### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE February 3, 2

000 Session
CITY OF LEBA

NON, TENNE

SSEE v. RAYM

OND HARRIS Appeal from the Circuit Court for Wilson County No. 10543 Clara Byrd, Judge

No. M1999-01025-COA-R3-CV - Filed October 10, 2001

This case involves the zoning and sign ordinan ces of Leba

non, Tennessee.

Mr. Harris

had placed smalloutdoor insulated m etal storage bu

ildings at sever

al properties wit

hin the city

of Lebanon. The buildings had on the sides information advertising his company and a phone number to c

ontact him for information to buy

or rent one of the

se buildings. He w

as fined for viola

ti ons o f the City of Lebanon ordinance allowing only one principal building and its customary accessory building s on a lot and for violation of

the sign ordinan

ce. The circuit c

ourt reversed th

e city cour

t’s fines and held that the buildings were not principal buildings and that they were not portable signs. For the reasons below, we affirm the circuit court’s decision in part and reverse in part.

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

Affirmed in Part, Reversed in Part and Remanded
P ATRICIA J. C OTTRELL , J., delivered the opinion of the c ourt, in which W ILLI

AM C. K OCH , J R ., and W ILLI AM B. C AIN , JJ., joined. Peggy Williams, Lebanon, Tennessee, f or the appellant, City of Lebanon, Tennessee. Anthony E. Ha

gan, Leban

on, Tennessee, f

or the appellee,

Raymond Har

ris.
OPINION
Mr. Harris is i n the busin ess of sell ing and leasi ng insulate d metal out door utili ty/storage buildings. He placed these buildings on several properties in Lebanon, Te nnesse e with the permission of the owners/oc cupiers of the pr

operty. The

buildings at issue

in this case were located (1) on South Cumberl

and on a parcel o

ccupied by

Associates Capita

l, a lending institution, (2) on Sparta Pike, on property occupied by a truc k stop and restaurant k

now as Uncle

Pete’s Truck Stop, and(3) on West

Gay St reet, on a lot occ

upied by a r

esidential struct

ure. The building

s on South Cum berland and Sparta Pike had banners tied to them that said “FOR SALE OR RENT INSULATED

METAL BUILDI

NG” and listed the office and mobile telephone numbers of Mr.1 The city makes no such argument, and the language of the ordinances does not justi fy any such distinct

ion. 2 Harris. The building located on West Gay Stree t had painted on the building in stenciled letters “RENT OR BUY” and a telephone number.
On July 28, 1998, Mr. Harris was issued a single citation for two violations of the Lebanon City Code, chapter 2 §

14-207, allowing

only one prin

cip al buildi ng and its customary accessory buildings on a lot. T he citation was f or the buildings he had place on the Associates Capital and Uncle Pete’s lots. Then on August 24, 1998, Mr. Harris was issued a separate citation for violation of ordinance no. 98-1744 pertaining to illegal signs for the sign on the storage building situated on the residential lo

t on West Gay Str

eet.
Mr. Harris was convicted in City Court and fined $700, $350 for each citation. He appealed to Wilson County Circuit Court raising the issue of the constitutionality of the sign ordinance. The trial court found that the portable buildings did not violate the principal building zoning provision, andthat Mr. Harris had

not violat ed the sign o rdinance bec ause the bui ldings were not portabl e signs. T he court f

urther foun d that even i f the build ings could b e considere d portable s igns, the si gn ordinance was unconstitutionally vague and an illegal restraint of

trade. The city appeals. For the reasons below, w

e affirm in part a

nd reverse in pa

rt.
This is an appeal from a bench trial; therefore, our standard of review is governed by

Tenn. R. App. P. 13(d). Under Rule 13(d), wemust review the record de novo under the presumption that the findings of fact are correct “unless the prepondera

nce of the evide

nce is otherwise. ” Tenn. R. App. P. 13(d). No presu

mption of correc

tness attaches to

the trial court's conclusions of law. Hansel v. Hansel, 939 S.W.2d 110, 111 (Tenn. Ct. App. 1996).
Mr. Harris was cited

for violations of two zoning ordinances, one pertaining to the number andtypes of buildings allowed on a lot a

nd the other pertaining to the types of signs that may be displayed within the city limits. There was no material difference in the buildings or the advertising messages on them. The fact that the two citatio

ns for violation of

the zoning or use

ordinance related to placement on commercial property and the citation for violation of the sign ordinance related to placement

on a residential lot does not appear to be material to the type of violation charged. 1 What is material, howeve

r, is whether the p

ortable storag

e buildings,

with advertising, should

properly be considered

“buildings” or “

signs.” Mr. Har

ris was f i ned for violation of an ordinance prohibiting buildings in certain

circumstances and also fined for violation of an ordinance prohibiting signs of certain ty pes in certain ar

