Can a Tennessee homeowners' association ban backyard beekeeping in its neighborhood?

Subject

Opinion No. 13-02, Homeowners' Association's Restrictive Covenants on Beekeeping, January 7, 2013

Plain-English summary

A state legislator asked whether Tennessee's beekeeping statute, which had been amended in 2011 to stop local governments from banning honeybee hives, also stopped a private homeowners' association from doing so by restrictive covenant. The Attorney General read the statute narrowly. By its terms, Tenn. Code Ann. § 44-15-124 prohibited only a "county, municipality, consolidated government, or other political subdivision" from adopting an ordinance or resolution banning compliant hives. A homeowners' association, the AG concluded, is a private contractual organization, not a political subdivision. The statute therefore did not invalidate an HOA covenant that prohibited beekeeping in the subdivision.

The opinion also rejected the idea that an existing beekeeper could rely on the statute's grandfather clause to defeat a later HOA ban. The grandfather language in § 44-15-124 protected hives that had been maintained in compliance with applicable zoning regulations as of June 10, 2011, against subsequent local zoning changes. It said nothing about private covenants. So an HOA could adopt and enforce a no-bees covenant against a beekeeper whose hives predated the act, exactly the way an HOA could enforce any other lawful restrictive covenant.

The AG distinguished the Pioneer Subdivision case, where a different statute (Tenn. Code Ann. §§ 13-24-101 to -104) had been written to override "any provision in any zoning law or ordinance in Tennessee to the contrary" in order to protect group homes for people with disabilities. Section 44-15-124 contains no such language. To the contrary, it expressly preserves zoning authority. The Tennessee Right to Farm Act, codified at Tenn. Code Ann. §§ 43-26-101 to -104 and including apiaries in its definition of "farm product," likewise creates only a rebuttable nuisance presumption and does not invalidate private covenants.

Currency note

This opinion was issued in 2013. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The beekeeping statute (Tenn. Code Ann. § 44-15-124), the Right to Farm Act (§§ 43-26-101 to -104), and the disability-housing statute referenced in the opinion (§§ 13-24-101 to -104) have all been subject to legislative attention in the years since. Anyone enforcing or challenging a no-bees covenant today should pull the current statute and check for amendments. The general framework, that a state statute restricting only counties and cities does not by itself override private contractual restrictions, would be the place to start.

Background and statutory framework

Tennessee's beekeeping protection law (Tenn. Code Ann. § 44-15-124) emerged from a broader effort in 2011 to protect honeybees against local ordinances that lumped them in with general livestock or nuisance restrictions. The statute reads:

No county, municipality, consolidated government, or other political subdivision of this state shall adopt or continue in effect any ordinance or resolution prohibiting the establishment or maintenance of honeybees in hives, provided that such establishment or maintenance is in compliance with this chapter. This section shall not be construed to restrict or otherwise limit the zoning authority of county or municipal governments; provided, however, that a honeybee hive being maintained at a location in compliance with applicable zoning requirements on June 10, 2011, shall not be adversely affected and may be maintained at the same location notwithstanding any subsequent zoning changes.

Two things stand out. First, the statute reaches only governmental entities. Black's Law Dictionary defines "political subdivision" as a "division of a state that exists primarily to discharge some function of local government," and Tennessee case law has limited the term to entities created by the State for governmental purposes. Second, even as to local governments, the statute preserves zoning authority and only "grandfathers" hives that were in compliance with applicable zoning on June 10, 2011.

Restrictive covenants, by contrast, are contractual property interests. As Maples Homeowners Association explained, they "should be viewed as contracts and construed using the rules of construction generally applicable to the construction of other contracts." A homeowners' association acts under a contractual delegation from the lot owners, not under governmental authority. Even when private behavior could in unusual circumstances be treated as "state action" under the Fourteenth Amendment, the AG saw no "close nexus" between Tennessee and a private HOA that would justify expanding § 44-15-124 beyond its plain terms.

Common questions

Did this opinion let an HOA ban beekeeping in a Tennessee subdivision?

Yes. The AG concluded that the state beekeeping statute (Tenn. Code Ann. § 44-15-124) did not apply to private restrictive covenants. An HOA adopting and enforcing a no-bees covenant did not have to worry about that statute as a defense.

