ORDINANCE NO. BL2012-92

ORDINANCE NO. BL2012-92

An Ordinance amending Chapter 17.40 of the Metropolitan Code relative to the period of inactivity for nonconforming uses and for nonconforming structures damaged by a disaster, all of which is more particularly described herein (Proposal No. 2012Z-001TX-001).

WHEREAS, the Metropolitan Council recognizes that Tennessee Code Annotated § 13-7-208 provides certain protections for nonconforming uses; and

WHEREAS, those protections include allowing nonconforming commercial and industrial properties to cease to operate for up to 30 continuous months before being required to comply with new zoning laws, and tolls the 30-month provision while the use of the property is the subject matter of litigation; and

WHEREAS, the Metropolitan Zoning Code currently does not reflect this 30 month protection nor the tolling during litigation; and

WHEREAS, the historic rain event of May 1 and 2 of 2010 caused widespread flooding and land movement displacing families and destroying homes and businesses; and

WHEREAS, the Metropolitan Zoning Code does not include any protections for nonconforming residences and businesses that were damaged during the flood and remain uninhabitable; and

WHEREAS, the Metropolitan Council desires to amend the Zoning Code to include these state law protections for commercial/industrial properties, as well as add protections for nonconforming properties that were flooded.

NOW, THEREFORE, BE IT ENACTED BY THE COUNCIL OF THE METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY:

Section 1. That Title 17 of the Code of The Metropolitan Government of Nashville and Davidson County, Zoning Regulations, is hereby amended by amending Section 17.40.650 by deleting subsection B. and replacing it with the following subsection B:

“B. Inactivity of a Nonconforming Use. When a nonconforming use has been inactive for a period of thirty continuous months, the land and its associated improvements shall thereafter be used only in accordance with the provisions of this title. An intent to resume activity shall not qualify the property for a continuation of the nonconforming use. For the purposes of this subsection, the thirty month period of continuous ceased operation shall be tolled by:
1. The period in which an establishment is party to any action in a court of competent jurisdiction regarding the use of the property until such time that a final settlement, order, decree, or judgment has been rendered.
2. The period in which a property is significantly damaged by a disaster or event for which President of the United States and/or Governor of the State of Tennessee has determined that such disaster or event caused damage of sufficient severity and magnitude within the area of the Metropolitan Government to warrant major disaster assistance from the federal and/or state government.”

“5. Nonconforming use structures damaged or destroyed by flood. Notwithstanding the foregoing, a structure containing an industrial, commercial, business, or residential nonconforming use that was damaged by a disaster or event for which the President of the United States and/or Governor of the State of Tennessee has determined that such disaster or event caused damage of sufficient severity and magnitude within the area of the Metropolitan Government to warrant major disaster assistance from the federal and/or state government may be restored within sixty months regardless of percentage of damage or destruction.”

Section 3. That this Ordinance shall take effect five (5) days from and after its passage and such change be published in a newspaper of general circulation, the welfare of The Metropolitan Government of Nashville and Davidson County requiring it.

Sponsored by: Duane Dominy, Robert Duvall, Tony Tenpenny, Charlie Tygard

Amendment No. 1
To
Ordinance No. BL2012-92

Madam President:

I move to amend Ordinance No. BL2012-92 as follows:

I. By deleting Section 1 in its entirety and substituting with the following new Section 1:

“B. Inactivity of a Nonconforming Use. When a nonconforming use has been inactive for a period of thirty continuous months, the land and its associated improvements shall thereafter be used only in accordance with the provisions of this title. An intent to resume activity shall not qualify the property for a continuation of the nonconforming use. For the purposes of this subsection, the thirty month period of continuous ceased operation shall be tolled by:
1. The period in which the use of the property is the subject matter of any action in a court of competent jurisdiction until such time that a final settlement, order, decree, or judgment has been rendered. For purposes of this subsection, “use of the property” shall mean a function or operation that constitutes an activity occurring on the property. Other litigation that does not pertain to the issue of use of the property, including but not limited to bankruptcy litigation, marital or estate asset distribution litigation, or a landlord/tenant dispute, shall not operate to toll the thirty month period of continuous ceased operation.
2. The period during which a property was significantly damaged as a result of the severe rain event that occurred on May 1 and May 2, 2010, provided that in no event shall the period of inactivity exceed sixty months from the date of damage in order for the property to maintain status as a protected nonconforming use.”

II. By deleting Section 2 in its entirety and substituting with the following new Section 2:

Section 2. That Title 17 of the Code of The Metropolitan Government of Nashville and Davidson County, Zoning Regulations, is hereby amended by amending subsection E. of Section 17.40.650 by adding the following provision at the end thereof:
“5. Nonconforming use structures damaged or destroyed by flood. Notwithstanding the foregoing, a structure containing an industrial, commercial, business, or residential nonconforming use that was destroyed or significantly damaged as a result of the severe rain event that occurred on May 1 and May 2, 2010 may be restored within sixty months from the date of damage, regardless of percentage of damage or destruction. Otherwise, the structure shall be subject to all provisions of this title.”

Sponsored by: Duane Dominy, Jason Holleman

LEGISLATIVE HISTORY
Introduced:	January 17, 2012
Passed First Reading:	January 17, 2012
Referred to:	Planning Commission Planning & Zoning Committee
Passed Second Reading:	March 6, 2012
Deferred:	March 20, 2012
Amended:	April 3, 2012
Passed Third Reading:	April 3, 2012
Approved:	April 4, 2012
By:
Effective:	April 9, 2012