Oct 112012

Agricultural Zoning and the Right to Farm Act: Agritourism equals Agriculture in Tennessee

In a decision issued early this year by the Tennessee Court of Appeals, the court considered a dispute between an individual operating a farm as Maple Lane Farms and a neighboring property that claimed the farm-based activities were mostly commercial, not agricultural. According to the neighbor, the noise from the commercial activities interfered with her sleep and reading. The neighbor testified as follows:

“Q. How has the noise bothered you? What is it about the noise that has bothered you?

A. Well, the music was just very, very, very loud, you know, like I could almost feel the vibrations in my chest, you know, the whole house, and you couldn’t get away from it.

* * *

A. Yes, I could feel a thumping, thump, thump, thump, like it was thumping in my chest. It was extremely loud.”

Since 1985, Maple Lane Farms had been using their parcels to operate the farm as well as other things such as a pumpkin patch and corn maze in the fall. However, in 2000 they founded the Strawberry Jam Festival, a two day music festival held on their property, which lead to activities on the farm such as amplified musical performances, helicopter rides, and excessive ATV use. Shortly thereafter, the neighbors began to complain that the noise, bright lights, traffic and garbage was harming their health, comfort and property values. A neighbor sued the farm owner seeking to stop the activities on the property as a violation of zoning; specifically that these activities did not constitute a farming operation and thus the farm was not exempt from zoning requirements.

Under the Tennessee Right to Farm Act, Tenn. Code Ann. §§ 43-26-101 et seq., a farming operation is presumed neither to be a public or private nuisance. However, it is a rebuttable presumption that such farm operations are not nuisances unless a preponderance of evidence demonstrates that the operations do not conform to accepted agricultural practices. The Act also notes that a major point of it is to protect pre-existing farming activities from nuisance claims by newly arrived neighbors.

In a fairly broad approach to agricultural zoning and the Tennessee Right to Farm Act, the Court of Appeals held that the activities of Maple Lane Farms met the definition of “agritourism” and that these activities existed before the neighbor purchased her property. Shore v. Maple Lane Farms, LLC, No. E2011-00158-COA-R3-CV (Tenn. Ct. App. Apr. 11, 2012).

On August 16, 2012, the Tennessee Supreme Court granted permission for appeal. I would hazard a guess that the Supreme Court will take a more conservative approach here. Regardless, the opinion will prove to be an important one as this is an area of zoning and land use which needs some attention.

Aug 152012

Tennessee Supreme Court: Tennessee’s Nonconforming Use Statute Applies Only to Zoning Change or Zoning Restriction

In the recent case of SNPCO, Inc. v. City of Jefferson City, 363 S.W.3d 467 (Tenn. 2012), the Tennessee Supreme Court analyzed Tennessee’s nonconforming use statute in the context of an annexation. The Court addressed the question of whether a city’s ordinance banning the sale of fireworks within its city limits implicates Tenn. Code Ann. § 13-7-208(b) which permits pre-existing nonconforming businesses to continue to operate despite a zoning change.

In November of 2003, Jefferson City banned the sale of fireworks within its city limits. In 2008, the city annexed property adjacent to its borders which included the property on which SNPCO, a fireworks retailer, was located. After the city annexed the property, the retailer asked the city for permission to continue selling fireworks as a pre-existing nonconforming use. The city refused and SNPCO filed suit.

The trial court dismissed SNPCO’s complaint finding that the combination of the fireworks ordinance and the annexation of the property was not an “unlawful taking” and that the fireworks ordinance was not a zoning ordinance subject to grandfathering protection under Tenn. Code Ann. § 13-7-208(b). SNPCO appealed. The Tennessee Court of Appeals affirmed concluding that the test mandated by Cherokee Country Club, Inc. v. City of Knoxville, 152 S.W.3d 466 (Tenn. 2004) did not apply to determinations of whether an ordinance was a “zoning restriction” for the purpose of Tenn. Code Ann. § 13-7-208(b).

Tenn. Code Ann. § 13-7-208(b) is a grandfather clause that allows businesses that may be adversely affected by changes in zoning codes after the business has already opened to remain open under certain circumstances. The statute provides a vehicle for avoiding the legal problems that can arise whenever a newly enacted zoning ordinance or an amendment to a zoning ordinance might otherwise force a property owner to discontinue an otherwise permissible use of the property. Property owners seeking to invoke this statute have the burden of proving it applies to their business.

The Tennessee Supreme Court concluded the retailer could not take advantage of the grandfather clause in § 13-7-208(b). The pivotal question was whether the combined effect of the city’s fireworks ordinance and its decision to annex the land on which the retailer’s business was located was tantamount to a “zoning restriction” or “zoning change.” The Court relied on the “substantial effects” test it adopted in Cherokee Country Club, Inc.; a two-part test that examines both the terms and the effects of the challenged ordinance. It requires the court to first determine whether the challenged ordinance relates to the city’s “general plan of zoning.” If the court determines that it does, then the second step is to ascertain whether the ordinance results in a substantial interference with the use of land. The Court notes that the fireworks ordinance was not related to the city’s general plan of zoning and could not be characterized as a zoning ordinance or a zoning restriction. The fireworks ordinance did not refer to land, zones, buildings, lot lines, or any other terms and concepts customarily associated with comprehensive zoning plans. The ordinance simply reflected the exercise of the city’s traditional, general police power. Thus, the Court held that because the ordinance was not a zoning ordinance, it was neither a “zoning change” nor a “zoning restriction” for the purpose of Tenn. Code Ann. § 13-7-208(b).