Capitol Notes

Capitol Notes | Peggy Sue, the Beagle Hound

You will be howling like a hound dog with a sore tail. —The Boss in All the Kings Men by Robert Penn Warren.

Tennessee Constitution, Article VI, Section 6 Section 8

Judges and Attorneys for the State may be removed from office by a concurrent vote of both Houses of the General Assembly, each House voting separately, but two-thirds of the members to which each House may be entitled must concur in such vote….

Howling Lawyers

Our system of government based on a separation of powers among the three separate branches can be a yawner chapter in high school government classes. On February 24, 2021, State Representative Tim Rudd (R) of Murfreesboro filed House Resolution 23 (HR 23) to set in motion the process of removing Davidson County Chancellor Ellen Hobbs Lyle from office. Representative Rudd (age 50) is a two-term House member from Rutherford County who serves as Chair of the House Elections and Campaign Finance Subcommittee.

As the pandemic ravaged summer of 2020, a state case was filed challenging state election officials’ positions on access to absentee ballots during Governor Bill Lee’s proclaimed state of emergency. Soon, Chancellor Lyle heard the case in a virtual setting. She ruled that the state’s position that fear of coronavirus infection was not a sufficient reason to request an absentee ballot presented an unreasonable burden on the fundamental right to vote. Legal skirmishing ensued, and an appeal was taken to the Tennessee Supreme Court. The Supreme Court vacated and remanded portions of the Chancellor’s order, but the absentee votes cast for the August election were permitted to be counted and the process was allowed in the November election.

In the background, Representative Rudd was distressed that bills expanding access to absentee voting had failed in the General Assembly during the 2020 session. Every major association of lawyers in the state howled, rather than yawned, in their opposition to HR 23 as a breach of the concept of an independent and separate judicial branch. A special wag of the tail to the lawyers who took the time to appear on March 9, 2021, before the House Civil Justice Subcommittee and offer testimony on behalf of an independent judiciary and Chancellor Lyle. They are Celeste Herbert of Knoxville, Bob Boston of Nashville, and Joe Riley of Ridgely. The subcommittee heard the howls and defeated HR 23.

Schedule Notes

The General Assembly has opened the throttle and is fully engaged with a regular schedule of thick calendars before subcommittees and committees. Both the Senate and the House have gone to floor sessions late on Monday afternoons and early on Thursday mornings. Soon, they will begin to wind down the session with floor sessions every day.

Calendar Notes

1. Make an appointment for your Covid-19 vaccination. All good dogs get a rabies shot every year. Our humans need to do so for Covid-19. 2. May 1 is officially Law Day, and this year’s theme is Advancing the Rule of Law Now. Celebrate with us at our Law Day lunch, safely scheduled for Tuesday, October 12. 3. The State and the NBA will observe the Memorial Day holiday on Monday, May 31. 4. Looking ahead to 2022, judicial elections are Thursday, August 4, 2022, and for those counties holding primary elections, those are Tuesday, May 2, 2022. n

PEGGY SUE is fond of the classic 1957 Buddy Holly song. When hunting legislative news or biscuits, she is hard to contact.

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Tall & Skinny: Tennessee Horizontal Property Regime and Its Use in Redeveloping Nashville Neighborhoods

Nashville continues to enjoy its position as the “It City” with meteoric growth seen across the board. Businesses and people alike are clamoring to call Music City home. Nowhere is the city’s impressive development more evident than in its many residential neighborhoods. From 12 South to Germantown to East Nashville, urban areas across the city that were once undesirable are now highly appealing neighborhoods for millennials, families, and retirees alike. Changes in population density, socioeconomic status, and neighborhood dynamics have created a myriad of legal woes in the real estate arena.

One such issue is the horizontal property regime (HPR). HPR is a creature better known to native Nashvillians as the “tall and skinny.” The Tennessee Horizontal Property Act was first enacted in 1963 and has been amended several times since then. The HPA is an incredibly complex, and in part, outdated legal document. Interpreting the law for HPR’s under Tennessee’s HPA correctly in 2021 requires an experienced legal hand to drive the process.

