TACIR Releases Land Use Report

Tuesday, July 30, 2013 | 7:29am

Nashville, TN–A new report by the Tennessee Advisory Commission on Intergovernmental Relations, Land Use in Tennessee—Striking a Balance, reviews and comments on seven bills referred to the Commission by the General Assembly last year.  In its report, the Commission notes that disputes between landowners over how they want to use their property have long been a source of tension, but until the early 20th century, the only recourse people had was to take their neighbors to court, a costly, time-consuming, and uncertain process.  By mid-century, through changes in state law, most of those disputes were handled by elected officials or their boards and staff.  Even so, land-use issues are no less controversial, bills aimed at changing the laws designed to settle them are made every year.  The bills sent to the Commission in 2012 focused on four areas of the law:  what constitutes a subdivision, who gets to regulate land use outside city limits in areas set aside for them to annex, roads built by developers, and grandfathering of land uses that don’t conform to new zoning requirements.

Defining Subdivisions

Tennessee’s current framework for subdivision regulation allows but does not require local governments to set standards for the division and development of land into tracts that are five acres or smaller or that require extension of roads or utilities.  All states have similar provisions, but only five others limit this grant of authority based on lot size.  One bill sent to the Commission (House Bill 2818 by Rep. Faison) would have prevented regional planning commissions in the 47 Tennessee counties without countywide zoning from regulating all lots one acre or smaller.  Another bill sent to the Commission (House Bill 3042 by Rep. Elam) would have enabled local governments to regulate the subdivision of lots between 5 and 25 acres in size.  In its report, the Commission notes that exempting lots one acre or smaller from regulation could jeopardize property values by denying property owners such benefits as adequate roads and water as well as assurances that development of adjacent property will comply with similar standards.  Amending the law to apply to lots larger than five acres could extend these benefits to more property owners.

Planning and Zoning by Cities Outside Their Boundaries

Current law allows cities in the 47 counties without zoning to apply to the state for authority to zone and regulate subdivision of land in a region larger than the city itself, but only when the county’s governing body agrees.  Two bills studied by the Commission would have changed that.  One (House Bill 125 by Rep. Sargent) would have allowed cities in counties without countywide zoning to both zone and regulate land use outside their corporate limits without the approval of the county.  The other (House Bill 3041 by Rep. Elam) would have allowed those cities to regulate subdivisions, but not zone, outside their corporate limits without the county’s approval.  Support for these bills was based on the cities’ concerns about becoming responsible through annexation for development that does not meet city standards.  Opposition stemmed largely from the concerns of residents living outside the cities about land-use regulations being imposed on them by government officials for whom they cannot vote.

Tennessee law provides two routes for resolving these conflicts, first through creation of joint city-county planning commissions and, since adoption of the state’s Growth Policy Act in 1998, through joint economic and community development boards.  The report notes that four joint commissions are already operating effectively:  Knox County and the City of Knoxville, since April 1956; Hamilton County and the municipalities of Chattanooga, East Ridge, Lakesite, Lookout Mountain, Ridgeside, and Walden, since June 1943; Montgomery County and Clarksville, since January 1963; and Pickett County and Byrdstown, since August 1976.

Roads Built by Developers

Under current law, all local planning commissions can set standards for construction of roads in subdivision.  One bill sent to the Commission (House Bill 3040 by Rep. Elam) applied only to roads in cities’ planning regions outside their corporate limits and would have required those cities to accept full responsibility for new subdivision roads, relieving the county of any responsibility for those roads.  In effect, legislation would have consolidated responsibility for those roads in the municipalities, but there was no consensus among city officials in support of it.  Another bill (House Bill 3105 by Rep. Faison) would have permitted a developer and lot purchasers to agree through restrictive covenants to develop and maintain the roads in a subdivision themselves.  A planning commission could not prohibit private road maintenance agreements and, consequently, could not deny subdivision plat approval simply because the roads are private instead of public.  The Advisory Commission found that it was unclear whether a planning commission would be able to require such roads to meet the construction standards adopted for subdivision roads.  The concern leading to introduction of this bill was the cost to build roads to municipal standards, but the Commission found that concern to be outweighed by the benefits of both increased safety and lower long-term maintenance costs.

Land Uses That Do Not Conform to Zoning Regulations

Although a number of bills were introduced in 2012 related to provisions that protect landowners from zoning changes, only one was sent to the Commission.  That bill (House Bill 3043 by Rep. Elam) would have removed language from current law requiring local governments to prove intentional abandonment or discontinuance of land use that does not comply with current zoning in order to prevent the landowner from re-establishing that use.  Local governments would have been required instead to prove abandonment based on criteria such as utility connection information and dated pictures indicating abandonment.  The Commission noted that substituting specific criteria for the requirement to prove intent would benefit local governments and clarify for landowners exactly what constitutes abandonment.

The full report is available on TACIR’s web site at www.tn.gov/tacir/pubs_by_date.html.  For more information, contact Leah Eldridge by email or by phone 253-4241.

The Tennessee Advisory Commission on Intergovernmental Relations (TACIR) serves as a forum for the discussion and resolution of intergovernmental problems; provide high quality research support to state and local government officials in order to improve the overall quality of government in Tennessee; and to improve the effectiveness of the intergovernmental system in order to better serve the citizens of Tennessee.

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Advisory Commission on Intergovernmental Relations