Can a Tennessee county or city set appearance-based design standards for single-family homes (exterior paint, materials, roof style)?

Plain-English summary

Representative Tim Wirgau asked whether Tennessee counties and municipalities can enact appearance-based design ordinances (exterior paint colors, cladding, roof style, garage door count, window placement) for single-family home construction. The AG said yes, with the standard zoning-law caveats.

Statutory authority. Tennessee counties and municipalities derive zoning power from the General Assembly. Tenn. Code Ann. §§ 13-7-101(a)(1) and -201(a)(1) authorize regulating the location, height, size of buildings, lot coverage, population density, yard sizes, courts, and open spaces. §§ 13-7-102 and -202 authorize regulating "the erection, construction, reconstruction, alteration and uses of buildings and structures and the uses of land." The grants are broad (Shore v. Maple Lane Farms; Fallin v. Knox Cnty.) but conditioned on "promoting the public health, safety, morals, convenience, order, prosperity and general welfare."

Aesthetic considerations. The old Tennessee view, City of Norris v. Bradford (1958), was that aesthetic considerations alone could not support police power exercise. The Tennessee Supreme Court retreated from that in State v. Smith, 618 S.W.2d 474 (Tenn. 1981), citing Penn. Central Transport Co. v. New York City and Berman v. Parker. Smith concluded that "in modern society aesthetic considerations may well constitute a legitimate basis for the exercise of police power, depending on the facts and circumstances."

Judicial review. Quite restricted. A zoning enactment is valid unless "shown to be clearly arbitrary, capricious, or unreasonable, having no substantial relation to the public health, safety, or welfare." Fallin v. Knox Cnty.; Family Golf of Nashville. If the validity is "fairly debatable," courts defer to the legislative body.

The outer limit. Per the opinion, an aesthetic design ordinance is valid only if it "does not violate any state statute or positive constitutional guaranty" and is not "clearly arbitrary, capricious, or unreasonable, having no substantial relation to the public health, safety, or welfare."

The AG declined to opine on any specific ordinance because validity depends on community-specific facts and circumstances. A design standard reasonable for one neighborhood may be unreasonable for another.

Currency note

This opinion was issued in 2017. 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 mentioned here.

Background and statutory framework

The Dillon-rule baseline. Tennessee counties and municipalities have no inherent zoning authority. They have only what the legislature has delegated. Shore v. Maple Lane Farms and Lafferty v. City of Winchester are the standard cites. Local exercise of zoning power must conform to the delegation. 421 Corp.; Family Golf.

The delegation in §§ 13-7-101 and 13-7-201. Counties and municipalities can regulate:

• Location, height, and size of buildings and other structures
• Percentage of a lot that may be occupied
• Density of population
• Sizes of yards, courts, and other open spaces
• Uses of buildings and structures (trade, industry, residence, recreation, other)
• Erection, construction, reconstruction, alteration, and uses of buildings and structures

The Tennessee Supreme Court has read these grants broadly. Fallin; Shore. But the broad grant has a purpose limit: regulations must promote public health, safety, morals, convenience, order, prosperity, and general welfare.

Aesthetic regulation: from City of Norris to State v. Smith. City of Norris v. Bradford (1958) struck down an ordinance forbidding front-yard fences as an unconstitutional aesthetic regulation. By 1981, prevailing constitutional law had shifted. The U.S. Supreme Court in Berman v. Parker (1954) had said the legislature may determine that "the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled." Penn. Central Transport Co. v. New York City (1978) recognized aesthetic considerations as a valid basis for land-use restrictions. The Tennessee Supreme Court in Smith explicitly disavowed the Bradford approach: aesthetic considerations may constitute a legitimate basis for police power.

Restricted judicial review of zoning. Fallin v. Knox Cnty. Bd. of Comm'rs (Tenn. 1983) sets the standard. Zoning is a legislative matter. Courts should not interfere unless clearly necessary. If the rationale is "fairly debatable," the court cannot substitute its judgment. An ordinance is invalid only if "clearly arbitrary, capricious, or unreasonable, having no substantial relation to the public health, safety, or welfare." Many jurisdictions outside Tennessee have applied this same framework to uphold aesthetic regulations that bear substantially on the economic, social, and cultural patterns of a community.

Limits on aesthetic regulation. The opinion frames the outer boundary in the terms of the Fallin standard: a design ordinance is invalid if it violates a state statute or positive constitutional guaranty, or if it is clearly arbitrary, capricious, or unreasonable with no substantial relation to public health, safety, or welfare. The opinion did not address regulatory-takings doctrine.

Examples of design regulation. The opinion request listed paint colors, cladding material, roof styles and materials, porch styles, exterior architectural ornamentation, window and door styles and locations, room counts and interior layout, garage door count, and front-façade materials. The AG did not opine on any particular requirement, noting that validity is fact-specific to each community.