eas.
We must construe an or

dinance as a who

le, giving its wo

rds their natu

ral and o rdinary meaning. Lions Head Homeowners’ Ass’n v. Metropolitan Bd. of Zoning Appeals , 968 S.W.2d 296, 301 (Tenn. Ct. App. 1997). We also construe zoning ordinances using the same rules and principles used to construe statutes, and must resolve any ambiguity in favor of an owner’s unrestricted use of his or her property. Id .; Whittemore v. Brentwood Planning Com’n, City of Brentwood, 835 S.W.2d 11, 15-16 (Tenn. Ct. App. 1992).3

We begin with an exam

ination of both ordi

nances. First, the city has stated the purpose of its zoning ordinanc

es as: promoting the public health, safety, morals, con venien ce, order, prosperity, and general welfare of the community. They have been designed

to lessen congestionin the streets, to secure safety from fire, panic, and other da ngers, to provideadequate light and air, to prevent the overcrowding of land, to avoid und ue concentration of population, and to facilitate the adequate provision of transportation, water, sewerage, schools, parks, andother public requirements. . . . Advertising signs and billboards except those

specifically permitted shall be removed as a nonconforming use within ninety

(90) days f

rom th e date of adoption of the provisions of chapters 2 through 14 of this title. Lebanon City Code § 14-202.
In furtherance of

those purposes, the city has enacted various ordinances regulating land use. Among those is Lebanon City Code § 14-207, which Mr. Harris was charged with violating, which was des igne d to lim it t he n umb er of use s on a si ngle pie ce of pro pert y. It states, “Only one principal building and its customary accessory building s may hereafter be erected on any lot.” Add iti ona lly, the code deline ates the di fference betw een buildi ngs, princi pal buildi ngs andaccessory buildings as follows: “Building.” Any structure constructed or used for residence, business, industry, or other public or private purposes, or accessory thereto, including tents, l

unch wagons, dining cars, trailers, billboards, signs , and si milar structures whether stationary or moveable. (a) “Accessory

buildin g.” A subordinate buil ding, the use of w

hich is incidental to that o

f a principal build

ing on the same lot

. (b) “Principal building.” A building in which is conducted the p

rincipal use of the lot on which it is situated. In any residence district, any dwelling shall be deemed the principal building on any lot on which the same is situated. Carports and gara ges if pe rmanently attached to the building are deemed a part of the principal building. Lebanon City Code § 14-203(7).
The city interpr

ets this ordinance

as permitting only

one primary

use per lot and as limiting the structures thereon to oneprincipal building and customary

accessory

buildings. We ag

ree with that interpretation. Consequently, the city maintains that the storag e buildi ngs placed on the lots occupied by AssociatesCapital and Uncle Pete’s violate the ordinance because they ar e neither the one primary

building allowed nor a customary accessory building. Again, we agree, if the structures are properly

classified under

the ordinance a

s buildings.2 Mr. Harris a lso argues

that t he buildings

are merely an a

dvertising medium, a demonstr ative si gn. 4 The two lots in question a lready ea ch contain th

e one principal building permitted by the ordinance: one is a financial institution and the other is a truck stop and restaurant. Therefore, the only way Mr. Harris’s buildings would not be prohibited by the

ordinance is if they were customary accessory buildings to the principal use or buildings on the lots.
The ordinance de fines accessor y building a

s one which is subor

dinate and whose u

se is incidental to the use of the pr incipal bu ilding. The terms “accessory building” or “acc essory use” are often found in land use ordinances.
It is accepted zoning practice to allow certain accessory uses and structures on pr operty th at are related to the primary permitted uses. To this end, zoning ordinances generally provide that uses deemed “customarily incidental” to the main activit yma y be conduc

ted on the same pro

perty. The

purpose of acce

ssory use provisions is to permit uses that are necessary, expected or convenient in conjunction with the principal uses of the land.
P ATRICK R OHAN , Z ONING AND LAND U SE C ONTROLS § 40A.01 (1992).
The storage buildings at issue herein were not related to the principal building on each lot. They were not used for storage or for any purpose by the owners of the lots orthe businesses on the lots. Thus, there is really no question that their us e was not necessary, expedient, convenient, or incidental to the principal use of e ach lot: a financ ial institution and a

truck stop and res

taurant. They had no relationshi

p to the principal a

ctivity car

ried on on each lo

t. These empty

st orag e buildings were n

ot accessory

buildings.
In making its argu

me nt th at the storage b

uildings were no

t accessory

buildings, the cit

y characterizes them as “simply a shell placed on the property for the purpose of ad

vertising the sa

le or rental of these storage buildings.” 2 The city fur ther argues:

. . . this is simply a blatant attempt to place off-site advertising on this lot. There is nothing different betwe

en this storage building, which is not being used for storage, and putting a billboard on the property advertising Defenda nt’s place of business. .

