Mayor battles state lawmakers, chamber over zoning overhaul

Sunday, February 26, 2012 at 11:48pm

A trio of Republican-backed state development bills, pushed as efforts to “restore” property rights, has alarmed Metro Council members who allege the legislation would “gut” Nashville’s community-led zoning overlays that guide growth along corridors and in neighborhoods.

Mayor Karl Dean opposes the state bills, suggesting they threaten local control, a stance that has positioned him opposite of a usual ally: the Nashville Area Chamber of Commerce, which is lobbying for the anti-regulatory land use legislation. Metro government provides the chamber $300,000 annually for economic development services. But on this issue, the chamber is pitted against Metro. 

“[The mayor] cannot support anything that limits the power of local governments to protect neighborhoods and the quality of life of our residents,” Dean’s spokeswoman Bonna Johnson said.

Indeed, Metro leaders contend this legislative endeavor is the latest in a now-undeniable trend of the GOP-dominated state legislature: Use state supremacy to override, even circumvent, the autonomy of local municipalities. Moves seem to be pinpointed specifically toward Democratic-leaning Davidson County.

Republican lawmakers last spring nullified Metro’s nondiscrimination bill that gave employment protections to gays, lesbians and transgender workers. On the agenda this legislative session is a bill that would prevent local governments from mandating minimum wages.

“It is very concerning that officials who profess to have such great disdain for the federal government dictating to state governments seem to totally disregard their basic core philosophy when it comes to state government inserting itself in local government issues,” At-large Councilman Ronnie Steine said.

The three state zoning bills, introduced by Hermitage-area Republican Rep. Jim Gotto, a former Metro councilman, would dramatically curtail Metro’s capacity to make and enforce zoning decisions, Metro officials say. In doing so, measures hand greater authority to private property owners on planning issues, limiting the reach of local zoning laws that developers have long bemoaned.   

Gotto, a one-term legislator up for re-election in November, said his bills are “all about job creation.” For too long, he claims, building and zoning regulations have piled up, creating “layers” of bureaucracy impeding businesses from flourishing. 

“It’s a restoration of some property rights,” Gotto said of his legislation, which could go before a subcommittee this week. “The pendulum has swung. We just need to re-balance this a little bit. I’m hoping some good, positive things will come out of this. We’re certainly not trying to shut down planning commissions.”

 

 

Collectively, the state bills broaden so-called “grandfather” protections for property owners, shielding them from local zoning laws enacted over time. Critics see the proposed policies as an attack on overlays and “specific plans” — sets of guidelines adopted over the past decade — aimed at improving aesthetics and fostering pedestrian-friendly growth in certain areas.

These local zoning laws, which originated after years of community input, include landscape, signage and street-setbacks standards recently adopted for corridors such as Gallatin Road and Lebanon Pike, among others. 

“It basically guts out any existing overlay,” Councilman Phil Claiborne, who serves on the Metro Planning Commission, said of the state proposals, adding that provisions for these corridors “won’t be worth the paper they are written on.”

“The impact of these bills effectively makes it impossible for the [Metro] planning commission to move forward to work with communities to develop community plans that call for planned change to evolve,” Claiborne said.

One of the bills, HB3696, would apply vested rights to a development permit, overriding 70-plus years of Tennessee common law, according to the legal analysis of Jon Cooper, the Metro Council’s attorney. Effectively, after a developer receives an initial permit, they would not have to comply with new building and stormwater regulations created after the issuance of the permit, he wrote. For residential subdivisions built in different phases, terms approved during the first phase would be applied to additional phases built years, even decades, later.

“If a community were to face explosive growth, and that original approval hadn’t required a developer to do certain infrastructure improvements, then the developer could just do nothing for years and years, and the city could do nothing to go back and set some sort of conditions,” Councilman Jason Holleman said.

Raising many eyebrows is HB3694, which according to Cooper’s analysis rewrites state statute on “nonconforming property.” The term generally refers to existing commercial or residential structures, as well as property uses, that are technically no longer permissible under later-adopted zoning guidelines such as the Gallatin Road Specific Plan. Nonconforming statuses, under the state proposal, would extend to single- and two-family homes. 

Nonconforming structures — labeled such because they don’t adhere to new setbacks or building specifications, for example — are allowed to remain after new zoning guidelines are enacted. But currently, after 30 months of not being used, a property’s future use and structure must comply with new regulations.

Gotto’s bill would seemingly overhaul this policy. According to Cooper’s analysis, the state proposal would protect all nonconforming property “forever” unless the property owner “intentionally and voluntarily relinquishes them.”