Common questions

Q: Can a Tennessee city tell a homebuilder what colors to paint a house?
A: According to this opinion, yes, generally, under a properly enacted zoning ordinance. The ordinance is valid unless it's clearly arbitrary or has no substantial relation to public health, safety, or welfare.

Q: Can a county dictate what cladding materials I use on a single-family home?
A: According to this opinion, yes, within the same constraints. The ordinance must serve a legitimate purpose, must not violate any state statute or constitutional guaranty, and must not be arbitrary.

Q: Doesn't this raise constitutional concerns?
A: Not under modern Tennessee jurisprudence. State v. Smith (1981) accepted aesthetic considerations as a legitimate police power basis. Federal precedent (Berman v. Parker; Penn. Central) supports the same conclusion.

Q: When is a design ordinance invalid?
A: When it violates a state statute or positive constitutional guaranty, or when it is "clearly arbitrary, capricious, or unreasonable, having no substantial relation to the public health, safety, or welfare." Fallin.

Q: Does the AG endorse any particular design rule?
A: No. The opinion declined to assess specific ordinances because validity depends on community-specific facts.

Citations and references

Statutes:

• Tenn. Code Ann. §§ 13-7-101(a)(1), -102, -103
• Tenn. Code Ann. §§ 13-7-201(a)(1), -202

Cases:

• Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405 (Tenn. 2013)
• Lafferty v. City of Winchester, 46 S.W.3d 752 (Tenn. Ct. App. 2000)
• Smith Cnty. Reg'l Planning Comm'n v. Hiwassee Village Mobile Home Park, LLC, 304 S.W.3d 302 (Tenn. 2010)
• 421 Corp. v. Metropolitan Gov't of Nashville and Davidson Cnty., 36 S.W.3d 469 (Tenn. Ct. App. 2000)
• Family Golf of Nashville, Inc. v. Metropolitan Gov't of Nashville and Davidson Cnty., 964 S.W.2d 254 (Tenn. Ct. App. 1997)
• KLN Assocs. v. Metro Dev. & Hous. Agency, 797 S.W.2d 898 (Tenn. Ct. App. 1990)
• Fallin v. Knox Cnty. Bd. of Comm'rs, 656 S.W.2d 338 (Tenn. 1983)
• City of Norris v. Bradford, 204 Tenn. 319, 321 S.W.2d 543 (1958)
• State v. Smith, 618 S.W.2d 474 (Tenn. 1981)
• Penn. Central Transport Co. v. New York City, 438 U.S. 104 (1978)
• Berman v. Parker, 348 U.S. 26 (1954)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2017/op17-044.pdf

Original opinion text

Validity of Residential Building Design Ordinances and Regulations

Question
Does Tennessee law authorize counties and municipalities to enact ordinances and regulations that require the observation of appearance-based residential building design standards for the construction of single family dwellings?

Opinion
Assuming the local ordinance or regulation does not violate any state statute or positive constitutional guaranty, such an ordinance or regulation is valid unless the design standard is clearly arbitrary, capricious, or unreasonable, having no substantial relation to the public health, safety, or welfare.

ANALYSIS

Tennessee counties and municipalities lack the inherent authority to control the use of private property within their boundaries. Shore v. Maple Lane Farms, LLC, 411 S.W.3d 405, 425 (Tenn. 2013); Lafferty v. City of Winchester, 46 S.W.3d 752, 757 (Tenn. Ct. App. 2000). Their power derives from the State through specific delegation by the General Assembly. Shore, 411 S.W.3d at 426; Smith Cnty. Reg'l Planning Comm'n v. Hiwassee Village Mobile Home Park, LLC, 304 S.W.3d 302, 309 (Tenn. 2010). Thus, local governments must exercise their delegated powers in a manner that is consistent with the delegation statutes from which they derive their power. 421 Corp. v. Metropolitan Gov't of Nashville and Davidson Cnty., 36 S.W.3d 469, 475 (Tenn. Ct. App. 2000); Family Golf of Nashville, Inc. v. Metropolitan Gov't of Nashville and Davidson Cnty., 964 S.W.2d 254, 257 (Tenn. Ct. App. 1997). Accordingly, the validity of a local ordinance that requires the observation of appearance-based residential design standards for the construction of single family dwellings must be measured against the statutes that authorize local governments to regulate land use. See KLN Assocs. v. Metro Dev. & Hous. Agency, 797 S.W.2d 898, 902 (Tenn. Ct. App. 1990).

