Codes

Board of Zoning Appeals

Membership
The Metropolitan Board of Zoning Appeals (BZA) is made up of seven members. These members are appointed by the Mayor and confirmed by the Metropolitan Council.

Board members are appointed to five year terms and may not serve more than two consecutive terms. The Board members elect annually, from their membership, a chair and a vice-chair. Members serve without compensation. To be eligible to serve they may not hold any public office or be in the employment of the Metropolitan Government.

Powers of the BZA
Through a public hearing process, the BZA reviews cases when an application for a zoning permit has been denied by the Zoning Division of the Metropolitan Codes Department. After an application has been denied, the applicant may make application to the BZA and the case is scheduled for public hearing within 60 days.

There are four case types the BZA acts on. Three of these are filed based on an applicants desire to seek relief from the BZA. They are as follows:

  1. Zoning Administrator's Interpretation.
    This type of an appeal requests a review by the BZA regarding the denial of a zoning permit when it is alleged in writing by an applicant that the Zoning Administrator was in error in his denial of a Zoning Permit.

    A non-applicant may appeal to the BZA within 30 days of commencement of construction after the approval by the Zoning Administrator for a zoning permit. A case such as this would generally involve an allegation that the Zoning Administrator erred in the interpretation of the Zoning Code in granting the permit for construction.

  2. Variance Request.
    An applicant, after the denial of a zoning permit because the request violates some provision of the Code, may request that the BZA consider a waiver in a particular provision of the Zoning Code. It is incumbent upon the applicant in a case such as this to demonstrate to the BZA that a hardship exists because of the land and is driving the request for a variance in the provisions of the Zoning Code.

    A typical example of this would be a home owner requesting that they be allowed to construct a carport on the side of their home closer to the side property line than the Zoning Code permits. Because this lot has a severe slope to the rear of their residence, it would be impractical to construct it to the rear even though they could comply with the Zoning Code if located to the rear. If the BZA agrees with this assessment, they would likely grant the request if they thought it could be done in a manner that would not be detrimental to the surrounding property owners. They can impose a condition on a variance such as the carport remain open. They may also consider architectural compatibility with the residence and surrounding properties.

    If the same request was made by the applicant and the lot did not have the physical characteristics such as the slope to the rear, the applicant's request is based on convenience rather than hardship. The BZA would be less likely to look favorably upon the request.

    Another variance request, regarding a commercial project, might be in required parking. The Zoning Code requires a specified number of parking spaces for a particular type business. A zoning code is adopted painting a broad brush in what would normally be the parking requirements for a particular type business.

    The Code may classify a tailor shop as a retail use, which is compatible within the zone district in which the use has been requested. However, based on the amount of floor area the Code may require there be 15 parking spaces provided and the applicant has requested 12. If the applicant can reasonably demonstrate, because of the nature of their business and number of employees, they would not need the required number of spaces, the BZA might entertain such a variance request. The BZA might consider several items in a request such as this. Because of the lot size, it might be difficult to find a user for this property that could reasonably comply with the Code, and the use that is proposed would be a needed service in the area thus benefiting the community. They are comfortable that the evidence offered is a true reflection of the applicant's parking needs. Again, the Board can and likely would impose a condition that the variance is granted to the applicant only. Should the business change, it would be required to comply with the parking requirements for the Code or re-file with the BZA to demonstrate its parking needs.

    A parking variance request that the BZA might have difficulty with may involve a request by a restaurant that is required 15 spaces and it proposes to provide 12. The Code requires that you provide the parking on your property. The applicant's argument to the BZA is that they can only construct a restaurant with 1,500 square feet and be economically feasible, which requires 15 parking spaces. They would argue there is parking available on the street to accommodate the remainder of its business's needs.

    The BZA probably would not look favorably on this request, since the parking on the street would be available to the general public and would not necessarily be available to its customers when needed. The BZA would likely find the property is not suited for that size restaurant and the only real basis for its request is financial, which cannot be the sole purpose for granting a variance.