The crux of this complicated zoning matter is this: Metro could still enact its own overlays or specific plans, but critics fear the city would lose its tools to trigger the application of these zoning guidelines. 

And then there’s the criticism of state obstruction. 

Twenty-two council members signed a letter sent to Republican state leadership last week that put the Metro Council on record opposing Gotto’s proposals. “Local governments in Tennessee should have the freedom and authority to make decisions that are solely applicable to their communities without state interference,” the letter reads.

 

 

Many in Nashville’s development community have long criticized Metro’s zoning laws along commercial corridors as a hindrance to future development. They say the guidelines, though well-intended, are costly to engineer, and the process to obtain building permits is arduous to navigate. Some developers pin the blame directly on the Metro Planning Department.

Marc Hill, the Nashville chamber’s chief policy officer, said the state development bills’ evolution and introduction followed a “groundswell” of support from the business community.

“We are one of several business organizations across the state that are supporting these bills,” Hill said, adding that chambers in Knoxville, Memphis and Chattanooga back the measures as well. He stressed the chamber is open for “ample discussion” on the bill that addresses nonconforming property. “We have a partnership with Metro government to create economic prosperity in this region, to help create jobs,” Hill said when asked about concerns put forth by Dean and council members. “These bills are an attempt to clarify state law.”

Despite Metro’s opposition, and the history of developers’ criticizing zoning plans in Nashville, Gotto claims his bills aren’t targeted at Davidson County.

“This is not a Metro [specific] bill,” Gotto said. “This is across the state. The planning bills, what they are about is job creation, job preservation. It’s not about trying to take away any legislative authority from anybody across the state. What it is about is trying to get some checks and balances in place on bureaucratic boards across the state.”

Chamber officials and Gotto both credit Republican Lt. Gov. Ron Ramsey’s recent “Red Tape” statewide tour — which sought to identify ways “government makes life harder” for small businesses — for identifying zoning hurdles. Gotto’s bills resulted. 

“While there are some situations when SPs [specific plans] and overlays are useful and beneficial, I have concerns when SPs and overlays are put on properties either without the knowledge property owners, which has happened in some cases, or against the wishes of the property owner,” Gotto said. “That’s what typically happens when you have these massive zonings and overlays.

A related state bill, HB1345, which Williamson County Republican Rep. Glen Casada has introduced, prohibits a local government from rezoning private property without the consent of affected property owners. 

“There’s a lot of negativity in the business community about those kinds of things, when the government comes in and just takes a wide swath [of property], and just totally rewrites it,” Gotto said.

Claiborne, the Donelson-area Metro councilman, contends Gotto’s bills “were written by a local Nashville attorney. They reflect the attitude of a cluster group of business people in Nashville.” He declined to reveal a name.

Claiborne is seemingly referring to Shawn Henry, a real estate attorney at Tune, Entrekin & White, who has worked on behalf an organization that calls itself Citizens for a Better Nashville, which has criticized Nashville sign regulations, among other zoning laws. 

“It’s safe to say our law firm prepared the bills,” Henry said when asked by The City Paper.

“I understand what the cities are arguing for, and that is, ‘Hey, let us make our decisions,’ ” Henry said. “From a legal perspective and a public policy perspective, what’s being missed here is that the very reason local governments are permitted to make local land-use decisions is because the state has granted them that role.”

18 Comments on this post:

By: spooky24 on 2/27/12 at 7:00

"Moves seem to be pinpointed specifically toward Democratic-leaning Davidson County."
"now-undeniable trend of the GOP-dominated state legislature"

You bet it is. This is a perfect example of why the entire Metro Council is obsolete as a governing body in today's instant gratification political environment. Did you really think all the grandstanding to the national media-to enhance ones 'political image' would go unpunished? You have persons put in leadership-with no qualifications or experience- that see an easy opportunity to gratify themselves on a national stage-at the expense of others! I replete-At the expense of others!

C'est la vie

By: Ask01 on 2/27/12 at 7:49

One comment, buried in the body of the story, jumped out at me.

The phrase indicates to me the chameleon nature of politicians to alter their message, or more appropriately their slaes pitch catchphrase, or trigger words, to dupe the public into supporting them.

At one time, when the economy was healthy, the phrase tossed carelessly about was "for the children," used to justify all manner of pork barrel projects which would peripherally at best impact the welfare of children.

Now, with the economy in the gutter, the middle class embattles, and corporate America often posting record profits, while despicably, cutting jobs and awarding obscene bonuses to upper management, the watchword has changed.