Since 1935, counties and municipalities have been statutorily authorized to zone property. Id. In general terms, zoning involves the territorial division of land into districts according to the character of the land and buildings, their suitability for particular purposes, and the uniformity of these uses. Lafferty, 46 S.W.3d at 758; Family Golf, 964 S.W.2d at 258. Zoning regulations focus primarily on property use and the architectural and structural designs of buildings. Id.

Specifically, counties and municipalities are empowered to regulate the location, height and size of buildings and other structures, the percentage of a lot that may be occupied, the density of population, and the sizes of yards, courts, and other open spaces. Tenn. Code Ann. §§ 13-7-101(a)(1), -201(a)(1). They are also authorized to regulate the uses of buildings and structures for trade, industry, residence, recreation or other purposes. Id. Further, counties and municipalities are authorized to regulate "the erection, construction, reconstruction, alteration and uses of buildings and structures and the uses of land." Tenn. Code Ann. §§ 13-7-102, -202.

The Tennessee Supreme Court has observed that the grants of power in these statutes are broad. Shore, 411 S.W.3d at 426; Fallin v. Knox Cnty. Bd. Of Comm'rs, 656 S.W.2d 338, 342 (Tenn. 1983). But the grants are not without limit. 421 Corp., 36 S.W.3d at 475. See Shore, 411 S.W.3d at 426. Counties and municipalities must exercise their power "in accordance with the conditions . . . specified in this part . . . ." Tenn. Code Ann. §§ 13-7-101(a)(1), -201(a)(1). One of the conditions is that local regulation must be "for the purpose of promoting the public health, safety, morals, convenience, order, prosperity and general welfare." Tenn. Code Ann. § 13-7-201(a)(1); Tenn. Code Ann. § 13-7-103 (same).

Local legislative bodies have broad discretion when they exercise their delegated police powers to adopt or amend zoning ordinances. Fallin, 656 S.W.2d at 342; Family Golf, 964 S.W.2d at 260. The scope of judicial review of such action is quite restricted:

Zoning is a legislative matter, and, as a general proposition, the exercise of the zoning power should not be subjected to judicial interference unless clearly necessary. In enacting or amending zoning legislation, the local authorities are vested with broad discretion and, in cases where the validity of a zoning ordinance is fairly debatable, the court cannot substitute its judgment for that of the legislative authority. If there is a rational or justifiable basis for the enactment and it does not violate any state statute or positive constitutional guaranty, the wisdom of the zoning regulation is a matter exclusively for legislative determination.

[T]he courts should not interfere with the exercise of the zoning power and hold a zoning enactment invalid, unless the enactment, in whole or in relation to any particular property, is shown to be clearly arbitrary, capricious, or unreasonable, having no substantial relation to the public health, safety, or welfare.

Fallin, 656 S.W.2d at 342-343; Family Golf, 964 S.W.2d at 260.

These appearance-based design standards are in essence aesthetic ones. In the past, Tennessee adhered to the then-prevailing view that aesthetic considerations alone were insufficient to support the invocation of police power in zoning cases. See City of Norris v. Bradford, 204 Tenn. 319, 323-326, 321 S.W.2d 543, 545-546 (Tenn. 1958).

But the Tennessee Supreme Court has since retreated from this view. See State v. Smith, 618 S.W.2d 474, 477 (Tenn. 1981). In Smith, an owner of a junkyard challenged a statute that prohibited the operation of a junkyard facility within 1000 feet of a state thoroughfare on the grounds that the statute was based solely on aesthetic considerations. The Court observed that the United States Supreme Court had stated that land use restrictions may be enacted "to enhance the quality of life by preserving the character and desirable aesthetic features of a city" and the legislature may determine that "the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled." Id. at 477 (quoting Penn. Central Transport Co. v. New York City, 438 U.S. 104, 129 (1978) and Berman v. Parker, 348 U.S. 26, 33 (1954)). The Court concluded:

We therefore are of the opinion that in modern society aesthetic considerations may well constitute a legitimate basis for the exercise of police power, depending on the facts and circumstances.

Id. (emphasis added).

In sum, an ordinance or regulation imposing a design standard is valid unless it violates any state statute or positive constitutional guaranty or unless it is "clearly arbitrary, capricious, or unreasonable, having no substantial relation to the public health, safety, or welfare." Accordingly, whether any given ordinance or regulation requiring the observation of appearance-based residential building design standards for the construction of single family dwellings is valid is a fact-intensive inquiry, the answer to which will depend on the particular facts and circumstances related to the particular community. A given design standard may be reasonable in one community, but not in another.

HERBERT H. SLATERY III
Attorney General and Reporter

ANDRÉE SOPHIA BLUMSTEIN
Solicitor General

LAURA T. KIDWELL
Senior Counsel

Requested by:
Honorable Tim Wirgau
State Representative
G-2 War Memorial Building
Nashville, Tennessee 37243