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 

05/02/2017
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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.1If 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 offpremises 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 offpremises 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