The new magic phrase has become, it seems, "to create economic prosperity in this region, to help create job.” Almost as if this grants some sort of absolution for any number of transgressions, I seem to be hearing this more often.

I do hear of jobs being created, but at the same time, often less heralded, jobs are being lost as businesses close and lay off workers.

I have read it opined that business cannot create jobs where there is no demand, however, there will be no demand if people have no jobs, providing them with money to create that elusive demand. Sitting on money, saying there is no demand when getting that money into the economy will create demand seems faulty reasoning.

The business community wants the ability to expand and "create jobs."

I say, first create jobs, then ask for some leeway to expand and create more jobs.

By: govskeptic on 2/27/12 at 8:03

"I say first create jobs", sounds like the words coming from our President who
knows absolutely nothing about business nor the free enterprise system!
For decades the Metro Government through the Planning and Zoning dept's
had state legislation passed that gave them all the power over homeowners
and others. With that power they could take private property or rezone it as they
wished and get away with only paying what they wished. Change may be needed!

By: Ask01 on 2/27/12 at 9:05

While it it true, I admit, I have little knowledge of business and the way the free enterprise system is manipulated for their benefit, I do know one irrefutable fact.

If people don't have jobs, they don't have money. If they don't have money, they don't spend. If they don't spend, there is no demand.

I also know one other fact, now that I think about the issue. Recently, corporations have closed locations and putting people out of work, then posted record earnings, usually awarding huge bonuses to leadership.

Consider that by firing perhaps two senior executives, saving their salaries and bonuses, or perhaps cutting out all bonuses and executive perks, many jobs could have been saved.

Corporate America needs to wake up and create jobs so people have money to spend, creating demand for more jobs and keeping the corporate monster alive. Corporate America needs to downsize from the top down, not the bottom up.

The alternative I have long predicted is the installment of a primarily Democrat House and Senate with a Democratic White House, which will, I am certain find ways to take the money and distribute it among the people anyway.

When people are working and able to support their families in a comfortable manner, most are content and don't make waves.

I suppose the simple answer to the business community is spend money, put people to work, and make more money, or, government will take the money from you, give it to people unable to find work, and you get nothing.

By: BigPapa on 2/27/12 at 9:24

This runs counter to the supposed GOP philosophy that those closest to the issues should be the first to govern and deal with those issues i.e. states rights.

If cities are putting in undue regulations, making themselves out to be hostile to business, etc.. then businesses will go else where, the citizen will move else where. For reference see last week's article about Williamson v Davidson County growth.

Pure unrestricted, unplanned, unregulated development isn't a good thing for communities. It leads to blight and sprawl. The only people that come out ahead are the developers.

By: Moonglow1 on 2/27/12 at 9:44

Moonglow1: Vote Republican and your freedoms will be denied. Every time they think up ways to deny your freedom they call it "job creation. ". This bill makes it easy for the state to confiscate your home if a greedy developer wants to build a commercial building in your neighborhood. Every one of us should be in legislative plaza during the bill's presentation. No way should the state curtail the freedom of cities to decide. I trust Davidson County over greedy developers anytime.

The public is being duped big time by ignorant puppets running a tyrannical Communist style (Republican) state government.

Vote these goons out of office. Recall them. They are ruining our state.

Next these goons will approve a nuclear reactor in your neighborhood. As long as it's pro business they don't care. Increases your cancer risk. Who cares. It creates jobs.

By: localboy on 2/27/12 at 10:10

Well, there's not much doubt about the author's viewpoint...this guy ain't subtle.

By: TharonChandler on 2/27/12 at 10:24

Well, it appears that the Mayor of Nashville has enuff opponents without my trying to point out that he's a yankee .

By: 742180 on 2/27/12 at 10:34

Personally I am conflicted here. I hate intrusion by upper levels of government dictating to lower levels. ie Fed's telling State's how to operate, or even more so State's telling local level gov'mt how to operate. I guess oversite is good but...

Yet, the real conflict is....Have YOU tried to navigate the Codes and Planning departments of Davidson or Williamson Counties. It is UNBELIVEABLE!! If one were to research applicants for actual stories related to say, Williamson County electrical inspectors, you would be amazed, and angered at the process and how it financially benefits the inspector.

Dancing thru the approval process is only for the most determined. Many developers just go elsewhere. Prehaps a compromise will be reached.

By: localboy on 2/27/12 at 1:39

Can anybody say "Houston'?

