June 12, 2003
Dear City Attorney:
You have the following question: Is a certain fireworks establishment inside the city
A grandfathered under Tennessee’s preexisting nonconforming use law under the facts reflected in our e-mail of this date, and attached hereto?
I cannot answer your question without specific information with respect to the time or times that the fireworks establishment was not in operation, and some idea of why it was not in operation during that period or periods. However, I can give you some general guidance on the effect periods an establishment is closed and/or does not have a business license have on its protection under Tennessee’s preexisting nonconforming use law.
Application of Tennessee’s Preexisting Nonconforming
Use Law B Abandonment Of The Use Is Key
Tennessee’s preexisting nonconforming use law [Tennessee Code Annotated, ' 13-7-
208(b)] provides that:
(b) In the event that a zoning change occurs in any land area where such land area was not previously covered by any zoning restrictions of any governmental agency of this state or its political subdivisions, or where such land area is covered by zoning restraints of a governmental agency of this state or its political subdivisions, 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.
Subsections (c) and (d) respectively provide for the expansion and reconstruction of preexisting non-conforming uses.
It is said in Rives v. City of Clarksville, 618 S.W.2d 5023 (Tenn.Ct. App. 1981), that before the protection of Tennessee Code Annotated, section 13-7-208 can be claimed, two requirements must be met: (1) There must be zoning where there previously was none, or there must be a change in zoning restrictions; and (2) There must be permissive operation of a business

June 12, 2003
Page 2 prior to the change. Rives also puts the burden on the plaintiff to show that he meets those requirements. Under the facts your e-mail relates, the fireworks establishment was an existing use when the city annexed the territory in which it is located in 1969. Presumably, it was a legal use. For those reasons, the establishment comes within the protection of Tennessee Code
Annotated, ' 13-7-208.
Based on our telephone conversation this morning, the reason that the establishment was not operated as a fireworks establishment last previous year was that the city prevented its operation in that capacity. I am not sure how that was done, but the fact that the city stopped its operation in that capacity is the important fact.
It is said in Yokley, Zoning Law and Practice, 4 th
ed., section 22-13, that:
The abandonment of a nonconforming use depends upon the concurrence of two factors: one, an intention to abandon; and two, some overt act, or some failure to act, which carries the implication that the owner neither claims nor retains any interest in the subject matter of the abandonment....
A discontinuance, without more, will not invalidate a nonconforming use . For abandonment, there must be something added to inaction. A temporary cessation of user, without intent to abandon, will not constitute abandonment of a nonconforming use....The cessation or discontinuance of a nonconforming use without the substitution of another use or without evidence of an intent to abandon the nonconforming use will not prevent its presumption, unless the zoning ordinance so states. [Emphasis is mine.]
The law in Tennessee on what constitutes abandonment is consistent with that general proposition. In Boles v. City of Chattanooga, 892 S.W.2d 416 (Tenn. Ct. App. 1994), the plaintiffs operated an adult establishment as a pre-existing nonconforming use. The city’s zoning ordinance contained a provision declaring that if a nonconforming use was “discontinued” for more than 100 days it lost its nonconforming use protection. The establishment was closed for
22 months as a consequence of a restraining order, and the city argued that its nonconforming status was “discontinued.” The Court did not agree with the city. It looked at the cases from other jurisdictions on the effect of time deadlines in zoning ordinances, and concluded that:
Our review of cases construing zoning ordinances with specific time limits on discontinuance [Emphasis is the court’s.] (the
Chattanooga Zoning Ordinance specifies 100 consecutive days)

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Page 3 reveals an almost even split among the states as to whether voluntariness is an element in the concept of discontinued.
Appellate courts in at least eight states enforce zoning ordinances with specific time limits on “discontinuance” of nonconforming uses without regard to any element of intent. [Citations omitted.]
Appellate courts in at least eight states hold that “discontinuance” of a non-conforming use requires some evidence of intent, often with an overt act, even under zoning ordinances with time limitations. [Citations omitted.] [At 421]
The Court adopted the view in the latter line of cases, declaring that:
We believe that the term “discontinued” or words of similar import, as utilized in zoning ordinances with specific time limitations, should be construed to include an element of intent, combined with some act B or failure to act B indicative of abandonment. [At 422]
It also reasoned that zoning ordinances are strictly construed in favor of property owners, and that the term “discontinuance” in the city’s zoning ordinance was synonymous with the term
“abandoned,” and that the meaning of the word “abandoned” in the zoning contexts “generally includes an intention by the landowner to abandon as well as an overt act of abandonment.” [At
420] The same result for similar reasons with respect to a landfill was reached in Chadwell v.
Knox County, 980 S.W.2d 378 (Tenn. App. 1998). There the zoning ordinance provided that if the nonconforming use was discontinued for six months it lost its grandfather status, and the use of the property as a land fill was under a cease and desist order.
Lamar Advertising Company v. Town of Farragut, 1986 WL 2639 (Tenn. App. 1986) is an unreported case and for that reason has limited precedential value, but is instructive as to what might be the effect of the property not being used for its nonconforming purpose for a prescribed period. In that case the City of Knoxville’s zoning ordinance extinguished the grandfather status of nonconforming signs under various circumstances including when the sign “which advertises or pertains to a business, product, service, event, activity, or purpose which is no longer conducted or that has not been in use for three (3) months or which is no longer immanent, or any sign structure that no longer displays any sign copy...”, and when “Any building or structure or land area which is used in whole or in part as a nonconforming use which is abandoned by or vacant from that nonconforming use for a consecutive period of 365 days...” The city argued that the grandfather status of signs that had been blanked out for several years was extinguished under its zoning ordinance.

