Opinion
No. M2005-01517-COA-R3-CV.
March 17, 2006 Session.
Filed on January 24, 2007.
Appeal from the Chancery Court for Coffee County, No. 03-500, John W. Rollins, Judge.
Judgment of the Chancery Court Affirmed in Part, Vacated in Part, and Remanded.
Robert L. Huskey, Manchester, Tennessee, for the appellants, James M. Bramblett and Vincy Bramblett.
Robert F. Hazard, Tullahoma, Tennessee, for the appellee, Coffee County Planning Commission and Coffee County.
WILLIAM C. KOCH, JR., P.J., M.S., delivered the opinion of the court, in which WILLIAM B. CAIN and FRANK G. CLEMENT, JR., JJ., joined.
OPINION
This appeal involves a dispute arising out of the construction of duplexes on two tracts of real property in the Hillsboro community in Coffee County. The property owners filed suit in the Chancery Court for Coffee County seeking declaratory and injunctive relief to prevent the county from enforcing the restrictions in its newly enacted zoning resolution that prevented the construction of duplexes. The county counterclaimed for injunctive relief to require the property owners to comply with its zoning resolution. The trial court, sitting without a jury, determined that the property owners could maintain their existing duplex on one tract, but enjoined them from expanding this use except as provided for by Coffee County's zoning resolution. It also determined that the property owners could not build a duplex on the second tract. The property owners appealed. We have determined that the trial court correctly determined that the property owners could build a duplex on one tract but not the other tract. We have also determined that the trial court erred by prematurely enjoining the property owners' anticipated future use of the property where duplexes could be constructed because the property owners had not yet applied for a permit for this use and because the county had abandoned its request to enjoin the future use of this tract.
I.
James M. Bramblett lives in the Hillsboro community in Coffee County. Hillsboro lies outside the city limits of Tullahoma and Manchester, the two largest cities in Coffee County. Mr. Bramblett has lived in Hillsboro his entire life except for time spent in school and serving in the armed forces.
In 1992, Mr. Bramblett and his brother purchased a tract of real property in Hillsboro that included a two-story duplex and a separate block building measuring approximately twenty feet by twenty feet. Six years later, in 1998, they conveyed the property to Mr. Bramblett and his wife, Vincy Bramblett. At the time, Coffee County had no zoning laws restricting the use of property or limiting the size, number, or placement of structures on the property. Like the prior owners, the Brambletts leased out the duplex for residential housing.
The duplex was damaged by fire in 2001. After he ascertained the cost to repair the damaged duplex, Mr. Bramblett decided to demolish the structure and construct a new duplex. Accordingly, Mr. Bramblett tore down the old duplex as well as the separate block building and constructed a new duplex on the spot where the block building had stood. He also started constructing the footings for a second duplex where the first duplex had been, but he never pursued this project in earnest.
On April 16, 2002, while Mr. Bramblett was constructing the replacement duplex, the Coffee County Board of Commissioners adopted a comprehensive zoning resolution for Coffee County. The new zoning resolution placed the Brambletts' property in an "RS-1" zone which was a low-density residential district. Land use in RS-1 zones is limited to "residential development consisting of single-family dwellings and other structures that are accessory thereto within areas that are suburban in nature." Duplexes are not permitted in RS-1 zones.
Coffee County, Tenn., Resolution No. 2002-13 § 5-101.2(4) (Zoning Resolution).
Zoning Resolution § 5-102.7, table 5-102A.
On June 7, 2003, more than one year after the Coffee County Commission enacted its zoning resolution, the Brambletts purchased a second tract of real property in the Hillsboro community. As a condition to their agreement to purchase the property, the Brambletts required the prior owner to remove two run-down trailers on the property, only one of which had been used in the recent past as a residence. Following the closing, the Brambletts cleared the property of old tractors and tractor parts and tore down an old block building that had once been used as a tractor repair shop.
Mr. Bramblett was aware of the passage of the zoning resolution for several months before he and his wife purchased the second tract of property. In addition, Mr. Bramblett was personally aware of the application of the zoning resolution to the second tract because Kip L. Green, the county land use administrator, had reviewed the county zoning map with him which showed the classifications of all the property in Coffee County.
The Brambletts' second rental property was located in an area zoned "RE," an estates residential district. Land use in RE zones is limited to residential development consisting of "single[-family] detached dwellings and other structures as are accessory, thereto [within areas that are] predominantly characterized as low-density suburban in nature." Duplex residential housing is prohibited in RE zones. The minimum side yard setback requirement for structures in RE zones is twenty feet, and the minimum rear yard setback requirement is twenty-five feet.
Zoning Resolution § 5-101.2(3).
Zoning Resolution § 5-102.7, table 5-102A.
Zoning Resolution § 5-103.6(1), table 5-103B. Greater side and rear yard setback requirements apply if water service capable of providing "Minimum Fire Flow" as that term is defined in the zoning ordinance is not available. Zoning Resolution, Table 5-103B n. 3. It is unclear from the record on appeal whether such water service is available for the second property. The trial court did not directly address this issue in its orders but may take it up on remand if necessary.
Mr. Bramblett decided to build a duplex on the second tract in spite of the zoning restrictions. On June 9, 2003, he sent his elderly father to Mr. Green's office to complete an application for a certificate of zoning compliance (a building permit) to enable him to begin construction. Because Mr. Bramblett's father has poor eyesight, Mr. Green helped him complete the form. Consistent with the location of the property in an RE zone, Mr. Green marked the checkbox reflecting that the proposed use of the property was "residential." Mr. Bramblett's father signed the application form, paid the application fee, and then delivered the form to his son. For his part, Mr. Bramblett used the form to obtain approval from the Tennessee Department of Environment and Conservation (TDEC) to construct a septic tank.
See Zoning Resolution § 13-102.1(1) ("Except as provided for agricultural uses and activities . . ., it shall be unlawful to commence excavation for or construction of any building or other structure, including accessory structures, to commence moving, alteration, or repair of any structure, including expansion, to use a building or structure, or to commence filling of land within any flood prone area without a permit therefore, issued by the Zoning Administrator.").
