Monday, July 7, 2008

Deja Vu All Over Again -- Eminent Domain And The Music Circle Case

by Gene Hawkins

Over on Music Circle, there’s some disharmony. A big developer from Houston, Lionstone, wants to build something. It promises to be a great asset for the city. But there’s a little problem. Lionstone doesn’t own all the land they need. Ms Joy Ford of Country International Records owns a crucial parcel, and she doesn’t want to sell it.

In response, Lionstone has requested that the city of Nashville use their power of eminent domain. They want Metro to seize Ms Ford’s property (with compensation, of course) and turn it over to them. In order words, take property from one private owner, and cede it to another private owner, because they can build something bigger and grander on it.

To Nashvillians of a certain vintage, this has a familiar ring. As the ever eloquent Yogi Berra once said, it’s “deja vu all over again.” A quarter century ago, another big developer from Houston asked Nashville to do exactly the same thing.

The Houston firm in that case was named Murphee. Back in the early eighties, they wanted to erect a new skyscraper on Church Street. It was to house the headquarters of Third National Bank, and promised to be the tallest building in Nashville.

But Murphee had the same problem then that Lionstone is facing now. There was one parcel of land they hadn’t been able to acquire. That parcel was occupied by a men’s clothing store, Petway Reavis. Its owner refused to sell it. And it stood squarely front and center of the proposed Third National tower.

When they were unable to purchase the property, Murphee asked the city of Nashville to use their power of eminent domain, seize it, and turn it over to them. Sound familiar? Deja vu all over again.

The Murphee/Third National case wound up in the Metro Council. After much debate and discussion, the Council determined that this was not an appropriate use of eminent domain. To its credit, the Council said no.

Having been turned down by the city, Murphee redesigned their building to wrap around the holdout parcel. By this time the property owner relented and decided to sell after all. But the revised design was judged better than the original, and the developer stuck with it.

And that is why the big building at Church and Fifth (now the Fifth Third Center) is built in a U-shape.

Now fast forward a quarter century. Another Houston developer is asking the city of Nashville to do exactly the same thing. There’s an additional wrinkle this time. A few years ago a developer wanted the city of New London Connecticut to seize property for a private development there. There were lawsuits, and the case made it to the US Supreme Court. In its 2005 Kelo ruling, the Court gave its Supreme blessing to this use (or misuse) of eminent domain.

To some people, this seemed Robin Hood in Reverse -- take from the poor, and give to the rich. Some people might also say this is just orthodox Republican theology. But rightly or wrongly, there is now a legal precedent for Lionstone’s request.

So in 2008, Metro has a tough decision to make. Is seizure of private property an appropriate use of eminent domain, when the property is ceded to another private entity for a larger development? A quarter century ago, the Council showed courage when they said no to this question. It will be interesting to see what happens in the current case. Will Metro’s decision, like the case itself, be deja vu all over again?

Guest blogger Gene Hawkins is a longtime resident of Nashville's Woodbine community. He's retired from the Air Guard base at Berry Field, and more recently has worked at the Bike Pedlar bicycle shop in Hermitage.

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