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Page 4
In rejecting the city’s argument, the Court reasoned that, consistent with earlier Tennessee cases and treaties on zoning, there must be more than mere non-use of the signs to constitute their abandonment. Here the sign company had made timely lease payments on the property on which the signs sat, the signs structures remained on the land, and:
It was only the advertising face of the billboard which had been blank for a period of time B not the land itself. In this instance, as with most businesses, there is at times more demand for the business products or services than at others. It was uncontested at trial that 25% of the billboard’s in Lamar’s inventory had no advertising copy of them at any given time. This case would be in a different posture if the structures had been torn down by the
Appellee or if the lease had been terminated . [At 4] [Emphasis is mine]
A preexisting nonconforming fireworks establishment would appear to stand in the same position as the adult business establishment in Boles, and the other cases cited above. As long as the structure has not been torn down, its nonconforming status continues, absent some other convincing proof that the owner intended to abandon it.
Unless there is solid evidence that the owner of the fireworks establishment intended to abandon the use of the property for that purpose, in addition to the fact that it has not been used for that purpose for one year, the property is probably a preexisting nonconforming use entitled to the protection of Tennessee Code Annotated, section 13-7-208.
Failure to Pay Business Tax As Evidence of Abandonment of Use
The property owner’s failure to obtain a business license for whatever period does not appear to me to intercept the protection the fireworks establishment has under the preexisting nonconforming use law. In State ex rel. v. Polin v. Hill, 547 S.W.2d 916 (1977), the City of
Gatlinburg refused to issue business licenses for four businesses the city claimed were in violation of the city’s zoning ordinance and another ordinance that prohibited activities that interfered with the normal use of adjacent sidewalks. The city acted under an ordinance that gave public officers and employees the right to refuse to issue business licenses to applicants whose use of the property for which the application was made involved activities made illegal by the ordinance. The Tennessee Supreme Court held illegal the city’s refusal to issue the business license, declaring that:
Section V of Ordinance 330 cannot be used to deny relators the

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Page 5 right to procure a license required by the Business Tax Act, a state law of general application. Nor can the zoning ordinance be enforced by the indirect method employed here. [At 918]
The Court reasoned that under the Business Tax Act the city had only the power with respect to the issuance of business licenses contained in that Act, that under the Act, “the only condition precedent to the issuance of the license is payment of the tax and no grounds are provided upon which to predicate a refusal to issue said license.” Further, continued the Court:
Enforcement of these ordinances must be in direct proceedings as prescribed by law wherein the possession or non-possession of the privilege license required by T.C.A. 67-5819 is as irrelevant as compliance or non-compliance with said ordinances are to this proceeding. [At 917-18]
Polin v. Hill can be distinguished from your City’s case, because the city seeks to cut-off the protection of the fireworks establishment because it failed to obtain a business license, but that appears to me a distinction without a difference. The theory behind Polin v. Hill works both ways: whether a city refuses a person a business license in order to advance police power regulations, or a person fails or refuses to obtain a business license from the city for whatever reason, the Business Tax Act is a tax statute that stands by itself.
City’s Right To Adopt Police Power Regulations
The city is certainly entitled to enact police power regulations that apply to existing establishments that sell fireworks. Many cases involving police powers adopted by municipalities and applied to existing buildings indicate that building permits for existing buildings can be revoked if those buildings do not comply with such after-adopted regulations.
In Tennessee, Howe Realty Co. v. City of Nashville 141 S.W.2d 9094 (1940), and
Haymon v. City of Chattanooga, 513 S.W.2d 185 (1973), both involved the question of whether a building permit could be revoked, they also both declare that a building permit can be “ changed or revoked if it becomes necessary in the exercise of the police power.”
That proposition is supported by a recent case from our sister state of Arkansas that addresses that question. In Smith v. City of Arkadelphia, 984 S.W.2d 392 (Ark. 1999), a tornado occurred and severely destroyed and damaged property in the city, including several mobile homes owned by Smith. Smith obtained several building permits from the city to replace his destroyed and damaged mobile homes. He had also done some “grading and gravel work in preparing sites....” But he had placed only one mobile home when the city amended its ordinance regulating mobile homes, adding new requirements relating to their construction and anchoring.

