Metropolitan Government of Nashville And Davidson County, Tennessee v. Board of Zoning Appeals Of Nashville And Davidson County, Tennessee

05/02/2017

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
April 11, 2017 Session

METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON
COUNTY, TENNESSEE V. BOARD OF ZONING APPEALS OF
NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, ET AL.

Appeal from the Chancery Court for Davidson County
No. 12-910-II Carol L. McCoy, Chancellor

No. M2016-01732-COA-R3-CV

A billboard company and the owners of the property upon which two billboards sit (“the
defendants”) appeal the decision of the trial court holding that the board of zoning
appeals erred in issuing building permits to the defendants to allow them to replace static
display billboards with digital display billboards. Because we agree with the trial court’s
conclusion that the ordinance at issue is a lighting regulation, not a zoning regulation, and
that Tenn. Code Ann. § 13-7-208 therefore does not apply, we affirm the trial court’s
decision.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed

ANDY D. BENNETT, J., delivered the opinion of the Court, in which RICHARD H. DINKINS
and JOHN W. MCCLARTY, JJ., joined.

Garrett E. Asher, Nashville, Tennessee, for the appellants, CBS Outdoor, Inc., Felix Z.
Wilson II Revocable Living Trust, and Equitable Trust Company.

Lora Barkenbus Fox and Catherine J. Pham, Nashville, Tennessee, for the appellee,
Metropolitan Government of Nashville and Davidson County, Tennessee.

OPINION

FACTUAL AND PROCEDURAL BACKGROUND

In March 2012, CBS Outdoor, Inc. (“CBS”) applied to the Department of Codes
and Building Safety (“the Department”) of the Metropolitan Government of Nashville
and Davidson County (“Metro”) for two building permits to replace existing static
display billboards with digital display billboards. The two billboards are located on
properties owned by the Felix Z. Wilson II Revocable Trust and the Equitable Trust
Company (“the Property Owners”). One of the properties is located at 2730 Locust
Street and is zoned IWD (Industrial, Warehousing/Distribution). The other property is at
700 Clinton Street and is zoned CF/UZO (Commercial, Core Frame/Urban Zoning
Overlay).

The Department denied the permits, and CBS appealed to the Board of Zoning
Appeals (“BZA”), which voted to issue both permits. Metro filed a petition for writ of
certiorari in chancery court seeking a review of the BZA orders, and the chancery court
dismissed the petition for lack of standing. This Court reversed the chancery court’s
decision on standing, and the Supreme Court affirmed. See Metro. Gov’t of Nashville &
Davidson Cnty. v. Bd. of Zoning Appeals of Nashville & Davidson Cnty., 477 S.W.3d
750, 753 (Tenn. 2015). The matter was then remanded to the chancery court for a ruling.

On remand, Metro argued that the BZA permits violated a Metro ordinance
requiring 2,000 feet between digital billboards and a set distance between digital
billboards and residential property. CBS did not dispute that the proposed digital
billboards failed to comply with the Metro ordinance, but asserted that the proposed
billboards qualified as a nonconforming use protected by the grandfather clause in Tenn.
Code Ann. § 13-7-208. The trial court determined that the BZA “erred in issuing permits
to CBS to allow conversion of its static billboards in violation of the distance
requirements in the Metro Code.” CBS and the Property Owners appealed.

STANDARD OF REVIEW

Review of a decision of a local board of zoning appeals is by common law writ of
certiorari. Hoover, Inc. v. Metro. Bd. of Zoning Appeals for Davidson Cnty., 955 S.W.2d
52, 54 (Tenn. Ct. App. 1997). A reviewing court may grant relief only when the board,
exercising judicial functions, has exceeded its jurisdiction or acted illegally, arbitrarily, or
fraudulently. Tenn. Code Ann. § 27-8-101; McCallen v. City of Memphis, 786 S.W.2d
633, 638 (Tenn. 1990). The scope of review by the appellate courts is no broader than
that of the chancery court in these cases with respect to evidence presented before the
board. Watts v. Civil Serv. Bd., 606 S.W.2d 274, 277 (Tenn. 1980).

