Court strictly applied local ordinances to deny landowner's attempt to grandfather residential use of buildings

JAMES D. JACKS v. CITY OF MILLINGTON BOARD OF ZONING APPEALS (Tenn. Ct. App. January 8, 2009).

On appeal, the crux of Appellant's argument is that his local zoning board erred in determining that he could not use two structures on his property for human occupation. In support of this contention, Appellant argues that when reviewing the zoning board's decision, the trial court applied the wrong standard of review, misconstrued the zoning ordinances, excluded admissible evidence, and should have applied the doctrines of laches and equitable estoppel. On appeal, Appellee also asserted that Appellant's argument was moot. Because we do not agree that Appellee's case is moot, we review the merits of Appellant's claim. Finding no error, however, we affirm the judgment of the trial court.

Opinion may be found at the TBA website:

http://www.tba2.org/tba_files/TCA/2009/jacksj_010809.pdf 

" 5045 could not be used for human occupation because the 1986 Ordinance only permitted one dwelling per lot...Because the parties agreed that 5049 is used as a principal residence, 5045 could not also be considered a principal residence.  Section 14- 603(1)(b) permits accessory buildings on R-2 Residential District lots, and the Board of Zoning Appeals, therefore, found that 5045 could lawfully be used as an accessory building.  Millington, Tenn., Code 14-603(1)(b) (2005).  Because accessory buildings, however, may not be used for human occupation, Mr. Jacks still may not use 5045 to house people.  Millington, Tenn., Code 14-603(12)(a) (2005)." Id.

"Although 14-603(1) permits R-2 Residential District lots to be used for single-family dwellings, it permits this use on lots that meet the minimum lot area, minimum lot width, minimum depth, etc. and in structures that meet a maximum percentage of lot coverage, number of buildings, height requirements, etc.  Millington, Tenn., Code 14-603 (2005).  We believe that it was reasonable, therefore, for the Board of Zoning Appeals to interpret these regulations together to permit a structure to be used as a single-family dwelling only if the lot that structure rests upon conforms to the 1986 Ordinance.  There is no dispute that both Lot 2 and 5047 are nonconforming, and, therefore, we find that using 5047 for human occupation was not a use permitted by the 1986 Ordinance." Id.

"A party seeking to establish that it may lawfully use its property as a nonconforming use has the burden of proof.  Manhattan Inc. v. Shelby County, No. W2006-02017-COA-R3-CV, 2008 WL 639791, at *6 (Tenn. Ct. App. Mar. 11, 2008) (no perm. app. filed).  In addition,  grandfather clauses are construed strictly against the party seeking to use them.  Exxon Corp. v. Metro. Gov’t. of Nashville and Davidson County, 72 S.W.3d 638, 642 (Tenn. 2002)." Id.

"Because the uses that the 1961 Ordinance made nonconforming became illegal and should have ceased in 1981, only those uses actually permitted by the 1961 Ordinance lawfully existed when Millington enacted the 1986 Ordinance.  In order for Mr. Jacks’ use of 5045 and 5047 for human occupation to be lawfully nonconforming under the 1986 Ordinance, it must have been permitted by the 1961 Ordinance and disallowed by the 1986 Ordinance. " Id.