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Page 6
The Court pointed out that the parties agreed that the mobile home already placed in the city was not subject to the provisions of the new ordinance. However, in strong dicta relying on
Tankersley Bros. Indus., Inc. v. City of Fayetteville, 296 S.W.2d 412 (1956), it declared that had there been such a disagreement, the trial court could have properly found that the city could not have compelled the plaintiff to remove that mobile home. In that case a property owner was granted a building permit. Four months after the construction on the building was completed, the city attempted to force the property owner to remove the building. Because the city had allowed the property owner to construct and operate the building it was equitably estopped from revoking the building permit. Tankersley, continued the Court, “suggests that an applicant for a building permit may acquire a kind of property right when he has incurred liability thereon .” [At 47]
[Court’s emphasis.] [Citation omitted.]
But “this right is not unlimited,” declared the Court, because:
Tankersley goes on to state that it is generally held the permit cannot be revoked without cause or in the absence of public necessity for such action. [Citation omitted.] As a general rule,property is not exempt from the operation of subsequent ordinances and regulations enacted by the corporation. [Citation omitted.] [At 47]
The mobile homes for which building permits had been issued but that had not yet been placed in the city fit into that category, concluded the Court. In rejecting Smith’s argument that the issuance of the building permits for the mobile homes under the old ordinance granted him a
“property right” to proceed with the construction of all the mobile homes, the Court reasoned that:
The general rule that a grant of a license by a municipality is made with the implied reservation of the right to impose reasonable police regulations , which may go to the extent of revoking the license, which was not done in the case before us. Therefore, the possession of a license does not exempt the licensee from the operation of ordinances and regulations that were legally enacted in the exercise of such powers after the issuance of the licenses. 51
Am.Jur.2d Licenses and Permits ' 145 (1970). [At 45] [Emphasis is mine.]
The Court then declared that:
We have previously approved this general rule in Wilder v. Little
Rock, 150 Ark. 439, 234 S.W.429 (1921). There appellant,
Wilder, contended that by the issuance of a building permit and the

June 12, 2003
Page 7 payment of rent on the premises, and other expenditures for lumber, etc., he had acquired a vested property right which could not be taken away by the action of the city. In the case before us,
Mr. Smith contends that a property right was established when, in reliance upon his building permit, he did some site preparation work, and prepared some manufactured homes for placement on the city lots. In addressing the same issues of law and fact in
Wilder, we stated:....The permit was merely the granting of a privilege, and did not constitute a contract between the city and appellant. No vested rights were acquired by obtaining a permit, and none arose in the acquisition of property or preparations for the construction of the building prior to the enactment of the new ordinance, and we do not have to deal here with the displacement of vested rights by the passage of the ordinance extending the fire limits. The city council was clearly within its powers in passing the new ordinance and as before stated, the appellant was not exempted from its operation by the fact that he held a permit to construct a building on the lot in question. [At 45-46]
Arkansas municipalities, said the Court, had a statutory authority to regulate the erection, construction, reconstruction, alteration and repair of buildings, and to pass by laws and ordinances in that area:
Thus, municipalities have the power and duty to make reasonable provisions for the safety of persons and property and municipal authorities have wide discretion in those matters. [Citation omitted.] In Phillips v. Town of Oak Grove, 333 Ark. 183, 968
S.W.2d 600 (1998), we stated that a city has the plenary authority to exercise its police powers to protect public health and safety which is founded on public necessity. [Citation omitted] In fact, the mere possibility of public harm is a sufficient basis for a municipality to regulate under its police power. [Citation omitted.]
[At 46-47]
Cases from other jurisdictions are in accord with Smith v. City of Arkadelphia. In fact, they are even more emphatic that the granting of a building permit does not prohibit a city from imposing building code regulation that did not exist at the time the permit was issued. In Daniels v. City of Portland, 265 P.790 (1928), the Oregon Supreme Court upheld a city ordinance that required the retro-fitting of larger windows in dwellings erected prior to the adoption of the ordinance, as a condition of the continued occupancy of the dwellings. Such a regulation was within the police power of the city, and was reasonable. The Court reasoned that:
It [the ordinance] neither destroys nor impairs any vested right