In this case, the facts are not in dispute. The trial court (like the BZA) applied the
Metro ordinance and pertinent statute, Tenn. Code Ann. § 13-7-208, to the facts before it.
Application of a statute or ordinance to the facts presents a question of law. Sanifill of
Tenn., Inc. v. Tenn. Solid Waste Disposal Control Bd., 907 S.W.2d 807, 810 (Tenn.
1995). As to issues of law, our review is de novo with no presumption of correctness.
TENN. R. APP. P. 13(d); Whaley v. Perkins, 197 S.W.3d 665, 670 (Tenn. 2006).

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 ANALYSIS

The dispositive issue here is whether the grandfather clause in Tenn. Code Ann.
§ 13-7-208 applies. To answer this question, we must determine whether the ordinance at
issue qualifies as a zoning provision or a safety provision.1 If the ordinance is a zoning
ordinance, the grandfather clause may apply; if it is a safety ordinance, the grandfather
clause will not come into play. Metro argues that the ordinance contains lighting
restrictions, not zoning changes.

The ordinance at issue here provided, in pertinent part, as follows:

Prohibited signs.
It is unlawful to erect, cause to be erected, maintain or cause to be
maintained, any sign not expressly authorized by, or exempted from, this
title. Any prohibited sign(s) may be removed by the zoning administrator
or his designee after notice to the property owner or occupant to remove
such sign(s) within three days. The following signs are expressly
prohibited:
....
G.
....
2. Signs with any copy, graphics, or digital displays that change messages
by electronic or mechanical means, other than tri-face billboards, shall not
be permitted in the CA, CS, CF, CC, SCR, IWD, IR and IG districts unless
the following distance requirements are satisfied, based upon the overall
height of the sign:
a. Signs four feet or less in height shall not be less than one hundred feet
from any agriculturally or residentially-zoned property.
b. Each additional foot in height, or portion thereof, above four feet shall
be setback an additional twenty-five feet from any agriculturally or
residentially-zoned property. For example, a sign between five and six feet
in height shall not be less than one hundred fifty feet from any
agriculturally or residentially-zoned property.
3. Sign display areas with varying light illumination and/or intensity,
blinking, bursting, dissolving, distorting, fading, flashing, oscillating,
rotating, scrolling, sequencing, shimmering, sparkling, streaming, traveling,
tracing, twinkling, simulated movement, or convey the illusion of
movement.

1
CBS also asserts that Metro waived its argument that the ordinance is a lighting provision because it did
not raise the issue before the BZA. We decline to consider this issue in light of the fact that CBS did not
raise it at the trial level. See Joyce v. Collins, No. E2005-01177-COA-R3-CV, 2006 WL 359757, at *6
(Tenn. Ct. App. Feb. 16, 2006) (stating that issue “cannot be raised for the first time on appeal”).
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 4. Free-standing and wall-mounted digital display billboards, including the
conversion of existing billboards to digital billboards, less than two
thousand feet apart. The spacing distance shall be measured along the
roadway that the billboard is located and shall be measured from billboard
to billboard regardless of the side of the roadway on which the billboard is
located, the billboard’s orientation on the roadway or the public street
classification.

Metro Code § 17.32.050. Subsections (2) and (4) of Metro Code § 17.32.050.G.2. (“the
Ordinance”) contain the restrictions at issue in this case. CBS acknowledges that its
proposed billboards do not comply with these distance requirements.

CBS takes the position that the Ordinance is a zoning ordinance subject to the
protections of the grandfather clause of Tenn. Code Ann. § 13-7-208.2 A grandfather

2
The version of Tenn. Code Ann. § 13-7-208 in effect in 2012 provided, in pertinent part:

(b)(1) 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
restrictions 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.
(2) When the use permitted to continue to expand, or to be rebuilt pursuant to any
subsection of this section is an off-premises sign, such use shall not preclude any new or
additional conforming use or structure on the property on which the sign structure is
located or on any adjacent property under the same ownership; provided, however, that
any such new or additional use or structure does not result in any violations of the
applicable zoning restrictions other than those nonconformities associated with the off-
premises sign as allowed under this subdivision (b)(2).
(c) Industrial, commercial or other business establishments in operation and permitted to
operate under zoning regulations or exceptions thereto in effect immediately preceding a
change in zoning shall be allowed to expand operations and construct additional facilities
which involve an actual continuance and expansion of the activities of the industry or
business which were permitted and being conducted prior to the change in zoning;
provided, that there is a reasonable amount of space for such expansion on the property
owned by such industry or business situated within the area which is affected by the
change in zoning, so as to avoid nuisances to adjoining landowners. No building permit
or like permission for construction or landscaping shall be denied to an industry or
business seeking to expand and continue activities conducted by that industry or business
which were permitted prior to the change in zoning; provided, that there is a reasonable
amount of space for such expansion on the property owned by such industry or business
situated within the area which is affected by the change in zoning, so as to avoid
nuisances to adjoining landowners.