The Land Use Administrator's application form is somewhat confusing because it does not track the classifications specified in the zoning ordinance itself. The zoning ordinance divides all land use activities in the County into six broad categories: (1) residential activities; (2) community facilities activities; (3) commercial activities; (4) manufacturing and extractive activities; (5) agricultural activities; and (6) accessory activities. Zoning Resolution §§ 2-103.1 to 2-103.6. The zoning ordinance further subdivides each category except for the last one into two or more "principal activity" classes or types. Zoning Resolution § 3-102(A)-(E). There are two classes, or types, of "Residential Activities": permanent and semi-transient. Zoning Resolution § 3-102(A). The following uses are considered to be permanent residential activities: (1) Dwelling — Single-Family; (2) Dwelling — Duplex; (3) Dwelling — Multi-Family; (4) Dwelling — Manufactured Home; and (5) Open Space Residential Development. Zoning Resolution § 3-103.1(1)(b).
The application form muddies the water considerably by mixing the zoning ordinance's broad categorical distinctions with principal activity classes and types. Thus, after the heading "[p]roposed use of property," the application form requires applicants to select among the following choices: (1) residential; (2) multi-family; (3) mobile home; (4) commercial; and (5) other. Thus, unlike the zoning ordinance itself, the application form draws an illusory distinction between uses that are "residential" versus uses that are "multi-family," and it fails to differentiate among single-family, and duplex "residential" uses.
Mr. Bramblett never returned to Mr. Green's office to obtain the certificate of zoning compliance. Instead, he simply started constructing the duplex on the second tract despite the fact that duplexes are not permitted in RE districts. To complicate matters even more, the location of the duplex did not comply with the minimum side and rear yard setback requirements for RE zoning districts.
There is no indication in the record that the Brambletts ever applied to the Coffee County Board of Zoning Appeals ("BZA") for a variance from the side and rear yard setback requirements. See Zoning Resolution § 13-103.2(2) ("Pursuant to Section 13-7-207, (3),Tennessee Code, the Board shall hear and act upon applications for variances to alleviate hardships created as a result of unique shape, topography or physical features of the zone lot.").
In late July 2003, Mr. Green's office received an anonymous complaint about the duplex that Mr. Bramblett was building on the second tract. On August 3, 2003, Mr. Green, accompanied by the TDEC official, visited the construction site. They discovered that the exterior framing had been completed and that carpenters were continuing to work on the structure. Mr. Green nailed a stop work order to the framing. He informed the workers at the site that the construction was illegal and instructed them to tell Mr. Bramblett to contact his office immediately.
Mr. Green heard nothing from Mr. Bramblett for two days. On August 5, 2003, Mr. Green and the TDEC official again visited the construction site. They discovered that a roof had been added to the structure and that the work was proceeding apace. Mr. Green issued a second stop work order and handed the order directly to Mr. Bramblett's on-site manager.
Mr. Bramblett finally telephoned Mr. Green at his office a day or so later. The conversation did not go well. Mr. Green asked Mr. Bramblett why he had started construction without a permit, why he was constructing a duplex in an area zoned for single-family dwellings, and why he had ignored two stop work orders. Mr. Bramblett did not answer Mr. Green. Instead, he asserted that the construction would continue until the structure was "secure." He also offered to meet with Mr. Green on August 20, 2003. Mr. Green agreed to meet with Mr. Bramblett but did not authorize him to continue constructing the duplex in the meantime.
Over the next two weeks, Mr. Bramblett did far more than simply "secure" the building. When Mr. Green visited the job site on August 20, 2003 in preparation for his meeting with Mr. Bramblett, he discovered that Mr. Bramblett had substantially completed the duplex and that a tenant had apparently moved into one of the units.
When Mr. Green later met with Mr. Bramblett, he personally handed Mr. Bramblett the third stop work order. He also informed Mr. Bramblett that the structure did not comply with the requirements of the zoning resolution and that the property could not be used as a duplex. When Mr. Bramblett asked what he needed to do to use the structure as a duplex, Mr. Green told him that the Coffee County Commission would have to rezone the property either to an RS-2 or RM-1 classification. Mr. Green also explained to Mr. Bramblett that he would be required to apply to the Coffee County Planning Commission and to obtain a survey and to conduct soil testing. Six days later, Mr. Bramblett appeared before the Planning Commission but did not have the papers required to have his request considered. The Planning Commission declined to consider Mr. Bramblett's request and invited him to return once he had obtained the necessary documents.
Following the Planning Commission's August 2003 meeting, Mr. Bramblett decided to seek rezoning for both tracts of real property. Therefore, he obtained the required surveys and soil tests and submitted an application to the Planning Commission.
Neither the Planning Commission nor the Land Use Administrator nor the BZA has the authority to rezone property or change the uses permitted in a particular zone. Zoning Resolution §§ 13-102.7(3)(a), 13-104.1(2), 13-104.4(3). The County Commission alone has the power to rezone property. Zoning Resolution § 13-106.1. However, in order to have property rezoned, an interested party must first file an application to amend the zoning resolution with either the Planning Commission or the Zoning Administrator. Zoning Resolution § 13-106.3(1)(a)-(b). In either case, the application must be reviewed by the Planning Commission before the County Commission will consider it. Zoning Resolution § 13-106.3(1). The Planning Commission is required to make specific findings of fact regarding several issues and to enter them into the official record. Zoning Resolution § 13-106.4(1)-(5). A public hearing is required on all proposals to amend the zoning resolution. Zoning Resolution § 13-106.4 (redundant section numbering in original).
The Planning Commission took up Mr. Bramblett's application to amend the zoning ordinance at its October 28, 2003 meeting. Mr. Bramblett spoke in favor of the application. The Planning Commission was plainly disturbed by his flagrant disregard for Mr. Green's three stop work orders and focused its attention on the second tract. The Planning Commission asked Mr. Bramblett why he had ignored the three stop work orders, why he had begun construction without the necessary permit, and why he had constructed a duplex structure on a property he knew was zoned for single-family detached residential housing.