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Page 8 acquired under existing law. A careful reading of the ordinance discloses that it is solely prospective. The building permit granted by the city of Portland for the construction of the Harris Hotel does not affect the right of the police power of the city of Portland to adopt and apply to it regulative measures looking to the public health... [At 792]
That was true, continued the Court, even though the retro-fitting would impose a considerable financial burden on the owner of the building.
In Apple v. City and County of Denver, 390 P.2d 91 (1964), the Supreme Court of
Colorado upheld a city ordinance that required a property owner to bring his building up to housing code standards that were not in existence when the building was constructed. The Court rejected the property owner’s contention that the ordinance was illegally retroactive, saying:
Such attacks have been rejected by many courts. See, for example,
Queenside Hills Realty Co. v. Saxl. 328 U.S. 80, 66 S.Ct. 850, 90
L.Ed. 1096, where it is pointed out that in no case does the owner of property acquire immunity against the exercise of the police power because he constructed a building which was in full compliance with the law at the time of construction. [Citations omitted.] To hold that existing buildings are exempt from ordinances which impose standards designed to protect the safety and welfare of the public would in effect permit those whose actions are dangerous to the health and safety of the community to continue their deleterious conduct unchecked. We cannot agree that it is beyond the police power to reach such conduct. [At 94]
The Court also declared that the imposition of a financial burden on the property owner
“is not a sufficient reason per se for declaring the law invalid.” [At 94] The rule governing such financial burdens, concluded the Court, is that “it [the ordinance] must, in its application to the specific property, be such as not to be an unreasonable demand upon the individual for the benefit of the public welfare.” [At 95]
Probably the most pertinent case is Van Sickle v. Boyes, 797 P.2d 1267 (Colo. 1990).
There, the Colorado Supreme Court, citing with approval Apple, above, upheld the 1987 application by the City of Boulder of the current Life Safety (Fire) Code to a building Van Sickle bought and remodeled in 1970. The application of that current code required Van Sickle to provide a second exit from the upper floor, enclose the stairway to the upper level, and to expand the width of the stairway. Van Sickle argued that he had a “vested right” in the building permit issued to him when he remodeled his building in 1970, that the fire code in effect at that time should control his building, and that the application of the current Life Safety Code to his

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Page 9 building constituted retrospective legislation in violation of the Colorado Constitution. The
Court rejected those arguments, declaring that:
A building permit can form the basis for a vested right if the permit holder takes steps in reliance on the permit. [Citation omitted.]
However, reliance on a building permit does not insulate the permit holder from later changes in ordinances enacted under the police powers for the protection of the public . The constitutional ban of retrospective operation does not prevent a city from enacting and enforcing ordinances to protect the health and safety of the community....In this case, Van Sickle was not penalized for violation of the Safety Code for remodeling that was completed prior to enactment of the Safety Code. Application of a safety code to buildings that were constructed in a different period under different code requirements does not constitute unconstitutional retrospective legislation. [At 1271] [Citing Apple, above.]
[Emphasis is mine.]
Nor was the application of the current Life Safety Code a “taking” of Van Sickle’s property or an unreasonable exercise of the city’s police power even though the building was valued at $161,000 and it cost $22,000 to bring the building up to the current code standards,
“...since enforcement of the Fire Department order had not deprived Van Sickle of all reasonable use of the building.” [At 1272]
It appears to me that Smith v. City of Arkadelphia and the cases similar to it solidly support for the proposition that the language in Howe Realty Co. and Haymon v. City of
Chattanooga declaring that a building permit is not a contract and can be “ changed or revoked if it becomes necessary to do so in the exercise of the police power,” allows the city to impose appropriate provisions of its building, utility, and fire codes on buildings that exist when they are annexed into the city. Those cases point out that a building permit holder may obtain a vested right in the building permit, but that such a vested right does not give the permit holder any vested right to be free from changes in building or similar codes. Tennessee law with respect to the police power appears generally consistent with those cases.
There is no question but that a municipality’s adoption of building codes is a function of the police powers delegated to it by the state. [See especially Thomas v. Chamberlain, 143 F.
Supp. 671 (E.D. Tenn. 1955), aff’d 236 F.2d 417 (6 th Cir. 1956), and Winters v. Sawyer, 463
S.W.2d 705 (1971)] Such completion dates promote the health, safety and welfare of the citizens of the city, which is the essence of the police power. [Penn-Dixie Cement Corporation v.
Kingsport, 225 S.W.2d 270 (1949); Spoone v. Morristown, 206 S.W.2d 442 (1947); Consumers
Gasoline Stations v. Pulaski, 292 S.W.2d 735 (1956); Corporation of Knoxville v. Bird, 80 Tenn.
1212 (1883); Garrell v. Newport, 1 Tenn. Ch. App. 120 (1901)].