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clause is “[a] provision that creates an exemption from the law’s effect for something that
existed before the law’s effective date.” BLACK’S LAW DICTIONARY (10th ed. 2014); see
also Smith Cnty. Reg’l Planning Comm’n v. Hiwassee Vill. Mobile Home Park, LLC, 304
S.W.3d 302, 310 (Tenn. 2010). A grandfather clause must be construed strictly against
the party who seeks its protection. Hiwassee Vill., 304 S.W.3d at 310; Outdoor W. of
Tenn., Inc. v. City of Johnson City, 39 S.W.3d 131, 135 (Tenn. Ct. App. 2000). Thus, in
this case, CBS had the burden of proving that its signs constituted a pre-existing
nonconforming use that qualified for the protection of Tenn. Code Ann. § 13-7-208. See
Outdoor W., 39 S.W.3d at 135.

To invoke the protections of Tenn. Code Ann. § 13-7-208, a plaintiff must make
two threshold showings, the first of which is as follows: “that there has been a change in
zoning (either adoption of zoning where none existed previously, or an alteration in
zoning restrictions).”3 Id. (citing Rives v. City of Clarksville, 618 S.W.2d 502, 505
(Tenn. Ct. App. 1981)). Thus, the proposed ordinance must be a zoning measure for
Tenn. Code Ann. § 13-7-208 to apply.

There are two key Supreme Court cases that have addressed whether an ordinance
is a zoning ordinance. In Cherokee Country Club, Inc. v. City of Knoxville, 152 S.W.3d
466, 473 (Tenn. 2004), our Supreme Court adopted a “substantial effect” test: “we
believe that the determination of whether a regulation or an ordinance ‘substantially
affects’ the property owners’ use of land is a well-reasoned and persuasive approach.”
Using this test, the Court determined that an ordinance prohibiting the issuance of
demolition permits for property being considered for designation as part of an historical
overlay district was a zoning ordinance because “the broad and permanent restrictions in
this ordinance substantially affected [the property owner’s] use of its property and the
manner in which [the property owner] could effectuate any uses that remained
permissible.” Cherokee, 152 S.W.3d at 474.

The other important Supreme Court case on the “substantial effect” test is SNPCO,
Inc. v. City of Jefferson City, 363 S.W.3d 467 (Tenn. 2012). That case presented the
issue of whether an ordinance banning the sale of fireworks within the city limits was a
zoning ordinance entitled to the protections of Tenn. Code Ann. § 13-7-208 or a
regulation enacted pursuant to the city’s police powers. SNPCO, 363 S.W.3d at 470.
The court refined the “substantial effect” analysis:

[The “substantial effects” test] is actually a two-part test that examines both
the terms and the effects of the challenged ordinance. The first step
requires courts to review the terms of the challenged ordinance and the

3
The second required showing is “that the use to which they put their land was permitted prior to the
zoning change.” Outdoor W., 39 S.W.3d at 135 (citing Rives, 618 S.W.2d at 505). This requirement is
not at issue in the present case.
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 municipality’s comprehensive zoning plan to determine whether the
ordinance is so closely related to the zoning plan that it can be fairly
characterized as tantamount to zoning. The second step requires the courts
to determine whether the challenged ordinance substantially affects the use
of the property that is the subject of the litigation. Both parts of the test
must be satisfied before a challenged ordinance may be held to be
tantamount to zoning.

Id. at 478. Applying this test to the facts at hand, the Court in SNPCA noted that the
ordinance “[did] not refer to nor [did] its operation depend upon the City’s zoning plan.”
Id. The ordinance did not “refer to land, zones, buildings, lot lines, or any other terms
and concepts customarily associated with comprehensive zoning plans.” Id. The Court
concluded that the ordinance “reflects the exercise of the City’s traditional, general police
power granted in Tenn. Code Ann. § 6-2-201(22)” and “falls squarely within the general
police powers traditionally exercised by government.” Id. at 478-79. Because it
determined that the ordinance was not “tantamount to a zoning ordinance,” the Court did
not apply the second part of the “substantial effect” test. Id. at 479.