Mr. Bramblett evidently did not provide satisfactory answers to these questions. At the conclusion of the meeting, the Planning Commission voted to deny the Brambletts' request for a recommendation to the Coffee County Commission that it rezone the two rental properties. The Planning Commission also asked the attorney for Coffee County to file suit against the Brambletts to require them to bring both tracts into compliance with the zoning resolution.
The record on appeal does not contain minutes, a transcript, or anything else in writing reflecting the proceedings before the Planning Commission at its August and October 2003 meetings.
At this point, the Brambletts decided to seek legal advice. On November 12, 2003, two weeks after the Planning Commission meeting, the Brambletts filed a declaratory judgment action against Coffee County and the Planning Commission in the Chancery Court for Coffee County. The purpose of this lawsuit, in the words of the complaint, was to prevent the County from "improperly restricting [the Brambletts'] utilization of certain properties that [they] own in Coffee County."
The complaint was originally filed by Mr. Bramblett alone. Ms. Bramblett was later added as a plaintiff by stipulation of the parties.
The Brambletts asserted in their complaint that they had a right to construct a duplex on the first tract because the property had been used for "multi-family purposes" before the Coffee County Commission adopted the zoning resolution. They also asserted that they had a right to construct a duplex on the second tract because of representations allegedly made by Mr. Green and because the property was being used for "multi-purposes" when the zoning resolution was adopted.
A use of property that exists prior to the enactment of a zoning ordinance which prohibits that use is commonly referred to in zoning parlance as a "nonconforming use." 1 KENNETH H. YOUNG, ANDERSON'S AMERICAN LAW OF ZONING § 6.01, at 481-82 (4th ed. 1996 Supp. 2006) ("AMERICAN LAW OF ZONING"); accord Zoning Resolution §§ 12-101, 12-102. A nonconforming use is considered to be "grandfathered," and thus exempt from restriction under the later enacted zoning ordinance, when the use is specifically exempted from the ordinance's application on the ground that the property was being used that way when the ordinance took effect. Town of Orono v. LaPointe, 698 A.2d 1059, 1062 (Me. 1997); BRYAN A. GARNER, A DICTIONARY OF MODERN LEGAL USAGE 390 (2nd ed. 1995).
Mr. Bramblett also wrote a letter to the county executive on December 18, 2003. He complained about the difficulties he had encountered in obtaining approval to rezone his property from Mr. Green and the Planning Commission. After informing the county executive of the pending litigation, Mr. Bramblett requested "to proceed with any remaining administrative options available to include a review by the County Commission as a whole." Mr. Bramblett also asked that his request be forwarded to the appropriate body or that he be advised of what further steps he needed to take to have the matter handled administratively.
The record on appeal does not contain the response, if any, that Mr. Bramblett received from the County Executive, nor does it indicate what further steps, if any, the Brambletts took to have their request for rezoning brought before the County Commission.
The County and the Planning Commission filed their answer to the Brambletts' complaint on December 29, 2003. They denied that a declaratory judgment was an appropriate remedy and raised as affirmative defenses the complaint's failure to state a claim upon which relief could be granted and the Brambletts' failure to exhaust their administrative remedies. The County did not, however, move for dismissal of the case. Instead, it filed a counterclaim for a permanent injunction requiring the Brambletts to bring both of their tracts into compliance with the zoning ordinance.
In April 2004, the Brambletts appeared before the BZA seeking review of the planning commission's decision not to recommend that the county commissioners amend the zoning ordinance to rezone the two tracts. The BZA informed the Brambletts that it had no authority to review the Planning Commission's recommendations for or against amendments to the zoning ordinance. The BZA also voted to uphold the decisions of Mr. Green to the extent they were being challenged by the Brambletts. The Brambletts did not seek court review of the BZA's decision.
The zoning ordinance created a BZA for Coffee County. Zoning Resolution § 13-103.1. However, at the time the Brambletts filed their lawsuit, the County Commission had not yet filled the seats on the BZA. The County Commission subsequently appointed the members of the BZA at a special meeting on February 26, 2004 in response to the Brambletts' request that the BZA review the Planning Commission's decision regarding a recommendation for rezoning.
See Zoning Resolution § 13-103.2(1)-(5) (describing the BZA's authority, which includes review of administrative appeals from decisions of the Zoning Administrator and any other administrative official in carrying out enforcement of the zoning resolution and consideration of applications for variances and conditional use permits but not review of decisions by the Planning Commission regarding recommendations to the County Commission concerning applications for rezoning).
Review of a decision by a county board of zoning appeals is by way of a petition for common law writ of certiorari. McCallen v. City of Memphis, 786 S.W.2d 633, 639 (Tenn. 1990); Fallin v. Knox County Bd. of Comm'rs, 656 S.W.2d 338, 342 (Tenn. 1983); Lewis v. Bedford County Bd. of Zoning Appeals, 174 S.W.3d 241, 245 (Tenn.Ct.App. 2004); see Tenn. Code Ann. §§ 27-8-101 to 27-9-114 (2000 Supp. 2006); see also Zoning Resolution § 13-103.8(5) ("Any . . . aggrieved party may appeal any decision of the Board [of Zoning Appeals] to a court of competent jurisdiction as provided by State law.").
The trial took place on December 17, 2004. Mr. Bramblett and Mr. Green both testified, as did Mr. Bramblett's father, the previous owner of the second tract, two long-term residents of the Hillsboro community, and the TDEC official who had accompanied Mr. Green on his several trips to the second tract in August 2003. At the conclusion of the Brambletts' evidence, the County abandoned its claim that the Brambletts' current use of the first tract for a duplex was not grandfathered. However, they maintained that any expansion of the current use, such as the construction of a second duplex on the property at some point in the future, would have to satisfy the requirements of the zoning resolution.