What if the beekeeper had hives there before the HOA passed the ban?

The opinion concluded that the grandfather clause in § 44-15-124 protected only against later local government zoning changes, not later private covenants. So an existing beekeeper could still be required by a new HOA covenant to remove hives, subject only to ordinary contract-law defenses to enforcement of the covenant.

Could a city or county still restrict beekeeping after the 2011 amendment?

Yes, through zoning. The statute expressly preserved "the zoning authority of county or municipal governments." What the statute prohibited was adopting or continuing in effect an "ordinance or resolution" banning compliant hives outright; what it preserved was the broader zoning authority that allows cities and counties to regulate land uses by district.

What did the AG say about the Right to Farm Act?

The Right to Farm Act, Tenn. Code Ann. §§ 43-26-101 to -104, creates a rebuttable presumption that an established farm operation is not a nuisance. "Farm product" includes apiaries. But the Act does not stop cities and counties from regulating beekeeping through zoning, and it does not invalidate private HOA covenants. So a homeowner's nuisance-presumption argument under the Right to Farm Act would not have defeated an HOA covenant against beekeeping.

Why didn't the Pioneer Subdivision case help the beekeeper?

In Pioneer Subdivision Homeowners Association v. Professional Counseling Services, the Court of Appeals held that Tenn. Code Ann. §§ 13-24-101 to -104, a different statute protecting group homes for people with disabilities, overrode both a restrictive covenant and a city zoning ordinance because that statute expressly took "precedence over any provision in any zoning law or ordinance in Tennessee to the contrary." Section 44-15-124 contains no comparable supremacy clause and, in fact, preserves rather than overrides zoning. So Pioneer's reasoning didn't carry over.

Did the opinion address freedom of contract or the Fourteenth Amendment?

Only briefly, in a footnote. Private action can occasionally be treated as state action where a "close nexus" exists between the state and the challenged conduct, citing Brentwood Academy v. TSSAA. But the AG saw no such nexus between Tennessee and a private homeowners' association, and concluded the statute's reach should not be expanded by construction.

Citations

• Tenn. Code Ann. § 44-15-124 (beekeeping protection statute)
• Tenn. Code Ann. §§ 44-15-101 to -125 (Tennessee beekeeping chapter generally)
• Tenn. Code Ann. §§ 13-24-101 to -104 (disability-housing statute used in Pioneer)
• Tenn. Code Ann. §§ 43-26-101 to -104 (Tennessee Right to Farm Act)
• Smith County Regional Planning Commission v. Hiwassee Village Mobile Home Park, 304 S.W.3d 302 (Tenn. 2010) (scope of "political subdivision")
• Pioneer Subdivision Homeowners Association v. Professional Counseling Services, 2002 WL 31443218 (Tenn. Ct. App. Oct. 31, 2002) (disability-housing statute overriding covenant)
• Maples Homeowners Association v. T & R Nashville Ltd. Partnership, 993 S.W.2d 36 (Tenn. Ct. App. 1998) (restrictive covenants as contracts)
• Chapman v. DaVita, Inc., 380 S.W.3d 710 (Tenn. 2012) (statutory construction)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2013/op13-002.pdf

Original opinion text

S T A T E O F T E N N E S S E E
OFFICE OF THE
ATTORNEY GENERAL
PO BOX 20207
NASHVILLE, TENNESSEE 37202

January 7, 2013

Opinion No. 13-02

Homeowners' Association's Restrictive Covenants on Beekeeping

QUESTIONS

1. Does Tenn. Code Ann. § 44-15-101 to -125, or any other Tennessee law, prohibit, supersede, or otherwise render unenforceable a restrictive covenant adopted by a homeowners' association that disallows the establishment and maintenance of honeybees in hives on property subject to these covenants?

2. If a property owner currently maintains a honeybee hive within a subdivision, and the hive existed on the property on or before June 10, 2011, does Tenn. Code Ann. § 44-15-124 preclude the homeowners' association of that subdivision from adopting a restrictive covenant that would disallow the continued maintenance of this honeybee hive within the subdivision?

