1993, any compensated "nude danc- ing" had required a permit under the Dance Hall Ordinance and a similar prior version, since 1971. Although nude dancing had occurred at 600 Marshall thought the late 1990s, it was not occurring legally since no dance permit had been issued for the businesses at the 600 Marshall location since at least 1991. Since illegal activities are not entitled to grandfathering, any illegal nude dancing at 600 Marshall in 1993 was not entitled to grandfathering. The fact that 600 Marshall had since obtained a dance permit in 2005 was irrelevant. Since nude dancing was not grandfathered at 600 Marshall, the court found it was unnecessary to determine whether frequent nude dancing would consti- tute an impermissible expansion of a legal nonconforming use; any such nonconforming use was illegal. See also: Coe v. City of Sevierville, 21 S. W.3d 237 (Tenn. Ct. App. 2000). © 2013 Thomson Reuters 7