The trial court filed its final order on January 18, 2005. It concluded that the Brambletts could construct a duplex on the first tract because there was a duplex on the property when the zoning resolution was enacted. However, the court enjoined the Brambletts from "expan[ding] . . . th[e] non-conforming use [of the first tract], except as provided by the zoning resolution of Coffee County." The trial court also determined that the Brambletts could not construct a duplex on the second tract and ordered them to bring the use of the second tract and the structure on it into compliance with the zoning ordinance immediately even if it required the "demolition[,] . . . conversion[, or] . . . relocation" of the new building. The trial court denied the Brambletts' motion to alter or amend the judgment in a June 20, 2005 order, and the Brambletts appealed.
The Brambletts based their motion to alter or amend the judgment on an affidavit from the longtime County Tax Assessor stating that he was personally aware that there were two run-down trailers and a "garage building" on the second property when the Brambletts purchased it in June 2003. The affidavit contained no information regarding the actual use of the structures.
II. THE ISSUES PRESENTED FOR REVIEW
Procedurally, the case got off to an awkward start. After the Planning Commission voted at its October 2003 meeting to ask the county attorney to seek injunctive relief against the Brambletts, the Brambletts rushed to court to file a preemptive lawsuit against the County and the Planning Commission. Thus, the Brambletts filed suit before the county attorney had even a realistic opportunity to investigate whether there was a factual and legal basis for a lawsuit against the Brambletts with respect to either or both tracts.
See Tenn. Sup. Ct. R. 8, RPC 3.1 ("A lawyer shall not bring or defend or continue with the prosecution or defense of a proceeding . . . unless after reasonable inquiry the lawyer has a basis for doing so that is not frivolous. . . ."); Tenn. R. Civ. P. 11.02(2)-(3) ("By presenting to the court . . . a pleading, . . . an attorney . . . is certifying that to the best of [his or her] knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, . . . the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law [and] the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. . . .") (internal divisions omitted).
The County could have responded to the Brambletts by filing a Tenn. R. Civ. P. 12.02(6) motion to dismiss the complaint. It appears from the record before us that the motion would have been well-taken on any one of several grounds relating to the timing and manner in which the Brambletts filed their lawsuit. However, the County decided instead to file an answer denying that the case was appropriate for resolution by declaratory judgment and by pleading affirmative defenses based on the complaint's failure to state a claim upon which relief could be granted and on the Brambletts' failure to exhaust their administrative remedies.
Moore v. Metro. Bd. of Zoning Appeals, 205 S.W.3d 429, 435 (Tenn.Ct.App. 2006); Charter Lakeside Behavioral Health Sys. v. Tenn. Health Facilities Comm'n, No. M1998-00985-COA-R3-CV, 2001 WL 72342, at *4 (Tenn.Ct.App. Jan. 30, 2001) (No Tenn. R. App. P. 11 application filed); Lafferty v. City of Winchester, 46 S.W.3d 752, 758 (Tenn.Ct.App. 2000); see also Martin v. Washmaster Auto Ctr., Inc., No. 01A01-9305-CV-00224, 1993 WL 241315, at *1 (Tenn.Ct.App. July 2, 1993) (No Tenn. R. App. P. 11 application filed).
In addition to its answer, the County filed a counterclaim seeking a permanent injunction requiring the Brambletts to bring both tracts into compliance with the zoning resolution. Tenn. Code Ann. §§ 13-7-111,-208(a)(2) (1999) specifically authorize local governments to seek injunctive relief to secure compliance with local zoning requirements. Thus, while the Brambletts' original complaint might well have been subject to dismissal on a number of grounds, the County's counterclaim had the practical and legal effect of rendering the case justiciable.
As a result of the unusual procedural progression of this case, the natural order of the lawsuit, with the County as the plaintiff and the Brambletts as the defendants, was reversed. Nevertheless, it is the County's claim for injunctive relief, along with the Brambletts' affirmative defense that the nonconforming use of their property was grandfathered, that forms the core of this lawsuit. Accordingly, issues relating to the Planning Commission's refusal to recommend that the County Commission rezone the two properties, the BZA's determination that it lacked the authority to review the Planning Commission's actions, and Mr. Green's issuance of the three stop work orders are not properly before this court.
At trial, both sides stated explicitly and repeatedly that the sole issue to be decided by the trial court was whether the evidence showed the Brambletts' two rental properties were grandfathered based on their existing uses at the time of the enactment of the zoning ordinance in 2002.
The County conceded in the trial court that the Brambletts could construct a duplex on the first tract and insisted that the possible construction of a second duplex on the first tract was not properly before the court because the Brambletts had not yet applied for a building permit for the second duplex. The trial court agreed with the County's first point but not the second. Instead, the court enjoined the Brambletts, on penalty of contempt, from expanding their use of the first tract without first obtaining the required administrative approvals. On appeal, the Brambletts contend that the trial court erred in taking this further step and restricting their potential future use of the first property.
There are, accordingly, two issues properly before the court. The first issue is whether the trial court erred by concluding that the Brambletts failed to prove that the newly constructed duplex on the second tract was grandfathered based on the use of the property when the zoning resolution was enacted. The second issue is whether the trial court erred by enjoining the Brambletts from expanding their current nonconforming use of the first tract except in accordance with the zoning resolution ordinance.
III. THE STANDARDS OF REVIEW
The standards this court uses to review the results of bench trials are well settled. With regard to a trial court's findings of fact, we review the record de novo and will presume that the findings of fact are correct "unless the preponderance of the evidence is otherwise." Tenn. R. App. P. 13(d). We give great weight to a trial court's factual findings that rest on determinations of credibility. In re Estate of Walton, 950 S.W.2d 956, 959 (Tenn. 1997); B G Constr., Inc. v. Polk, 37 S.W.3d 462, 465 (Tenn.Ct.App. 2000). If, however, the trial court has not made a specific finding of fact on a particular matter, we will review the record to determine where the preponderance of the evidence lies without employing a presumption of correctness. Hardcastle v. Harris, 170 S.W.3d 67, 78-79 (Tenn.Ct.App. 2004).