By: Artpress2 on 2/27/12 at 2:20

So, I took up your challenge and examined the navigation needed for Williamson County building inspections for new construction. It took approximately 30 seconds to find the pdf provided with seven clear, sequential steps, from digging the footings to final occupancy. It is available at: http://www.williamsoncounty-tn.gov/DocumentView.aspx?DID=532 .

If this is hard to follow, it is due to a reading comprehension problem, not an overbearing government problem.

By: Ask01 on 2/27/12 at 3:02

I am impressed Artpress2. What did you find for the same regarding Davidson County?

I ask, because I know, at least in the state where I am loathe to admit I was born, local codes, city and county can vary widely. Or, let me hasten to say, such was the case nearly 40 years ago. (Considering the rubes reluctance to join the 20th century, much less the 21st, I suspect little has changed.)

I would be curious to know if, after comparison, you found the Davidson codes as clearly and concisely written as you describe the Williamsom codes.

And how such an oversight could have been allowed to remain in print.

By: BigPapa on 2/27/12 at 3:22

Look at the mess that Antioch has become. THAT is your example of lack of planning. Just saying YES to ever developer turned that area of Nashville into a complete $ hit hole, and once a place is down, it could be 40 years before it comes back.. if ever.

By: Ask01 on 2/27/12 at 4:34

An excellent point, BigPapa.

When we moved here, the new high school was just opening, and as I recall, was heralded as being sufficient to fill local needs for the forseeable future.

Recently, I read the school was already at saturation point for students. If I remember correctly, there is not even more room for portables, even if the cafeteria could support the extra students.

Either someone's crystal ball needs an overhaul, or the rampant granting of building permits with an eye to expanding the tax base while closing the eye to the needs of future residents got the better of city planners. If any real planning was actually conducted.

By: jonescry on 2/28/12 at 8:59

Everyone needs to read the actual bills proposed not rely on anyone's interpretation. Once you read them you need to contact whatever legal help you have or your local government to actually understand the impact of the bills. I have and they go far beyond what this article describes. Basically, these bills will strip every community in Tennessee the ability to protect property values through prudent zoning laws. For example, if these bills are passed and you live in historic downtown Franklin if a current owner wants to install a vinyl fence around his entire house - he is free to do so as long as he owned the house prior to this restriction. If these bills are passed and you live in Williamson County the local government will have no power to keep your neighbor from installing vinyl siding - none - if he owned the property prior to this restriction - very probable especially for older parts of Franklin and Brentwood. If you live in an area where local business owners are not taking care of their property and have installed plywood signs that are almost falling down and have chosen tenants like adult bookstore owners or payday lenders or discount tobacco - your community will have no power to prevent it because this law make it IMPOSSIBLE for any new zoning overlay to be passed - IMPOSSIBLE. I own multiple properties within Davidson and outside of it and I'm all about my rights but I am also all about protecting the value of my properties. Anyone else who cares about their property values or historic preservation should call their state representative and senator today to stop these horrible bills. But don't take my word for it READ THE BILLS YOURSELVES it takes a quick google search and 10 minutes to read.

By: Moonglow1 on 2/28/12 at 9:14

Moonglow1: jonescry, I totally agree. I know I was being facetious with my earlier comments about placing a nuclear reactor adjacent to a home, but sometimes shock value gets the point across. You said it, though. These bills provide no protection for our property values. I do not think this legislature understands the impact either. The consequence of being against all regulation means exactly what you have conveyed.

By: JeffF on 2/29/12 at 12:00

I would think this would encourage elected officials to work with all residents and businesses in an area instead of just the highly modified preservationists and their overwrought "Remember the McMansions" battle cry.

How many times have the hysteric preservationists been headed off at the pass by neighbors banding together to prevent a limitation of their property rights. The Deaniacs and the people who are unable to discern the difference between "old" and "historic" are going to have to do a better job appealing to all parties effected by a new preservation or planing scheme. The consent of the governed and all that.

Like it or not, people do not have a constitutional right to use government to control the properties of their neighbors. If they want something, they are going to have to learn to sit down, negotiate, and compromise. The new regime at the state is not interested in allowing the imposition of terms on private property owners. Constructive taking is never a good idea.

This may come as a shock, but not everyone thinks the preservation of old buildings is necessarily a good idea, and there are others who like preservation, but think trampling the rights of others is not the right way to get there. You are going to have to realize that rezoning of property is always going to contain some level of grandfathering. The courts generally do not like the reduction of previously owned rights and limits them to only the tightest of public interest cases.

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