Amend the Metro Charter to Protect Private Property Rights

by Jim Gotto

One of the unique characteristics of the United States that has set it apart from other countries is the right of individual citizens to own property. Generally referred to as property rights, this freedom that we have has been a significant contributor to successful entrepreneurship and the resulting strong private economy that exists in the United States. We enjoy the highest standard of living in the world, due in no small part to property rights.

One of the enemies to individual property rights is the abuse of eminent domain by the government or its agents. The use of eminent domain should be limited to only those projects that are absolutely necessary for government to fulfill its purposes. The purposes of government have and continue to be a much debated subject. I do not wish to engage in that discussion at this time but I am of the opinion that the delegation of eminent domain decisions to a bureaucratic agency is outside what can reasonably be considered under the umbrella of the purposes of government.

In the past, The Mayor and Metro Council have done just that by legislating redevelopment districts and in that legislation delegated the authority to obtain a private citizens property through condemnation. The agency that has been the beneficiary of this power is the Metropolitan Development and Housing Agency (MDHA). The only restraint placed on MDHA is to determine if the property is “blighted”.

Consider the recent case of Joy Ford. Ms Ford owns a business that is within the footprint of the Gulch Redevelopment District. MDHA through a subjective decision making process declared her property blighted and undertook proceedings to obtain it through eminent domain against Ms Ford’s wishes. The purpose of this property seizure was to pass it on to Lionstone Group, a private developer.

It was only after public pressure was exerted as a result of the involvement of some Metro Council members and the press that MDHA relented and Ms Ford prevailed. However, there was nothing that the Council could do in a timely manner to stop the proceedings because MDHA had been previously granted eminent domain authority through the legislation that established the Gulch Redevelopment District. Had MDHA continued, the final decision would have been up to the courts and I do not believe that eminent domain cases devoid of elected officials’ control on a case by case basis should be settled in this manner.

The only effective way to insure that elected officials in Davidson County retain the absolute authority to make eminent domain decisions is to amend the Metro Charter. An easier course would be to pass legislation to this end. However, any new law could be nullified by future legislation. Amending the Charter to specify that all eminent decisions must come to the Council for a vote on a case by case basis is the only way to preserve the Metro Council’s authority to oversee and protect the property rights of the citizens of Davidson County.

Jim Gotto is a Metro Councilman representing Council District 12. The proposed charter amendment, sponsored by Jim Gotto, to require that all eminent domain decisions must come to the Metro Council for a vote on a case by case basis will be on the November ballot. Gotto is a candidate seeking the District 60 House seat.

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Victory for Music Row Entrepreneur Joy Ford In Nashville Eminent Domain Dispute

Ford Keeps Her Building & Gets More Land, Conflict Settled through Private Negotiation, Not Government Force

Institute for Justice, October 1, 2008

Eminent domain will not be used against Nashville music entrepreneur Joy Ford in a hotly contested battle about the abuse of government for a developer’s private gain. In an agreement signed Tuesday night, September 30, Ford, who has fought eminent domain since June of this year, keeps both her building and obtains more land adjacent to her building along Nashville’s storied Music Row while agreeing to give up land behind her office. (link)

Landowner Ford stays put as Music Row standoff ends

By CHAS SISK Staff Writer, The Tennessean, October 2, 2008

A $70 million Music Row project has cleared a major obstacle after the developer and city officials reached a high-profile compromise with landowner Joy Ford on Wednesday that saves her business from the bulldozer.

"I'm so elated this is over," Ford said. "This is not about money and material things. If you spend a day or a hundred years of creating something that rightfully belongs to you, it's wrong for somebody to take it." (link)

Music Row holdout saves her memories

By GAIL KERR, The Tennessean, October 2, 2008

They said she was an obstructionist. Greedy. Stubborn. Stupid. And yes, even the "b" word.
But Joy Ford would not budge. Not because she is any of those things, but because Country International Records, humble and dated as some may see it, is hers.

The saga of big and powerful people trying to take Joy's land is over. The two sides forged a compromise with a simple land trade.

That is good for the developers, good for Music Row and good for Joy Ford. But developers and city officials who help them should walk away from this with a lesson learned: Some people can't be bought. (link)

Comment

Finally this story has come to an end. Joy Ford stays put. Standing up to the city's closing of an alley which made it difficult for tour buses to park behind her building, facing the threat of condemnation, and rejecting large offers of money, Joy Ford refused to budge.

Joy had a lot of help in her David-versus-Goliath battle. Local radio conservative talk show host Phil Valentine took up her cause. The Tennessean, which usually can be counted upon to take a liberal position on any issue, came to the defense of Joy Ford with sympathetic news stories and pro Ford opinion pieces by Gail Kerr. Bloggers and chatters took up her cause. While there was never a public demonstration, if this case would have gone on, I believe a lot of people would have turned out to demonstrate on her behalf. I know, I would have. One organization that received little public mention but that fought her legal battles was The Institute for Justice.
Although this case is over, we should not allow this to happen to anyone else. The right of condemnation should be restricted to a true public purpose. Simply because a property is in the way of a redevelopment plan, the city should not be able to take the land through condemnation. The state legislature needs to redefine what constitutes "blight." In any normal use of the term, Joy Ford's property was not blighted. The Metro Council needs to take away from the Metro Development and Housing Agency the right to exercise eminent domain and all eminent domain condemnations should have to be voted on by the Council.
Ford achieved her victory but is not giving up the fight. She has pledging to work with other property owners and Metro and state legislators to stop eminent domain abuse saying, “I will not rest until eminent domain is stopped being used on behalf of private interests.”