Reviewing findings of fact under Tenn. R. App. P. 13(d) requires an appellate court to weigh the evidence to determine in which party's favor the weight of the aggregated evidence falls. Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d 581, 596 (Tenn.Ct.App. 1999). There is a "reasonable probability" that a proposition is true when there is more evidence in its favor than there is against it. Chapman v. McAdams, 69 Tenn. 500, 506 (1878); see also 2 MCCORMICK ON EVIDENCE § 339, at 484 (Kenneth S. Broun ed., 6th ed. 2006) (defining "proof by a preponderance" as "proof which leads the [finder of fact] to find that the existence of the contested fact is more probable than its nonexistence"). The prevailing party is the one in whose favor the evidentiary scale tips, no matter how slightly. Parks Props. v. Maury County, 70 S.W.3d 735, 741 (Tenn.Ct.App. 2001).
Tenn. R. App. P. 13(d)'s presumption of correctness requires appellate courts to defer to a trial court's findings of fact. Nashville Ford Tractor, Inc. v. Great Am. Ins. Co., 194 S.W.3d 415, 425 (Tenn.Ct.App. 2005). Because of the presumption, an appellate court is bound to leave a trial court's finding of fact undisturbed unless it determines that the aggregate weight of the evidence demonstrates that a finding of fact other than the one found by the trial court is more probably true. Parks Props. v. Maury County, 70 S.W.3d at 742. For the evidence to preponderate against a trial court's finding of fact, it must support another finding of fact with greater convincing effect. Realty Shop, Inc. v. RR Westminster Holding, Inc., 7 S.W.3d at 596.
The presumption of correctness afforded by Tenn. R. App. P. 13(d) applies only to findings of fact, not conclusions of law. Accordingly, we review a trial court's resolution of legal issues without employing a presumption of correctness and reach our own independent conclusions regarding these matters. Johnson v. Johnson, 37 S.W.3d 892, 894 (Tenn. 2001); Nutt v. Champion Int'l Corp., 980 S.W.2d 365, 367 (Tenn. 1998); Knox County Educ. Ass'n v. Knox County Bd. of Educ., 60 S.W.3d 65, 71 (Tenn.Ct.App. 2001); Placencia v. Placencia, 48 S.W.3d 732, 734 (Tenn.Ct.App. 2000).
IV. THE DUPLEX ON THE SECOND TRACT
The Brambletts first take issue with the trial court's conclusion that they could not construct a new duplex on the second tract. They insist that this tract was being used for multi-family residential housing when the zoning resolution was passed and, therefore, that Tenn. Code Ann. § 13-7-208 required the county to allow them to construct a duplex on the second tract. The County responds that the Brambletts failed to present evidence supporting their claim. While our reasoning differs from the trial court's, we concur with the trial court's conclusion the Brambletts cannot construct or maintain a duplex on the second tract.
The Court of Appeals may affirm a judgment on different grounds than those relied on by the trial court as long as the trial court reached the correct result. Continental Cas. Co. v. Smith, 720 S.W.2d 48, 50 (Tenn. 1986); In re Estate of Boote, 198 S.W.3d 699, 718 n. 28 (Tenn.Ct.App. 2005); City of Brentwood v. Metro. Bd. of Zoning Appeals, 149 S.W.3d 49, 60 n. 18 (Tenn.Ct.App. 2004).
A.
Zoning is a fact of modern life. The days of Uncle Dave Macon, when most Tennesseans lived on more or less remote farms or in rural communities, are gone. Towns, urban centers, and subdivisions have largely replaced the rural environment of the past. Increasingly, local governments of all stripes have undertaken to harness local growth and to encourage orderly development through the use of planning and zoning measures. LEE S. GREENE, ET AL., GOVERNMENT IN TENNESSEE 351 (4th ed. 1982) ("GOVERNMENT IN TENNESSEE"). As the pressure to convert farmland into subdivisions, apartment complexes, condominiums, and shopping centers has increased, zoning ordinances have become major tools to implement land-use planning at the local level. GOVERNMENT IN TENNESSEE, at 357-63.
See Tenn. Code Ann. §§ 6-58-101 to-116 (2005); Michael J. Stewart, Comment, Growth and Its Implications: An Evaluation of Tennessee's Growth Management Plan, 67 TENN. L. REV. 983 (2000).
Local governments lack the inherent power to control the use of private property within their boundaries. Lafferty v. City of Winchester, 46 S.W.3d at 757. This power belongs to the State of Tennessee. However, the Tennessee General Assembly may delegate the power to local governments, Henry v. White, 194 Tenn. 192, 196, 250 S.W.2d 70, 71 (1952); Anderson County v. Remote Landfill Servs., Inc., 833 S.W.2d 903, 909 (Tenn.Ct.App. 1991), and, in fact, began doing so in 1935, KLN Assocs. v. Metro. Dev. Hous. Agency, 797 S.W.2d 898, 902 n. 3 (Tenn.Ct.App. 1990). Local governments' statutory power to employ zoning measures to control the use of land within their boundaries is now firmly established. Draper v. Haynes, 567 S.W.2d 462, 465 (Tenn. 1978).
Zoning ordinances are the most prevalent type of local land use control. 1 AMERICAN LAW OF ZONING § 1.14, at 21. In the most general terms, zoning involves the territorial division of land into districts according to the character of the land and buildings, their suitability for particular purposes, and the uniformity of these uses. Family Golf of Nashville, Inc. v. Metro. Gov't of Nashville Davidson County, 964 S.W.2d 254, 258 (Tenn.Ct.App. 1997). Zoning regulations focus primarily on the use of the property and the architectural and structural designs of the buildings. In re Sundance Mountain Ranches, Inc., 754 P.2d 1211, 1213 (N.M.Ct.App. 1988); Kaufman v. Planning Zoning Comm'n, 298 S.E.2d 148, 153 (W.Va. 1982); 1 EMMETT C. YOKLEY, ZONING LAW AND PRACTICE § 1-2, at pp. 1-2 to 1-3 (4th ed., rev. 2000) ("ZONING LAW AND PRACTICE").
