It’s Time to Ban Pending Ordinance Doctrine


February 13, 2023 10:12AM

Imagine if laws we must comply with became enforceable before ever being voted on by our elected representatives. Guess what? Some do, right here in Tennessee.

Several years ago, the courts created what’s called the “pending ordinance doctrine” for zoning and other property use changes in local communities. The idea was that if a zoning change was proposed, developers would rush to get permits under the existing zoning regulations before the new one took effect. Practical as this may sound, it flies in the face of our constitutional form of government, where laws are proposed, debated, and passed by a majority of those we elect to represent us. 

Nashville in particular has used the pending ordinance doctrine to enforce laws that don’t even have the votes to pass the Metro Council. Numerous laws have been enforced for years having never even been voted on, much less passed. 

Not only is this an affront to our representative form of government, but it also tramples on the property rights of people across our state. Zoning and other land use restrictions can impact how a person may use his or her own property, and never should these changes be imposed upon them without a vote by their elected officials. 

Beacon conducted a statewide listening tour last year. We found that rising housing costs was the number one concern of Tennesseans. Zoning and property restrictions can often limit housing supply and drive up housing costs. If local governments are going to make the problem of affordable housing worse with their short-sighted policies, they should at least vote on these changes on the record for their constituents to see. The legislature needs to ban the pending ordinance doctrine once and for all.