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Homeowners Notch Win in Long-Running Battle Over Eminent Domain

Pamela A. MacLean, Law.com, 08-11-2008

A New Jersey appellate court handed a victory to homeowners in a long-running eminent domain dispute with the city of Long Branch, N.J., finding no actual blight in an area set for condemnation and redevelopment.

The case by a group of long-term residents of the coastal strip drew the attention of land use specialists and landowner rights advocates from around the country in the wake of the U.S. Supreme Court's 2005 decision allowing cities to use eminent domain to take "blighted" land from one private owner to give to another for development. (link)

Commentary
I realize that if a similar case went to trial in Nashville, it would have to be decided by defining "blight" under Tennessee law. I am not a lawyer and do not know how such a suit would turn out. However, I would be very surprised if Joy Ford's modest neat brick one story building could be found to be blighted under any rational definition of the term. I would be surprised if Tennessee defines blight less restrictively than New Jersey.
It appear that the Joy Ford case is going to be solved. The developer and MDHA decided they did not have to take her property in order to go forward with the proposed development after all. They have offered her a large sum of money for a portion of her parking. This however is still a case of negotiating while some one has a gun to your head. Joy will probably decide to accept the lucrative offer rather than fight a costly court battle. I don't blame her. However, I would like to have seen this go to court. Property should not be considered "blighted" just because someone else has a better use for the property. Property owners should be able to be secure in knowing that they have a right to their property.
While it appears that eminent domain condemnation was avoided in the case of Joy Ford, the right of the government to take your property on behalf of a developer is secure. Citizens in redevelopment zones must still negotiate with potential buyers while the government holds a gun to their head.

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Nashville Showdown Over Eminent Domain Avoided

It looks like a showdown over eminent domain in Nashville has been avoided and the Lionstone Development will go forward and Joy Ford will get to keep her property. Under a new proposal by Metro Development and Housing Agency (MDHA) and Houston-based developer The Lionstone Group, Lionstone would purchase a portion of the parking lot that surrounds Ms Ford’s office. Ford would be able to continue operating Country International Records at its current location.

Previously, MDHA had deemed the property “blighted” and was intending to take the property by eminent domain condemnation. The neat but simple brick building housing County International Records is located in the middle of a redevelopment district. MDHA had sought to acquire the Ford’s property on behalf of the developer who is planning a $70 million office tower on the adjacent property. Previously MDHA had taken the position that the development could not occur unless Ms Ford’s property was acquired. Ms Ford did not want to sell, so the city was going to use the power of eminent domain to take her property.

The Tennessean had editorialized against the proposed condemnation and talk show callers and Internet chatters had condemned the condemnation. Several Metro Council members said they were considering proposing legislation that would block the eminent domain action.

It looks like MDHA saw they were likely to lose and backed down, and what do you know? The development can occur without using the iron fist of government to take someone’s property.

To read more about this case, click the label “Joy Ford” in the sidebar to the left.

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Eminent domain vs. property rights

City is being used for private profit

By COUNCILMAN MICHAEL CRADDOCK, The Tennessean, July 31, 2008

Twenty-three Music Circle E. is a very small parcel of real estate that is owned by Mrs. Joy Ford, a country music songwriter and producer. Her name is on the deed.

I am sure that as I write this article, Mrs. Ford feels like her world is crumbling around her. After all, she is being forced to defend her private property rights against the 800-pound gorilla commonly known as the Metropolitan Government of Nashville and Davidson County. (link)


It's not always about money; it is about respect for ownership

Our View, The Tennessean, July 31, 2008

Nashville's Music Row was once a place where individualism was valued.

Large record labels have always been an important part of the Row, it's true, but they co-existed with small publishers and other cottage industries, all taking their chances at success.
The Row, and Nashville as a whole, could lose that reputation if the Metro Development and Housing Authority is allowed to seize a small-business owner's property to be handed over to a large commercial development.

In June, MDHA sought Circuit Court approval to declare Joy Ford's building at 23 Music Circle E. "blighted," which would enable the agency to claim the property under a redevelopment district set up in 1999. (link)

Comment: The entire Opinion Page of today's Tennessean is devoted to this topic. At the same link as listed above, you can also find the article "Such districts save Nashville from decay" by MDHA's Phil Ryan, and "Lionstone project will bring jobs, revenue city needs" by Lionstone's Doug McKinnon. Both make the case in defense of condemnation.