Rarely, if ever, have local governments enacted zoning ordinances on a completely clean slate. Property is usually already in use when it is first zoned, and so it is inevitable that ideal zoning theory will clash with the existing use of particular pieces of property. In order to avoid the constitutional problems that might accrue if local governments attempted to force private property owners to discontinue previously permitted and non-harmful uses of their property, Tenn. Code Ann. § 13-7-208 (Supp. 2006) requires municipal and county governments to permit certain types of pre-existing uses to continue even if they are inconsistent with the newly adopted zoning classifications of the surrounding property. Outdoor West of Tenn., Inc. v. City of Johnson City, 39 S.W.3d 131, 135 (Tenn.Ct.App. 2000).
Tenn. Code Ann. § 13-7-208 appears in the part of the Tennessee Code governing municipal zoning ordinances, not the part governing county zoning ordinances. Compare Tenn. Code Ann. §§ 13-7-101 to -118 (1999 Supp. 2005) (county zoning), with Tenn. Code Ann. §§ 13-7-201 to -211 (1999 Supp. 2005) (municipal zoning), and Tenn. Code Ann. §§ 13-7-301 to -306 (1999) (municipal zoning outside municipal boundaries), and Tenn. Code Ann. §§ 13-7-401 to -410 (1999 Supp. 2005) (historic zoning). Moreover, Tenn. Code Ann. § 13-7-208's counterpart in the chapters that govern county zoning ordinances lacks the grandfathering language included in Tenn. Code Ann. § 13-7-208. Compare Tenn. Code Ann. § 13-7-111, with Tenn. Code Ann. § 13-7-208. Nevertheless, this court has previously construed Tenn. Code Ann. § 13-7-208 as restricting the zoning authority of both county and municipal governments. Chadwell v. Knox County, 980 S.W.2d 378, 382 (Tenn.Ct.App. 1998); see also Nat'l Auto/Truck Stops, Inc. v. Williamson County, No. M2000-02456-COA-R3-CV, 2001 WL 434860, *2-4 (Tenn.Ct.App. Apr. 30, 2001), perm. app. denied (Tenn. Sept. 24, 2001). The County has not asked us to revisit these decisions here, nor is it necessary for us to do so in order to resolve this appeal.
Tenn. Code Ann. § 13-7-208(b)(1) provides in pertinent part as follows:
In the event that a zoning change occurs in any land area where such land area was not previously covered by any zoning restrictions . . ., and such zoning restrictions differ from zoning restrictions imposed after the zoning change, then any industrial, commercial or business establishment in operation, permitted to operate under zoning regulations or exceptions thereto prior to the zoning change[,] shall be allowed to continue in operation and be permitted; provided, that no change in the use of the land is undertaken by such industry or business.
A property owner whose use of his or her property qualifies as a nonconforming use protected by Tenn. Code Ann. § 13-7-208 may even expand the use or rebuild or construct new structures in some cases. However, the new or additional structures must involve an actual continuance and expansion of the activities that were permitted and being conducted before, and there must be a reasonable amount of space for the expansion so as to avoid nuisances to adjacent landowners. Tenn. Code Ann. § 13-7-208(b)(1), (c); 421 Corp. v. Metro. Gov't of Nashville Davidson County, 36 S.W.3d 469, 476 (Tenn.Ct.App. 2000).
Any new or rebuilt structure must, however, comply with the restrictions of the later enacted zoning law regarding setbacks, height, bulk, and other requirements relating to the physical location of structures on the site. Tenn. Code Ann. § 13-7-208(i). Critically, the statute does not confer any grandfathering protection where an established nonconforming use is changed to a different nonconforming use. Lafferty v. City of Winchester, 46 S.W.3d at 758; 1 AMERICAN LAW OF ZONING § 6.36, at 599-600 ("[T]he basic notion of a nonconforming use precludes a change to a use which is not a continuation of the one that existed on the effective date of the ordinance."); cf. Zoning Resolution § 12-102.4 ("Any nonconforming use that existed lawfully at the time of enactment of this resolution . . . may be allowed to continue in operation and be permitted provided no change in use . . . is undertaken.").
Cf. Zoning Resolution § 12-102.7(4) ("[W]hen any building or other structure . . . is damaged or destroyed to the extent of fifty (50) percent or more of the assessed valuation . . ., such building or other structure may be reconstructed provided that no such action shall increase the extent of any infringement upon any open space required by this resolution and that the reconstructed buildings, structures and other site improvements, shall comply as fully as possible with all other provisions of this resolution.").
B.
The Brambletts' reliance on Tenn. Code Ann. § 13-7-208, which the trial court apparently accepted, is misplaced. By its plain language, the statute protects only "industrial, commercial or business establishment[s]." Tenn. Code Ann. § 13-7-208(b)(1); Custom Land Dev., Inc. v. Town of Coopertown, 168 S.W.3d 764, 775 (Tenn.Ct.App. 2004) (noting that purpose of statute was "to protect ongoing business operations"). In zoning parlance, use of real property for human habitation is generally classified as "residential," regardless of whether someone profits from it. Zoning laws typically employ terms such as "commercial," "industrial," and "business" in contradistinction to the term "residential." 6 ZONING LAW AND PRACTICE § 35-2, at pp. 35-3 to 35-7; § 38-1, at pp. 38-1 to 38-2, § 39-1, at pp. 39-1 to 39-5, § 44-1, at p. 44-1. 3 AMERICAN LAW OF ZONING § 18.15, at 304. Tennessee's zoning statutes are no exception.