A Phenomenon Driven by Zoning and Demand

The tall and skinny is rampant in many of Nashville’s oldest neighborhoods, previously known for modest (sometimes neglected) single family dwellings. Now, the landscape of these beloved neighborhoods is occupied by two separate, gleaming, and highly efficient homes looming large and literally casting shadows on the older homes. It is often the case that existing zoning permits allow for these two separate dwellings which in turn must be built tall and skinny to fit on the property. These zoning permitting and policies were put into place to allow for the construction of duplexes; however, in today’s Nashville, it’s far more common to see two distinct houses occupying a single lot. In order to further discuss these zoning policies, you have to look at what traditionally was considered in planned subdivisions in Nashville.

In order to build a traditional subdivision, the recording of a “plat” is typically required for any parcel less than five acres. In the world of real estate development, plats are essentially maps of properties, usually drawn as construction-oriented blueprints. In order to record a plat, the local zoning authority must allow the land to be subdivided. Part of this process requires a public hearing—and this is where things can become a little complicated for real estate entrepreneurs. These public hearings allow the

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property owner the opportunity to present a vision for the property and the benefits a plat will offer to the community and to the city. On the other hand, a public hearing also allows neighbors the opportunity to express apprehensions and voice suggestions. A property owner should prepare to address concerns about a subdivision blocking views, decreasing property values, and impacting quality of life for the existing residents.

At this point, the process for building a subdivision can become time-consuming and cumbersome, which can be somewhat relieved by a horizontal property regime. A horizontal property regime is an effective legal way to bypass potentially problematic public hearings that subdividing some properties may require. In Nashville, where a property is zoned for two family, a horizontal property regime may allow a property owner to build two new houses on a parcel that previously was used for a single home.

Establishing a HPR

In order to establish a horizontal property regime, the first step is draft a master deed. An attorney must attach a certification confirming that it adheres to the relevant Tennessee statute. In HPRs, homes in the project have a tax bill that is apportioned between them, so it is very important to establish clearly the boundaries between the yards of the structures. For that reason, the attorney will need to attach a diagram of the property that clearly outlines all of the following: • The parts of the property that are shared by the two proposed homes. This would normally include things like sidewalks. • The elements of the property that are “limited common,” such as yards. • The parts of the property that are private elements.

An HOA for Two

HPRs require some form of collective administration, including bylaws. For this reason, most HPRs include a homeowner’s association. Although an incorporated association may seem like a good idea for a subdivision containing dozens or hundreds of separate properties, many consider this requirement unusual for the purpose of administering a subdivision containing only two properties. The homeowner’s association should define the legal obligations and rights of each party. Additionally, it should give legal recourse to each respective party in the event that the other party fails to comply with the rules of the neighborhood. However, many of the bylaws for these associations fail to contemplate the common situation of a dispute between the two property owners, often culminating in deadlock.

Troubleshooting

Property owners and developers should meet with the local zoning authority prior to forming the HPR. Bring all relevant documentation, a copy of the layout of the lot, and the footprint of the structure(s) to be built. Meeting with a zoning official may prevent the possibility of the rejection of the issuance of a building permit. In some situations, two structures cannot be built because of setback, density, or other building code requirements. Knowing about possible pitfalls or limitations that cannot be overcome are key to being successful in navigating HPRs under the Tennessee HPA. n

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Endnotes

1 See Subdivision Regulations of the Metropolitan GovernMent of nashville

and davidson County, Chapter 2, part 3a.

2 See tennessee Code annotation § 66-27-103.

3 See tennessee Code annotation § 66-27-112.

4 20 C.F.R. § 655.735.

JOHN COBB ROCHFORD, a graduate of Vanderbilt Law School, operates Rochford Law & Real Estate Title in Nashville. John has been practicing law in Nashville for 23 years.