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.”