See, e.g., 8 EUGENE MCQUILLIN, THE LAW OF MUNICIPAL CORPORATIONS § 25.96, at 328-29 (3rd ed., rev. vol. 2000) ("MUNICIPAL CORPORATIONS") ("[A] fundamental purpose of zoning legislation may be to create and maintain residential districts from which businesses and trades are excluded. Indeed, zoning ordinances enacted under the police power may exclude commercial and industrial uses, including billboards, from residential zones whether they are inherently inoffensive or not.") (emphasis added).
See Tenn. Code Ann. §§ 13-7-101(a)(1) (distinguishing among uses of structures and buildings for "trade, industry, residence, recreation or other purposes"), 13-7-102 (same), 13-7-201(a)(1) (distinguishing among uses of structures, buildings, and land for "trade, industry, residence, recreation, public activities and other purposes"), 13-7-202 (same); cf. Zoning Resolution §§ 2-103.1 to 2-103.6 (dividing all land use in Coffee County into six broad categories with separate categories for "[r]esidential" versus "[c]ommercial" uses).
Although the Brambletts are not themselves living on the second tract, their use of it is indisputably residential in character. The Brambletts are not running a factory there, nor are they operating a grocery store or shipping facility. Instead, they are leasing out the two sides of the duplex to individuals and families for human habitation. The record on appeal confirms that much time has elapsed since this tract was used as the location of an "industrial, commercial or business establishment" within the meaning of the statute, except possibly when there was a small tractor repair shop on the property. Tenn. Code Ann. § 13-7-208(b)(1). Accordingly, Tenn. Code Ann. § 13-7-208 confers no grandfathering protection on the Brambletts with respect to the second tract.
The proper starting point for analyzing the Brambletts' grandfather claim is thus the zoning resolution itself. Like many local zoning schemes, Coffee County's zoning resolution contains provisions relating to nonconforming uses and noncomplying structures. Zoning Resolution §§ 12-101 to 12-104; see, e.g., Sanders v. Angie Props., Inc., 834 S.W.2d 332, 333 (Tenn.Ct.App. 1992); Rives v. City of Clarksville, 618 S.W.2d 502, 504-05 (Tenn.Ct.App. 1981). The zoning resolution provides that a nonconforming use that existed legally at the time of the enactment of the ordinance may continue and is a permitted use as long as there is no change in the use of the property. Zoning Resolution § 12-102.4. In other words, a change in use destroys the grandfathering protection offered by the zoning resolution.
Article XII of the zoning ordinance is titled "Provisions Governing Nonconforming Uses and Noncomplying Buildings or Other Structures."
A change in use is "a change to another use either under the same activity type or [under] any other activity type or major class of activity." Zoning Resolution § 12-102.5(1). A mere change in ownership does not, in and of itself, constitute a change in the use of the property, nor does a change in the identity of the persons occupying the property. Zoning Resolution § 12-102.5(1). However, where a property owner ceases using his or her property in the way it was being used prior to the enactment of the zoning ordinance, and instead starts using it for one of the other uses separately defined in the zoning ordinance, he or she has forfeited the protection of the ordinance's grandfathering provisions. 1 AMERICAN LAW OF ZONING § 6.36, at 598-602, § 6.67, at p. 687-90; see also Ka-Hur Enters., Inc. v. Zoning Bd. of Appeals of Provincetown, 676 N.E.2d 838, 841 (Mass. 1997).
The zoning resolution lists "Single-Family," "Duplex," and "Multi-Family" dwellings as separate uses of real property and applies different zoning restrictions to each. Zoning Resolution §§ 3-103.1(1)(b). Moreover, the resolution defines these three uses in a mutually exclusive manner. According to the resolution, a single-family dwelling is "[a] building containing not more than one (1) dwelling unit located upon one (1) zone lot." Zoning Resolution § 2-103.1(1) (emphasis added). By contrast, a duplex dwelling is defined as "[a] building containing not more than two dwelling units located on one (1) zone lot," and a multi-family dwelling is defined as "[a] building containing three (3) or more dwelling units . . . includ[ing] cooperative apartments, condominiums, and the like." Zoning Resolution § 2-103.1(1) (emphasis added).
Thus, under the zoning resolution, a duplex is not a subset of multi-family residential housing. To be sure, they are grouped together under the same activity type — "Permanent Residential Activities" — but they are not classified or treated as interchangeable or overlapping uses. Zoning Resolution § 2-103.1(1). Under the zoning ordinance, "a change to another use . . . under the same activity type" vitiates the protection afforded by the ordinance's grandfathering provisions. Zoning Resolution §§ 12-102.4, 12-102.5(1). Since the Brambletts never claimed, much less proved, that the second tract was used for duplex residential housing at the time of the enactment of the zoning ordinance, their grandfathering defense to the County's suit for injunctive relief must fail.
Even if it were enough for the Brambletts to prove that the second tract was previously used for multi-family residential housing, their grandfathering defense would fail. The evidence presented at trial showed that only one person had lived on the second tract in recent years. Stacy Tuck, the former property owner's son, testified that he lived in one of the two trailers on the property at the time it was sold to the Brambletts in June 2003. He claimed that a cousin had lived in the other trailer for approximately three months at some point but could not remember when that was. Mr. Tuck admitted that his cousin had been dead for approximately two years and that no one else had lived with him on the property before or since. Mr. Tuck also acknowledged that the second trailer was used for storage. The remaining evidence in the record is more or less consistent with this version of events.
Under this narrative — the one proffered by the Brambletts — the second tract is not grandfathered for multi-family residential use. First, it is unclear from the testimony whether Mr. Tuck's cousin was living on the property at the time of the enactment of the zoning ordinance. The Brambletts, as the parties seeking the protection of the grandfathering provisions, bore the burden of proof at trial on this issue. Coe v. City of Sevierville, 21 S.W.3d 237, 243 (Tenn.Ct.App. 2000); Lamar Adver. of Tenn., Inc. v. City of Knoxville, 905 S.W.2d at 176; 8A MUNICIPAL CORPORATIONS § 25.188.50, at 68-69. Mr. Tuck's vague testimony is insufficient to carry this burden.