    The BZA hears many requests for variances of various types. They try to look at the uniqueness of the case, and when entertaining the variance, they would assess the impact. They try to find checks and balances to mitigate any impact a variance request might involve. The BZA seems to grasp the fact that it is an impossibility to draft a Code that can fairly address every situation that might occur and assume responsibility for trying to apply common sense when presented with unique situations.

  3. Change of a Nonconforming Use.
    A nonconforming use is a use that was legally established at the time it was located on a property, but through rezoning, the use is no longer permitted in the zone district. This is a use that is often referred to as "grandfathered".

    The BZA may grant a change in use on a property if they feel the change would be less impactive to the surrounding area than the current use. An example of this would be a market exists on the property and the owner wishes to sell it and the buyer wants to establish a doctor's office in the building. Assuming the doctor's office is open during normal business hours and has adequate parking, the BZA would likely grant such a use. They would probably find the market was open 7 days a week up into the evening hours, which likely generated more traffic thus having a higher degree of impact on the surrounding area.

    Reverse this from an existing doctor's office to a change in use such as a market and the BZA would likely find this has a higher degree of impact thus denying the request.

  4. Special Exception Uses.
    The previous three types of appeals are driven more by an applicant's choice to request a hearing before the BZA to obtain a zoning permit.

    There are certain uses within the Zoning Code that can only be approved by the BZA. These are referred to as Special Exceptions. Several special exception uses, which are considered highly impactive, can only be considered by the BZA after a resolution has been approved by the Metropolitan Council.

    Special exception uses have general conditions that apply to all applications. The general conditions are broad in nature and drive the applicant to demonstrate compatibility with the surrounding area. The general provisions also give the BZA the ability to place additional conditions on an applicant to better ensure compatibility with the surrounding area such as limiting hours of operation, etc.

    For a particular use, each application has specific conditions that must be addressed. These can be setbacks other than those normally required by the Code, increased landscaping standards, and etc.

    Special exception uses are difficult for the BZA to deny when an applicant sufficiently addresses methods to offset impact under the general conditions or demonstrates the impact will be negligible if the applicant also demonstrates compliance with the specific conditions.

    Should there be opposition to a special exception case, it is incumbent, upon the opposition to demonstrate the applicant doesn't meet a specific condition or the applicant must offer compelling evidence that a general condition is not being met. For this evidence to stand a court test, it most likely will have to be expert in nature and not hearsay. Remember, an applicant is entitled to apply for the permit under the Zoning Code and when he has demonstrated compliance with the applicable conditions, he should be entitled to the permit since the use is provided for under the Zoning Code. The general and specific conditions are identified in Section 17.16.140 - 17.16.230 of the Metropolitan Zoning Ordinance.

  5. Public Notification of the Hearing.
    Prior to the public hearing, the following occurs: (1)Notices are mailed to surrounding property owners within 300 feet of the property, (2) Signs are posted on the property notifying the public of the hearing date, and (3) A legal advertisement is placed in the Tennessean on Saturday, 26 days before the public hearing.

    The BZA staff encourages applicants to make contact with affected neighbors prior to the hearing to inform them of their request before the BZA. This gives the applicant an opportunity to address any neighbors' concerns prior to the public hearing. This is not a requirement!

  6. Hearing.
    At the public hearing, the applicant will be provided an opportunity to present their case to the BZA. After the appellant has presented their case, if there is opposition, the opposition will be permitted to speak. After the opposition has completed their presentation, the appellant will be given a period for rebuttal.

    The public hearing will then be closed and the BZA will vote.

    To grant or deny any application there must be four concurring votes. If there is a split vote, the case stays open for thirty days. During the thirty day period a member can change their vote at a public hearing. If this does not occur and five or more members heard the case it is automatically denied because it did not carry four votes. If less than five members heard the case it is re-advertised and reset for a new public hearing.

    After the case is heard, the applicant or any other aggrieved party can petition the BZA for rehearing or reconsideration within sixty days of the order entry. Within the same sixty day period, suit can be filed against the BZA challenging their findings.

    Other information:

    Additional information reguarding the BZA and their powers and limitations can be found in Chapter 17.40 of the Zoning Code.