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Page 10
A municipality cannot contract or otherwise bargain away its police powers. In City of
Paris v. Paris-Henry County Public Utility District, 340 S.W.2d 885 (Tenn. 1960), an important distinction is made between the authority a franchise gives a public utility over municipal rightsof-way and the authority a municipality has to control the conditions of the exercise of that franchise. In that case the question was whether a utility district could make excavations in the city’s streets without complying with the city’s ordinance governing such excavations. The city had by ordinance 295 in May, 1956, granted to the utility district a franchise to lay, construct and maintain its gas lines under the city’s streets. Following the utility district’s failure to restore streets it had excavated for that purpose, the City of Paris, by ordinance 316 in May, 1959, required any person making a street excavation to obtain a permit from the city, and to pay a permit fee.
The utility district argued that ordinance 316 was unconstitutional and an impairment of a contract under Article I, Section 20, of the Tennessee Constitution on the ground that ordinance
295 provided that utility district’s agreement to the contract would be the consideration and “in lieu of all other fees, charges and licenses which the City might impose for the rights and privileges herein granted.” The Court rejected the utility district’s argument.
It was true, said the Court, that when the utility district accepted the franchise, it became binding upon the city, and that the franchise gave the utility district the right to use the city’s streets to install its pipes, and that the contract right created by the franchise could not be revoked or impaired by the city. However, continued the Court, the utility district’s right was:
....subject to regulation by the City, acting in its governmental capacity under the police power , delegated to it by the State, to regulate and control its streets for the public health and safety.
Such power is broad and cannot be limited by contract. [Citations omitted]
The Court also held ordinance 316 to be a valid police power regulation, reasoning that:
Such right [of the utility district to use the city’s streets under the franchise], was subject to regulation by the City, acting in its governmental capacity under the police power , delegated to it by the State, to regulate and control its streets for the public health and safety. Such power is broad and cannot be limited by contract. [At
888] [Citations omitted] [Emphasis is mine]
Tennessee law is also consistent with the proposition that constitutional restrictions on retrospective legislation do not apply to exercises of the police power. Article I, ' 20, of the
Tennessee Constitution, which provides, “That no retrospective law, or laws impairing the

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Page 11 obligations of contracts, shall be made,” has repeatedly been held not to apply to the exercise of the police power of the state, including the police power of the state delegated to municipalities, and that all contract rights are subject to both the retrospective and prospective exercise of the police power. [Marr v. Bank of Tennessee, 72 Tenn. 578 (1880); Shields v. Clifton Hill Land
Co., 28 S.W. 668 (1894); Draper v. Haynes, 567 S.W.2d 462 (Tenn. 1978). Also see Paris v.
Paris-Henry County Public Utility District, 240 S.W.2d 885 (1960), and many other cases.]
If in Paris v. Paris-Henry Utility District, the city could impose police power regulations on the exercise of a franchise (which was a contract between the city and the utility district), it stands to reason that a city can under its police powers impose fire codes on existing buildings.
In addition, Smith v. City of Arkadelphia, Daniels v. City of Portland, Apple v. City and County of Denver, and Van Sickle v. Boyes, point out that the application of new building regulations to existing buildings must be reasonable. Where the line lies between reasonable and unreasonable in the application of such regulations is not clear. Presumably, each case would have to be decided on its merits. Presumably, tight fire-related regulations could be imposed on buildings that house fireworks.
The facts contained in your e-mail indicate that the City has adopted the Standard Fire
Code. I determine from the Municipal Code that the city has adopted the 1997 version of that code. [Title 7, Chapter 2] I have the 1999 version. As I recall it does not differ from the 1997 version on the subject of fireworks, but you will need to check me on that. The 1999 version,
Chapter 20, says, “Except as hereinafter provided, it shall be unlawful for any person to possess, store, offer for sale, sell at retail, or use or explode any fireworks...” [ ' 2002.2] However, the same section also says:
Exception : Where state or local law permits the sale of consumer fireworks (1.4G) and such articles are not stored in a building conforming with the requirements for a Group H occupancy, they shall be stored in a magazine conforming to the requirements of
Chapter 19 for low explosives.
Your e-mail indicates the city is passing a fireworks ordinance. Presumably, that ordinance takes into account Chapter 20 of the 1997 Standard Fire Code.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/