In arguing that the Ordinance contains non-zoning lighting restrictions, Metro
relies upon Metropolitan Government of Nashville & Davidson County v. Board of
Zoning Appeals of Nashville & Davidson County, No. M2013-00970-COA-R3-CV, 2014
WL 5147757 (Tenn. Ct. App. Oct. 13, 2014) (“Lamar”). In the Lamar case, Lamar
Tennessee, LLC (“Lamar”), owned a standard billboard in an area that was rezoned in
2001 from CS (Commercial Service) to MUL (Mixed Use Limited), which meant that
billboards were no longer permitted in the area. Lamar’s billboard was protected by the
grandfather clause in Tenn. Code Ann. § 13-7-208. Metro. Gov’t, 2014 WL 5147757, at
*1. In 2008, lighting amendments to the Metro Code prohibited LED message boards
and digital display signs in MUL districts. Id. A few years later, Lamar applied for a
permit to replace its standard billboard with a digital billboard. Id. The BZA ultimately
found that Lamar should be granted a permit, and Metro filed a petition for writ of
certiorari to the chancery court, which reversed the decision of the BZA. Id.

On appeal, this Court conducted a thorough analysis to determine whether the
ordinance at issue, Metro Code § 17.32.050.H.2, was a zoning regulation or a non-zoning
safety restriction. Id. at *3-7. Because the ordinance at issue in the Lamar case appears
in the same title, chapter, and part of the Metro Code as the Ordinance, the Court’s
analysis is relevant in the present case:

Title 17 of the Metropolitan Code of Ordinances contains Metro’s
zoning code. Code § 17.04.010B states the purpose of the code:

Purpose and Authority. This zoning code is enacted pursuant to
Articles 2 and 20 of the Charter of the Metropolitan Government of

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 Nashville and Davidson County and Title 13 of the Tennessee Code
Annotated. This title is designed to implement the goals and
objectives of Concept 2010: A General Plan for Nashville and
Davidson County and its associated subarea and functional plans.
Created by this title are a diverse range of zoning districts which
establish appropriate land uses and associated standards of
development needed to implement the land use policies of the General
Plan. In conjunction with this title an official zoning map assigns an
appropriate zoning classification to all properties to which this title is
applicable. . . . This title further establishes development standards
which are designed to protect the value and integrity of neighboring
properties, enhance the general character and appearance of the
community, reinforce the central business district, and provide for a
reasonable balance between efficient utilization of land, protection of
this community’s environmental resources and assuring the
operational integrity of streets. . . .

(Ord. 96-555 § 1.1, 1997).

Zoning districts are established at Code § 17.08.010 and include
agricultural, residential, specific plan, mixed use, office, commercial,
downtown code, shopping center, and industrial districts; the nature and
character of each district is described at § 17.08.020.

Chapter 17.32 of the Code is entitled “Sign Regulations”; the
purpose and intent of this chapter is set forth at § 17.32.010 and, with
specific reference to safety, states:

Safety. Construct and display signs in a manner that allows
pedestrians and motorists to identify, interpret and respond in an
efficient and discerning manner to the following:

1. Information related to public traffic control, directions and
conditions;
2. Movement of all other pedestrians and vehicles that impact traffic
on a given travelway; and
3. Information other than public traffic related when displayed in a
manner which is clear, concise and noncompeting with public
traffic information.

Metropolitan Code § 17.32.010A. Metropolitan Code § 17.32.020A
provides that the sign regulations “are intended to complement the various
codes and ordinances of the metropolitan government” and that

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 “[w]henever there is inconsistency between these sign regulations and other
regulations of the metropolitan government, the more stringent shall
apply.”

Metropolitan Code § 17.32.030, entitled “Rationale, definition,
system for regulation and overall use,” provides in pertinent part:

C. System for Regulation. Regulation of signs is based on size,
location, method of attachment, duration and design/lighting. The
following distinctions apply to the regulation of signs:
1. Regulations based on size;
2. Regulation based on location;
3. Regulation based on method of attachment:
a. On-premises ground sign,
b. On-premises building sign;
4. Regulation based on duration:
a. On-premises temporary sign,
b. On-premises permanent sign;
5. Regulation based on design/method of lighting:
a. Illluminated sign,
b. Nonilluminated sign.

