Agenda - Planning Commission - 08/03/2017

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June 25, 2017 I Volume 11 I Issue 12 Zoning Bulletin permits. CBS appealed to the Board of Zoning Appeal ("ZBA"). The ZBA voted to issue both permits. Metro then appealed. On appeal, on the merits, Metro argued that the BZA permits violated a Metro ordinance requiring 2,000 feet between digital billboards and a set distance between digital billboards and residential property. CBS did not dispute that the proposed digital billboards failed to comply with the Metro ordinance. Rather, CBS asserted that the proposed billboards qualified as a legal, preexisting, nonconforming use protected by the grandfather clause in Tenn. Code Ann. § 13-7-208. To invoke the protections of Tenn. Code Ann. § 13-7-208, CBS had to make two threshold showings. The first of those showings was that: "there has been a change in zoning (either adoption of zoning where none existed previously, or an alteration in zoning restrictions)." Thus, in order for Tenn. Code Ann. § 13-7-208 to apply, the applicable ordinance had to be a zoning ordinance. Here, Metro and CBS disagreed as to whether the sign ordinance ap- plicable here constituted a "zoning ordinance," with the grandfather clause Tenn. Code. Ann. § 13-7-208 therefore either applicable or inapplicable. The trial court concluded that the ordinance at issue —governing digital display billboards was a "lighting regulation, not a zoning regulation, and that Tenn. Code. Ann. § 13-7-208 therefore [did] not apply." The trial court thus determined that the BZA "erred in issuing permits to CBS to allow conversion of its static billboards in violation of the distance requirements in the Metro Code." CBS and the Property Owners appealed. DECISION: Judgment of trial court affirmed. The Court of Appeals of Tennessee held that the sign ordinance ap- plicable here was not a zoning ordinance, but rather was a safety ordinance, and therefore was not subject to the applicability of the grandfather clause of Tenn. Code. Ann. § 13-7-208. In so holding, the court looked to prior caselaw that had adopted a "substantial effect" test for determining whether an ordinance is a zon- ing ordinance. Under that test, if an ordinance is found to "substantially affect" the property owners' use of land, it is concluded to be a zoning ordinance. More specifically, the "substantial effect test" is "a two-part test that examines both the terms and the effects of the challenged ordinance." Under the first step, courts review the terms of the chal- lenged ordinance and the municipality's comprehensive zoning plan "to determine whether the ordinance is so closely related to the zoning plan that it can be fairly characterized as tantamount to zoning." Under the second step, courts determine whether the challenged ordinance "substantially affects the use of the property that is the subject of the litigation." If both parts of the test are satisfied, a challenged ordinance may be held to be tantamount to zoning. 10 © 2017 Thomson Reuters