. . This storage building is nothing more than a larg e sign being use

d to advertise the Defendant’s bus

iness.
We agree with the conclusion to be derived from this characterizat ion: these storage buil dings were not inciden

tal to the principa

l uses on the lots and

were, therefo

re, not accesso

ry building

s. The characterizat

ion, ho wever, raises another issue: do the storage buildings, or large advertising signs, fall within

the definition of those “buildings” which are prohibited by the particular ordinance which Mr. Ha rris was cha rged with vi olating?3 There are exceptions to this prohibiti on, and those exceptions were part of Mr. Harris’s argument that the sign ordinanc e is unconstitutio nal.

4 We do not consider the inclusion of “trail

er signs” i

n the defini

tion as incons

istent wi th the “eas

ily moveable” requirement or t

he conclusion t

hat the buil

dings at is sue are not portabl e. 5 The ordinance defin

es a “building”

as “[a]ny str

ucture cons tructed or used for residence, business, industry, or other public or private purposes, or accessory

thereto, including tents, lunch wagons, dining cars, tra il ers, bil lboards, signs, and similar structures whether stationary or moveable.” This definition wou ld se em to include the empty storage buildings placed solely for advertising purposes on the lots i n question. If they meet this definition, because they are not accessory to, and do not advertise, the businesses which are the principal use of the lots, the y would be prohibited.
This issue is complicate

d only by the fact

that the city

charged Mr. H

arris with violation of its sign ordinance

based on his place

ment of exactly

the same typ

e building on anot

her lot. In that citation, Mr. Harris was charged with placing a portable sign on a lot within the city limits. Lebanon City Code § 14-221 states that “[p]ortable signs are not permitted within the corporate limits of the City of Lebanon. . . .” 3 That ordin ance defines portable s igns as incl uding:

any commercial advertising sign or device, banner, counterbalance sign, trailer sign, or an y variation thereof, located on the ground or suspended, ea sily moveable, not permanently

attached thereto, and which is usually a two sided sign, and including any single or double surface painted or poster panel type sign, or any variations thereof which are temporary in nature.
The trial court made a specific finding

that t he storage buildings in question, or “outbuildings”

as the court described them, were not portable s igns. The co urt noted t hat althou gh the buildings could be moved by means of a trailer or other equipment, they were not something an individual could p ick up an d carry away . The trial court’s analysis comports with the ordinary definition of

the word portable, which is defined as “capable of being carried; easily or c

onveniently transported; light or manageable enough to be readily moved.” Webster’s Third New Inter national Dictionary

(1968). The ordinance itself defines portable signs as “easily moveable.” The evidence does not preponderat

e against the tr

ial court’s findin

gs that the stora

ge buildings ar

e not easily moved. 4 Thus, the trial court’s conclusion that the buildings are not “portable” within the meaning of the ordinance is affirmed. However, the definition of “building” in Lebanon Municipal Code includes signs and similar structures “whether stationary or moveable.” We find the storage building s in question to be includedin that d efinition. As the trial court stated, they

are capable of

being moved, with appro priate

equipment or personne l. Therefor e, we conclu de that the placement o f the storage buildings on lots already occupied by principal buildings and uses, when those structures or signs were not accessory to those principal uses, is prohibited by L ebanon City Code § 14-207. The trial court’s finding tha t the stora ge buildings are no t principal building

s does not preclud

e this holding.5 It is, t herefore, unne

cessary to addres s the consti tutionali ty of the or

dinance. 6 As explained above, the ordinance not only prohibits more than one principal building but also any structures which are not accessory to the principal building or use. Having affirmed the tri

al court’s finding

that the storage

build ings in ques tion are not portable signs within the meaning of thesign ordinance, we affirm the trial court’s dismissal of the citation against Mr. Harris for violation of that ordinance. 5

In summary, we affirm the trial court’s dismissal of the citation and fine for violationof the sign ordinance. We re

verse the trial court ’s holding that the placement of stor

age buildings i

n question did not violate Lebanon City Code § 14-207. We remand for further proc e edings, as nece ssa ry, on those citations and the fines therefor. The costs of this ap peal are taxed eq

ually to the Cit y of Le ban on, and to R aymo nd H arri s, f or w hic h ex ecut ion may i ssu e ifnece ssa ry.

___________________________________ PATRICIA J. COTTRELL, JUDGE