Regulations apply to signs with respect to specific permissiveness and
provisions in each use district or group of related districts.
Regulations are generally more restrictive in residential districts than
in commercial districts.

Id. at *5-6 (footnotes omitted).

Having described the relevant zoning plan, the Lamar court proceeded to consider
whether the ordinance prohibiting LED message boards and digital display signs was a
zoning ordinance. The court stated:

[I]t is apparent that the signage regulation and related lighting provisions
contained in Chapter 17.32 are of a character and purpose different than
that reflected in the statement of purpose of the zoning code; they do not
reflect the land use policy considerations and objectives inherent in the
development of the comprehensive zoning code. See Code § 17.04.010B.
While allowing, prohibiting, or otherwise regulating particular signs in
specified districts is a component of the overall zoning ordinance, Chapter
17.32 does not “depend[] entirely upon the zoning districts established by
the Metropolitan Zoning Ordinance[,”] as argued by Lamar. Rather,
Chapter 17.32 functions primarily to complement the uses of property as

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 reflected in the zoning districts established at Code § 17.08.010. More
importantly, the signage regulations are reflective of the city’s powers and
responsibilities to provide for the public safety. By their nature specific
signage regulations may be appropriate in residential zones, different
regulations in commercial zones, and different regulations in industrial
zones; the regulations, however, do not impair the use of the property upon
which the sign is located. The regulations operate as a means to
accomplish specific objectives in the zoning code, and are not “tantamount
to zoning.”

We are also of the opinion that § 17.32.050H2 does not substantially
affect Lamar’s use of the billboard. In its brief Lamar argues that “the off-
premises sign industry is tremendously competitive and dependent upon
technological innovation” and that incorporation of technological
improvements “is critically important [to] maintaining and reasonably
increasing viewership of the signs.” The question before us, however, is
whether the ordinance “substantially affects the use of the property,” not
whether the ordinance prevents Lamar from maximizing viewership of the
signs. Lamar has maintained a standard billboard on the property since
2000, with the use grandfathered in when the zoning was changed from CS
to MUL in 2006. Code § 17.32.050H2 was passed in 2008 and Lamar did
not apply to replace the existing billboard to a digital one until 2011.
Lamar is still able to use the billboard in the MUL zone as it was originally
constructed and to utilize digital billboards in other zones where allowed.

Id. at *6 (footnote omitted). Based upon this reasoning, the Lamar court concluded that
the ordinance was not a zoning regulation and that the grandfather clause set forth in
Tenn. Code Ann. § 13-7-208, therefore, did not apply. Id. at *7.

We find the reasoning in the Lamar case to be equally applicable to the present
case. The Ordinance, Metro Code § 17.32.050.G, does not allow digital signs in certain
districts based on the height of the signs and their distance from other signs and from
residential property. The Ordinance appears in the same chapter of the Metro Code as the
ordinance at issue in Lamar. As the court stated in Lamar, “Chapter 17.32 functions
primarily to complement the uses of property as reflected in the zoning districts
established at Code § 17.08.010,” and “the signage regulations are reflective of the city’s
powers and responsibilities to provide for the public safety.” Id. at *6. Thus, we find
that the Ordinance is not tantamount to zoning and should be considered a lighting
regulation, not a zoning regulation.4

4
CBS cites Metro Code § 17.32.150.B.16, an ordinance regulating brightness and surface illumination, as
well as hours of illumination, and argues that Metro Code § 17.32.050.G cannot be considered a lighting
regulation because Metro has “already included a specific lighting restriction to apply to digital signs in
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 CBS cites B.F. Nashville, Inc. v. City of Franklin, No. M2003-00180-COA-R3-
CV, 2005 WL 127082 (Tenn. Ct. App. Jan. 21, 2005), for the proposition that “when a
sign ordinance addresses size and distance, that ordinance is a ‘zoning restriction’ and
subject to the protections of the grandfather statute.” We disagree with this reading of the
B.F. Nashville case. B.F. Nashville, Inc. (“B.F.”) owned a Wendy’s restaurant with a
large free-standing sign. B.F. Nashville, 2005 WL 127082, at *1. After the city passed a
sign ordinance in 1995, the sign would have been prohibited without the protections of
Tenn. Code Ann. § 13-7-208. Id. In 1999, the Wendy’s sign was damaged in a storm;
several years later, B.F. decided to build a replacement sign in compliance with the new
wind resistance requirements. Id. The city sign codes administrator informed B.F. by
letter that, because the proposed sign did not comply with the city’s sign ordinance, its
reconstruction would not be allowed. Id. B.F. filed an action for declaratory judgment
that it had “a statutory right to reconstruct the subject sign regardless of the provisions of
the Franklin Zoning Ordinance.” Id. The chancery court granted the city’s motion to
dismiss without providing any statement of reasons. Id. at *2.