Second, the use of the other trailer as a temporary residence by Mr. Tuck's cousin for a single three-month period does not transform the principal use of the second property into multi-family residential housing. Zoning Resolution §§ 3-101 to 3-101.3 (specifying the process for classifying uses as principal or accessory). Even if it did, and assuming the use existed on April 16, 2002 when the County adopted the zoning resolution, the use was discontinued for a period of more than a year, which terminated any grandfathering protection the use might have had under the zoning ordinance. Zoning Resolution § 12-102.8 ("When a nonconforming use . . . is discontinued for a period of one (1) year, then the land or building or other structure shall thereafter be used only for a conforming use. Intent to resume active operations shall not affect the foregoing provision.").
The Brambletts' assertion of a grandfathered right to construct a noncomplying duplex on the second tract suffers the same fate as their claim of grandfathering protection for their nonconforming use of the property. The zoning resolution grandfathers existing noncomplying structures as long as they remain standing. Zoning Resolution § 12-103.2. Moreover, it conditionally allows repairs, incidental alterations, and even structural alterations to buildings in existence at the time of the enactment of the zoning ordinance. Zoning Resolution § 12-103.3. If a noncomplying structure is damaged or destroyed, the property owner may rebuild it, provided that the restoration does not result in any new or increased noncompliance. Zoning Resolution § 12-103.5.
The primary difficulty with the Brambletts' grandfathering claim as it relates to the structure on the second tract is that they did not rebuild or repair a pre-existing structure. Instead, when they purchased the property, they required the prior owner to remove the two run-down trailers, and they then razed the separate block building to the ground and cleared the property of old tractors and parts. The Brambletts did not rebuild or "restore" any of this. Zoning Resolution § 12-103.5. Instead, they embarked on something entirely new: the construction of a duplex where none had ever existed before.
In a section titled "Damage or Destruction of Noncomplying Buildings and Other Structures," the zoning ordinance provides as follows:
In all districts, when any noncomplying building or other structure is damaged or destroyed[,] such building or other structures may be restored provided that such restoration shall not cause a new noncompliance nor increase the degree of noncompliance existing prior to such damage or destruction.
Zoning Resolution § 12-103.5; cf. Tenn. Code Ann. § 13-7-208(i) (requiring industrial, commercial, and business establishments rebuilt under the aegis of the grandfathering statute to "conform to the provisions of the existing zoning regulations as to setbacks, height, bulk, or requirements as to the physical location of a structure upon the site").
Moreover, as we explained above, the Brambletts' use of the second tract for duplex residential housing is a change in use. Thus, they cannot take advantage of the zoning resolution's provisions permitting reconstruction, or even new construction, involving "an actual continuance" of a pre-existing nonconforming use. Zoning Resolution §§ 12-102.6, 12-102.7. Accordingly, the trial court did not err by ordering the Brambletts to bring the second tract property into compliance with the zoning resolution immediately even if this means substantially modifying or even removing the unpermitted structure they built in the face of three valid stop work orders.
V. THE BRAMBLETTS' ANTICIPATED IMPROVEMENTS ON THE FIRST TRACT
With respect to the first tract, the Brambletts claim that the trial court's injunction swept too broadly by enjoining them from "[e]xpansion of this [present] non-conforming use, except as provided by the zoning resolution of Coffee County." As the Brambletts point out, the County conceded at trial that the evidence proved that use of the first property for duplex residential housing was grandfathered. Moreover, while the Brambletts' possible plans to build a second duplex on the first property at some point in the future was mentioned at trial, it was undisputed that they had not yet applied for a permit to do so. The County stated clearly at trial that it was not seeking judicial relief regarding the first property.
See, e.g., Transcript of Proceedings Dec. 17, 2004, at 125:3-5 ("[W]e [i.e., the County] have acknowledged, based on the proof that's been presented, that the [first property] is not an issue.").
Observe the following colloquy between the trial court and counsel for the County:
THE COURT: I will tell you right now, I think [the first property] is grandfathered.
MR. HAZARD: We [i.e., the County] do too. We think the existing unit is there. Now expansions are another issue, but that's not what we're arguing about.
Transcript of Proceedings Dec. 17, 2004, at 176:13-18 (emphasis added).
As noted above, this appeal arises out of the County's counter-claim for injunctive relief against the Brambletts, not a petition for common-law writ of certiorari filed by the Brambletts to challenge the actions or inactions of local zoning officials. "In recognition of the policy that favors permitting the community decision-makers closest to the events to make the decision, the courts refrain from substituting their judgments for the broad discretionary power of the local governmental body" in matters relating to zoning. Lafferty v. City of Winchester, 46 S.W.3d at 758 (citing McCallen v. City of Memphis, 786 S.W.2d at 641-42; Whittemore v. Brentwood Planning Comm'n, 835 S.W.2d 11, 15 (Tenn.Ct.App. 1992)). The same principle counsels against enjoining possible future uses of land before property owners have even applied for a permit and local zoning officials have had a chance to weigh in on the matter. Accordingly, the trial court erred in prohibiting the Brambletts, on pain of contempt, from expanding their nonconforming use of the first property except as provided by the zoning ordinance.
Our holding does not mean, of course, that the Brambletts are now free to construct a second duplex on the first property without first obtaining permission from the local zoning authorities to do so. To the contrary, expansion of the present nonconforming use of the first property, except through the procedures outlined in the zoning ordinance, remains illegal. However, were the Brambletts to break the law and expand their nonconforming use of the first property without obtaining the proper authorizations, they would not immediately be subject to punishment for contempt of court unless and until the County obtained a new injunction restraining their use of the first property.
VI.
We affirm the trial court's judgment regarding the second property, vacate its judgment barring the expansion of the nonconforming use of the first property, and remand the case for further proceedings consistent with this opinion. We tax the costs of this appeal in equal proportions to James M. Bramblett, Vincy Bramblett, and their surety and the Coffee County Planning Commission and Coffee County for which execution, if necessary, may issue.