OPINIONS

1. No. The referenced statutes do not apply to restrictive covenants adopted by homeowners' associations, nor do they express an unequivocal public policy against such restrictive covenants. Nor is this Office aware of any other Tennessee statute that would preclude such a covenant.

2. No. Tenn. Code Ann. § 44-15-124 only protects hives maintained in accordance with the zoning regulations of a county or municipal government as of June 20, 2011, from being adversely affected by changes to those zoning regulations and does not apply to subsequent private restrictive covenants prohibiting the continued maintenance of honeybee hives on property subject to these covenants.

ANALYSIS

Tenn. Code Ann. §§ 44-15-101 to -125 govern beekeeping in Tennessee. The questions posed regard the effect, if any, of Tenn. Code Ann. § 44-15-124 on the enforceability of a restrictive covenant that disallows the establishment and maintenance of honeybees in hives on property located within a subdivision. Tenn. Code Ann. § 44-15-124 provides:

No county, municipality, consolidated government, or other political subdivision of this state shall adopt or continue in effect any ordinance or resolution prohibiting the establishment or maintenance of honeybees in hives, provided that such establishment or maintenance is in compliance with this chapter. This section shall not be construed to restrict or otherwise limit the zoning authority of county or municipal governments; provided, however, that a honeybee hive being maintained at a location in compliance with applicable zoning requirements on June 10, 2011, shall not be adversely affected and may be maintained at the same location notwithstanding any subsequent zoning changes.

(Emphasis added).

1. Tenn. Code Ann. § 44-15-124 does not invalidate a restrictive covenant duly adopted by a homeowners' association that prohibits beekeeping within the property of the subdivision subject to the covenants established by the homeowners' association. By its terms, Tenn. Code Ann. § 44-15-124 prevents any "county, municipality, consolidated government, or other political subdivision" of the state from adopting or continuing in effect any "ordinance or resolution" prohibiting the establishment or maintenance of honeybees in hives that are in compliance with the statutes governing beekeeping in Tennessee, but does not restrict or limit the zoning authority of a county or municipal government. The statute does not define the term "political subdivision." In such cases, a court would look to dictionary definitions, including Black's Law Dictionary, to establish the meaning of the undefined term. See State v. Majors, 318 S.W.3d 850, 859 (Tenn. 2010); State v. Edmondson, 231 S.W.3d 925, 928 (Tenn. 2007). Black's Law Dictionary defines the term "political subdivision" as a "division of a state that exists primarily to discharge some function of local government." Black's Law Dictionary 1197 (8th ed. 2004). Thus the phrase "county, municipality, consolidated government or other political subdivision of this state" means an entity with some local governmental authority or function. See Smith County Regional Planning Commission v. Hiwassee Village Mobile Home Park, LLC, 304 S.W.3d 302, 311-12 (Tenn. 2010); Cider v. County of Henry, 295 S.W.3d 269, 273-76 (Tenn. Ct. App. 2008), Johnson v. South Central Human Resource Agency, 926 S.W.2d 951, 952 (Tenn. Ct. App. 1996) (all recognizing in a variety of contexts that the term "political subdivision of a state" only includes entities that are created by the State for governmental purposes).

By contrast, a restrictive covenant is a contract regarding the use of land among generally private landowners. Such covenants are property interests that run with the land and usually arise from a series of overlapping contractual transactions. See Maples Homeowners Association, Inc. v. T & R Nashville Limited Partnership, 993 S.W.2d 36, 38-39 (Tenn. Ct. App. 1998). Accordingly, they should be viewed as contracts and construed using the rules of construction generally applicable to the construction of other contracts. Id.

For these reasons, the terms "county, municipality, consolidated government, or other political subdivision" as used in Tenn. Code Ann. § 44-14-124 would not include a privately incorporated organization, such as a homeowners' association, authorized to enforce the covenants under the terms of an agreement among landowners. Such an organization derives its authority from the terms of the contract and would not be an instrumentality of local government.

