Where’s grandfather… What’s EN… Where’s proper notice?

Where’s grandfather… What’s EN… Where’s proper notice?

By Steve Hunley
Recode Knoxville will be voted on Tuesday, July 30 at 6:00 p.m. in the Main Assembly Room of the City-County Building. This will be the second and final vote on the text of Recode which is now at 410 pages in Recode Draft 5.5. Tomorrow’s meeting will also see the first of two votes on the Recode Map that shows zoning changes. Even though the Recode product is comprised of these two pieces, the text and the map, the administration decided to present these to city council for separate votes. This is another in a series of very questionable decisions to keep Recode as confusing and muddled as possible.

Why does the planning commission use the description “Recode Draft 5.5?” Really, Recode is on Draft 10 at the least. That doesn’t sound as good as Draft 5.5 does it? Draft 10 would show how flawed the Recode process has been. They say not to worry though as it is a “living document.”

In the second city council workshop on Recode Holston Hills resident Michael Stinson spoke to city council and the mayor about property rights. Stinson asked a question which caused discomfort to city council, the mayor, and the city law department. Stinson asked, “Will residences and businesses have protection from Recode if their property is zoned into a non-conforming use?”

While this was a simple question it created an intense discussion with conflicting responses from the city law department, council, and the mayor. Stinson asked where the Grandfather Clause was in Recode. Councilmember Lauren Rider said, “‘Grandfather’ is not a legal term, it is a layman’s term.” Yet “grandfather” is cited 14 times in Tennessee Code Annotated. Knoxville City attorney Christina Magrans-Tillery spoke of state law that pertained to Recode and said, “What we have done is use our local terminology to make it more user friendly and readable.” Say what?

Councilmember and local attorney Marshall Stair read what he thought would shut down the grandfather discussion with Recode Draft 5 Section 17.1 paragraph two:

“A nonconforming building, structure or use of land lawfully existing at the time of the adoption or amendment of this ordinance may be continued and maintained as provided in this article; provided, however, that nothing herein may be construed to authorize the continuation of any illegal or nonconforming use which was illegal prior to the adoption of this ordinance.”

Do you consider that “more user friendly and readable?”

After much discussion Councilmember Stair told council even he was confused by Sections 17.1 and 17.2 and Stair made a motion that 17.1 and 17.2  be revised by the planning commission. Mayor Rogero said, “We don’t need a vote on that…okay…let’s have a motion that we come up with the appropriate language,” and after a proper second to the motion it was passed unanimously by council. Why was Mayor Rogero so adamant that the grandfather clause not be added?

So what did council and the planning commission do with the requested grandfather clause? Nothing. They simply copied and pasted the current Tennessee state law on non-conforming use, which offers no protection to the property owners of Knoxville because state law dictates that local zoning code trumps state law on zoning. If that is not confusing enough, on the city website there is this new statement, “In any case, no owner in the city will be forced to change the use of his or her property. All current uses will be ‘grandfathered,’ or allowed to continue, unless the use is abandoned and the property is not actively marketed for 24 months.”

Why in the world will city council and the mayor not put that statement in the Recode ordinance? They put it on their website where it has no legal meaning but they refuse to put it in Recode. Is it because they plan to change the “living document” of Recode later to force all property uses to conform to Recode? How naive do they think the people of Knoxville are?

In the first vote on the text of Recode on July 16 a threatened lawsuit from Sequoyah Hills caused city council to remove Accessory Dwelling Units from the zone EN which is Established Neighborhood. Since not all neighborhoods may know about this zoning classification this could be a due process or notice violation. City council could have abandoned the Accessory Dwelling Units for all neighborhoods but they chose a way to pick and choose which neighborhoods will be spared. This could likely result in lawsuits the taxpayers will have to fund.

Many of you reading this may still not know what Recode Knoxville is. If so, you are in the majority. In a recent radio interview on the WETR 92.3 FM’s Knoxville Morning News with Elaine Davis, former four-term Knoxville City Mayor Victor Ashe estimated that 80% of the people in Knoxville did not know anything about the Recode rezoning process that will change the land and property use of for 73,000 parcels in the city of Knoxville affecting 50,000 property owners. Another guest on the show, who is a local real estate expert, has estimated that figure to be 95% of the people of Knoxville do not know what Recode is.

Do you know what Recode Knoxville is?  This is the core issue with Recode. Has proper public notice been followed throughout the Recode process? Incredibly, the city council actually passed Ordinance O-187-2018 last December that stated they did not have to notify any property owner about Recode. Evidently this was so egregious that Tennessee State Representative Martin Daniel has multiple bills ready in the next state legislative session to repeal O-187-2018 at the state level. Daniel said in a recent radio interview on Knoxville Morning News with Elaine Davis that this kind of city government overreach should never occur again.

Recode is a matter of trust. The mayor and city council have asked you to trust them. Should you? We are having record real estate growth in the city of Knoxville with our current zoning code which has sixty years of case law to protect your property rights.

What is the real reason for Recode? The Focus will keep searching until we find that reason. Call your city council member and ask them, “Why do we need Recode?” Please let us know what you learn.

 

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