Tenn. Code Ann. § 13-7-208(b)(1) (Supp. 2008) is characterized as a "grandfather clause." A "grandfather clause" is an exception to a restriction that allows all those already doing something to continue doing it, even if they would be stopped by the new restriction.
Defendant city banned through an ordinance the sale of fireworks within its city limits. After defendant annexed property adjacent to its borders, appellant fireworks retailer asked defendant for permission to continue selling fireworks as a pre-existing nonconforming use, but defendant refused. Plaintiff filed an action against defendant city, seeking a declaration that Tenn. Code Ann. § 13-7-208(b)(1) (Supp. 2008), which contained a "grandfather clause" that served as an exception to a restriction that allowed all those already doing something to continue doing it, even if they would be stopped by the new restriction, permitted it to continue to sell fireworks after defendant annexed the property on which its business was located. The trial court dismissed the complaint in accordance with Tenn. R. Civ. P. 12.02(6). The appellate court affirmed. On further appeal, the state supreme court affirmed the appellate court’s judgment.
Was plaintiff fireworks retailer entitled to the grandfather clause under Tenn. Code Ann. § 13-7-208(b)(1) (Supp. 2008)?
The fireworks ordinance was not related to the city's general plan of zoning. Because, by its own terms, the ordinance could not be characterized as being tantamount to a zoning ordinance, it was not a zoning restriction under the substantial effect test. The fireworks ordinance did not refer to nor did its operation depend upon the city's zoning plan. The fireworks ordinance did not refer to land, zones, buildings, lot lines, or any other terms and concepts customarily associated with comprehensive zoning plans. The fireworks ordinance reflected the exercise of the city's traditional, general police power granted in Tenn. Code Ann. § 6-2-201(22) (2011). Because the ordinance was not a zoning ordinance, it was neither a "zoning change" nor a "zoning restriction" for the purpose of § 13-7-208(b)(1). Therefore, plaintiff could not take advantage of the grandfather clause in § 13-7-208(b)(1).