The case of Pioneer Subdivision Homeowners Association, Inc. v. Professional Counseling Services, Inc., No. W2001-03053-COA-R3-CV, 2002 WL 31443218 (Tenn. Ct. App. Oct. 31, 2002) does not dictate a different conclusion. In Pioneer, a non-profit corporation, including lot owners within a subdivision, sued to prevent a purchaser from using a home in the subdivision as a group home for mentally handicapped persons or their guardians. Id. at 1-2. The association claimed that the home would violate a restrictive covenant prohibiting any business use or other use of property in the subdivision other than a private residence or single family dwelling. Id. The petition also claimed the home would violate a city ordinance prohibiting group homes and nursing homes in residential areas. Id. The trial court denied the association's request for an injunction. Id. The Court of Appeals found that both the restrictive covenant and the zoning ordinance were preempted by Tenn. Code Ann. §§ 13-24-101 to -104. Id. at 3. Tenn. Code Ann. § 13-24-101(a) states that "[i]t is the purpose of this part to remove any zoning obstacles which prevent persons with a disability from living in normal residential surroundings." Tenn. Code Ann. § 13-24-102 provides:

For the purposes of any zoning law in Tennessee, the classification "single family residence" includes any home in which eight (8) or fewer unrelated persons with disabilities reside, and may include three (3) additional persons acting as support staff or guardians, who need not be related to each other or to any of the persons with disabilities residing in the home.

Most importantly for purposes of the question under consideration, Tenn. Code Ann. § 13-24-103 specifically states that "[t]his part takes precedence over any provision in any zoning law or ordinance in Tennessee to the contrary." The Court found that the statute overrode both the restrictive covenant for the subdivision and the city zoning ordinance. Id.

Unlike the statute addressed in Pioneer, Tenn. Code Ann. § 44-15-124 does not expressly override zoning law or ordinances restricting the practice of beekeeping. In fact, Tenn. Code Ann. § 44-15-124 expressly provides that it "shall not be construed to restrict or otherwise limit the zoning authority of county or municipal governments." Thus, under the statute, cities and counties can continue to restrict beekeeping by zoning ordinance. But, under the last proviso, a zoning ordinance passed by a local government after the act became effective cannot adversely affect a hive maintained at a location in compliance with applicable zoning as of June 10, 2011. Tenn. Code Ann. § 44-15-124 also does not purport to override existing restrictive covenants contractually established between generally private landowners. For these reasons, the statute does not invalidate a homeowners' association's restrictive covenant prohibiting beekeeping on private property.

This Office is unaware of any other statutes that would render such a covenant unenforceable. The Tennessee Right to Farm Act, codified at Tenn. Code Ann. §§ 43-26-101 to -104, creates a rebuttable presumption that an established farm operation is not a public or private nuisance. The term "farm operation" means an activity on a farm in connection with the commercial production of farm products or nursery stock. Tenn. Code Ann. § 43-26-102(2). "Farm product" is defined to include apiaries. Tenn. Code Ann. § 43-26-102(3). But this Act does not prevent cities and counties from restricting beekeeping operations through zoning, and it does not render unenforceable any private restrictive covenants established by a homeowners' association to restrict or prohibit beekeeping.

2. Again, Tenn. Code Ann. § 44-15-124 by its terms is inapplicable to restrictive covenants agreed to by landowners as part of a homeowners' association. Thus, restrictive covenants are not subject to the last proviso in the second sentence of Tenn. Code Ann. § 44-15-124, stating that "a honeybee hive being maintained at a location in compliance with applicable zoning requirements on June 10, 2011, shall not be adversely affected and may be maintained at the same location notwithstanding any subsequent zoning changes." (Emphasis added). By its terms, this proviso only applies to hives maintained in accordance with zoning regulations as of the effective date of the act. In essence, this provision "grandfathers in" properly zoned hives that existed on June 10, 2011 so that subsequent zoning changes by a local government cannot affect their right to continue. It has no effect on hives that violate private restrictive covenants by a homeowners' association on or before that date. See Chapman v. DaVita, Inc., 380 S.W.3d 710, 714 (Tenn. 2012) (stating general rule of statutory construction that a statute's language should be given its natural and ordinary meaning, without any forced or subtle construction that would extend the statute's meaning).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

C. SCOTT JACKSON
Deputy Attorney General

Requested by:

The Honorable Glen Casada
State Representative
25 Legislative Plaza
Nashville, Tennessee 37243-0163