I am pleased and pleasantly surprised to see The Tennessean take such a bold stand for private, property rights. Often The Tennessean seems to me to be wishy-washy and moderately liberal, sort of the local version of USA Today. In this case however, The Tennessean has taken a strong position and one with which I happen to agree. In their editorial, they stated "There are limits to what urban redevelopment should do, and taking someone's property against their will for purposes that are not expressly for the public good is simply going too far." Congratulations to The Tennessean!

Congratulations, also, to Councilman Michael Craddock for showing leadership on this issue.

The fight is not over. Maybe justice will prevail. What can we do to help?

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Music Row land grab should be condemned

photo by Jeanne Reasonover/The Tennnessean

Joy Ford pictured above, owner of Country International Records, explains how the city closed a public alley which means her property can no longer accommodate artist tour buses.

by Gail Kerr, The Tennessean, Sunday July 27, 2008

City officials have closed her alley. Her property is barricaded on three sides. But inside the little brown brick building on Music Row, songwriters are still making music under Joy Ford's tutorage.

The Metro Development and Housing Agency is trying to take Ford's business and land. Not for a road or a bridge or some essential service. For a 225,000-square-foot office and retail high-rise for a private out-of-state developer. (link)

Commentary
The city is out to take Joy Ford's property. They have offered her large sums of money, they closed the alley that accesses the back of her property and they have started condemnation proceedings. It is an outrage.

This is an excellent article by Gail Kerr. It not only explains the current circumstances surrounding the effort to take away Joy Ford's property but gives a brief summary of other past cases of government abuse of property owners in Nashville. The article also provides some local flavor. Despite the role of the multinational corporate interest in the music business, there are still many cottage industry players like Joy Ford. Unfortunately, the city fathers are ready to kick the Joy Fords to the curb, take their property, and turn it over to the big developers.

Nashville is still a small town, despite being a big city, so someone will probably send this post to Gail Kerr of the Tennnessean and to Phil Ryan of MDHA. I have known both Gail and Phil for many years, both from the days I was a member of the Metro Council and from my roll in the non-profit housing sector. If anyone is reading this who knows Joy Ford, please send her a copy.

Dear Gail,
This is an excellent article. I always read you columns and enjoy them immensely. I am somewhat critical of the quality of the Tennessean and think that it, like many newspapers across the country, has consistently gotten worse over the years. I think you, however, have emerged as a great writer. I am pleased to see you cover this story. You bring a human element to it. Please continue the coverage and don't let the story die. I give you my "amen."

Dear Phil,
I know you are not a bad person and you are only doing your job, but you disappoint me. I am generally proud of the work that MDHA does. We have had one of the nations few successful HOPE VI programs. We have well-managed public housing. We have had a lot of success in expanding homeownership and affordable housing. Down down development has been impressive. I am especially pleased with the development in the gulch. A lot of the credit for the impressive development of Nashville goes to you and you have a difficult job. However, Phil, you are the bad guy in this. It is simply wrong to take another's property just because you have a better use for it. This little piece of property is not charming, but it is not "blighted." That a big development would increase the tax base is insufficient justification for taking what is not yours. Please back off. Let the development of this area be delayed a few years. Let the development wrap around Ms Fords property. Why? Because as Joy Ford says, "This is America."

Dear Joy,
I don't know you, but I feel like I do. Hang in there. If you have a fund set up to help you with your legal fees, let me know. I will make a small contribution and post the information on this blog. Also, do you have a petition we can sign. Should I contact my Councilman? Please keep me informed. What can I do to help?

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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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City Starts To Seize Music Row Property

To learn more about this story and see a Channel 5 news report click the title above.

Does this look blighted?

It is not pretty. It is not even charming; but would you call it blighted? This is the home of Country International Records, and it is in the way of a new high rise. Metro wants to take it and sell it to the developer.

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Agency's property grab on Music Row is 'blighted', all right

By PHIL VALENTINE

Blighted. That could very well be one of the most powerful words in America today.

It strikes terror in the hearts of those on the receiving end of it. It's wielded like a sword by power-crazed municipalities. Its interpretation is widely subjective, and those who are the first to utter it often own the power of its definition.

That sword is being wielded against a Music Row business of a quarter century that just happens to be sitting in the way of a Houston developer who wants to build a hotel/condo complex on the Music Row Roundabout.

Comment:
To read the rest of the above article click the title.

What is happening in Nashville is an outrage. I agree wholeheartedly with Phil Valentine when he says, "This whole notion of taking someone's property just because you think it can be used in a better manner runs contrary to every principle we hold near and dear as Americans."

Our newly elected mayor could stop this. We have a forty member metro council. Any one of them could speak up for private property rights and try to stop it. If a council member was not able to stop it, he could at least make the Council go on record and this would allow us to know who does and who does not, believe in private property rights.

I am a pragmatist and do feel there are times when use of eminent domain is necessary. Sometimes we need to widen roads or take property to build a school. Sometimes, it may even be necessary for slum and blight clearance, but it should be used very sparingly. The property discussed in this article is not blighted! It is simply in the way of a private developer who wants it.

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