B.F.’s proposed sign did not conform to a provision of the city’s sign ordinance
limiting signs “located within 1,500 feet of the interstate to a height of 20 feet and that
allow only one freestanding sign per lot.” Id. at *3. (The code administrator’s letter also
referenced a section of the zoning ordinance regarding abandonment of a sign. Id.)
Applying the “substantial effect” test, the court determined that “an ordinance regulating
the number, location, and size of advertising signs on property used for commercial
purposes does substantially affect the property owner’s use of the property.” Id. at *13.
The court, therefore, held that the city’s sign ordinance was a zoning regulation and
subject to the grandfather clause in Tenn. Code Ann. § 13-7-208. Id.

The B.F. court’s analysis did not end there. Because B.F. intended to replace a
sign that had been “largely demolished,” the court determined that its reconstruction was
covered by Tenn. Code Ann. § 13-7-208(d), which allows a business in operation prior to
a zoning change “to destroy present facilities and reconstruct new facilities necessary to
the conduct of such industry or business subsequent to the zoning change.” Id. at *15;
Tenn. Code Ann. § 13-7-208(d). B.F. did not allege in its complaint that reconstruction
of the sign was necessary to the conduct of its business. Id. at *17. The court held:
“Although the protections of Tenn. Code Ann. § 13-7-208(d) apply generally to on-site
signs, B.F. was not entitled to a declaratory judgment that the statute gave it the right to
reconstruct its sign without regard to ordinances limiting nonconforming signs.” Id. at
*20.

the zoning code.” We reject this reasoning. The two ordinances regulate different issues, with Metro
Code § 17.32.050.G addressing the height and spacing of digital signs and Metro Code § 17.32.150.B.16
addressing the brightness of illuminated signs. Metro Code § 17.32.050.G.5 specifically provides that
“any digital billboards not in compliance with the applicable provisions of Section 17.32.150 are also
prohibited.”
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 As the trial court in the present case noted, the following language from the B.F.
Nashville case “clarifies that the landowner is not totally grandfathered from all local
regulation regarding the reconstruction of a billboard”:

While a complete prohibition on the reconstruction of the sign could
arguably contravene Tenn. Code Ann. § 13-7-208(d), merely requiring that
the reconstructed sign, or any other structure, comply with certain kinds of
requirements, e.g., building, safety, etc., would not necessarily conflict with
the statute. Hunter [v. Metro. Bd. of Zoning Appeals, No. M2002-00752-
COA-R3-CV, 2004 WL 315060, at *4-5 (Tenn. Ct. App. Feb. 17, 2004)]
(holding that reconstructed building must comply with current landscape
buffer requirements). The General Assembly has clarified this issue by a
recent amendment to Tenn. Code Ann. § 13-7-208 that added a new
subsection (i) that provides:
Notwithstanding the provisions of subsection (d), any structure rebuilt
on the site must conform to the provisions of the existing zoning
regulations as to setbacks, height, bulk, or requirements as to the
physical location of a structure upon the site, provided that this
subsection shall not apply to off-site signs.
2004 TENN. PUB. ACTS, ch. 775.

This amendment became effective after B.F. brought this action and
cannot be applied to resolve the issues in this appeal. Nonetheless, it makes
clear that the legislature did not intend that Tenn. Code Ann. § 13-7-208(d)
give landowners with non-conforming uses immunity from all local
regulation of reconstructed structures.

B.F. Nashville, 2005 WL 127082, at *16 (emphasis added).

We find the court’s language in B.F. Nashville to be consistent with the result in
the Lamar case, which is on point with the present case. The Ordinance is a lighting
restriction, not a zoning restriction and, therefore, is not covered by the grandfather
clause in Tenn. Code Ann. § 13-7-208.

CONCLUSION

The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against the appellants. Execution may issue if necessary.

________________________________
ANDY D. BENNETT, JUDGE

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