The Chatter Class: Does property type play a role in eminent domain?

Monday, June 30, 2008 at 2:38am
Would community folks rally to save strip club Deja Vu from eminent domain proceedings the way they have for Joy Ford’s nearby business? Matthew Williams/The City Paper

Eminent domain is moving to the forefront of chattering as the government moves to condemn Joy Ford’s property next to Music Row.

The chatter isn’t necessarily among officialdom but rather from what talk radio guys are drumming up and in letters to editors.

Sure, it is easy to paint the scenario as bad people taking advantage of an elderly widow. Those money grubbing speculators want Ford’s property via government action as it was put.

But study the situation differently and it would be interesting to see how opposed people might be to the concept of eminent domain. For example, let’s just say the Ford property was an all-nude strip joint or a store that sold porn.

How many people from the community would argue against condemning the property? Would Institute of Justice attorneys have raced here to fight that issue as they did in Connecticut and ultimately lost in the U.S. Supreme Court?

The scenario isn’t that far-fetched. Some day, the city could condemn Déjà Vu at 12th Avenue South and Demonbreun Street and sell it at cost to an adjacent developer.

When it comes to the eminent domain issue, few understand how and when it can be used for economic development, that is, for the purpose of revitalizing an area for the greater good of the entire community.

The government simply can’t take just any property anywhere in the city for economic development purposes. It can’t deem just any property as blighted. Only properties within a redevelopment district can be blighted and condemned for economic development purposes.

Déjà Vu and Ford’s property are in the same redevelopment district as The Gulch.

Interestingly, there are people who are OK with using eminent domain for roads or sewer lines because on the surface that property isn’t being sold to a private developer. The thought being that the property isn’t going to “benefit” a private developer.

Yet, oftentimes, cities build roads and sewers to encourage growth and development. Sometimes that can mean one developer or a single company.

When cities run sewer lines to open land, it’s not for the sake of the squirrels or deer.

The Metropolitan Development and Housing Agency (MDHA) administers the district and is the agency that handles condemnation.

MDHA last condemned a property for economic development about three years ago in a redevelopment district in East Nashville. That property housed a crime-ridden market. Now, it’s Martin’s Corner, a mixed-use development.

The area including Ford’s property and Déjà Vu was deemed blighted a decade ago when the city created a redevelopment district.

Generally speaking, the area was rundown. Shops were boarded up along Demonbreun Street and the former Barbara Mandrell Theater sat empty. The Gulch had open land, not to mention more than one adult business in the footprint.

The Country Music Hall of Fame was leaving for downtown and area property owners wanted something done to revive the area. Property owners were given notice of the plans and all should have known of the potential for the city to condemn land.

That was the time to fight it. So, the writing has been on the wall for a decade.

Still, condemning a property is the last resort and only comes when the private developer or MDHA are unsuccessful at buying the property in question.

Houston-based Lionstone reached an impasse, as did MDHA. It’s tough to negotiate when the owner simply doesn’t want to sell.

To fight the condemnation, Ford may try relying on the narrower rules that Tennessee put in law a couple of years ago in the wake of a U.S. Supreme Court ruling upholding a government’s ability to condemn a property and sell it to a private developer in Connecticut. New rules include more narrowly defining blight.

Ford’s property could be viewed as being in the gray area. It doesn’t have the same crime situation as the property in East Nashville.

She seems to be operating a viable business in the 1980s-era building. But so is Déjà Vu and on some nights it is doing a booming business.

The developer could build around the Ford property, however. In which case, her property wouldn’t be worth nearly as much as has been offered — in the neighborhood of $1 million — and space in the new office building.

At what price is victory?

If Ford happens to win, does that mean she and her family will stand with the owners of Déjà Vu and others to fight condemnation of the strip-club property on principle?

After all, a principle is a principle.

The Chatter Class appears Mondays in The City Paper. Comments may be sent to rlawson@nashvillecitypaper.com

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By: JeffF on 12/31/69 at 6:00

the sewer lines to new development is a good point but generally speaking they do not condemn property in these cases they condemn a right of way and remain the property back to the original owner after the installation process is completed. I would be just as against the condemnation of Deja Vu as well. If a business or activity is legal then it deserves to exist.

By: BigPapa on 12/31/69 at 6:00

I generally agree with Jeff. However, any time I have to drive down Dickerson Rd. I start thinking about how the city should just bulldoze down every building from downtown to goodletsville and start over.

By: nvestnbna on 12/31/69 at 6:00

"I would be just as against the condemnation of Deja Vu as well. If a business or activity is legal then it deserves to exist."What if a Deja Vu neighbor declares themselves to be a church? Does that make Deja Vu a legally operating business under the 500 foot SOB ordinance? What if they were in operation before Deja Vu but had not declared themselves to be a church?I agree on the condemnation, it shouldn't make a difference. I guess another question is how do you identify businesses that blight an area?

By: Dragon on 12/31/69 at 6:00

How do you identify businesses that blight an area? Blight is in the eye of the beholder. Thus, the government has absolute and unfettered power to determine what is blight. A Church could be considered blight in a vibrant business area, especially considering the lack of taxes they pay.Don't forget, the Kelo house was demolished and the property sits vacant, three years later.

By: WickedTribe on 12/31/69 at 6:00

I've never understood people having unreasonable attachments to property, whether business or personal residence.The woman's already been offered more money than the property is worth. She can take it and buy a new location anywhere she likes (if she actually needs the property, which it doesn't sound like she does).People want to portray it as this property being stolen from her, but they've tried to be reasonable already and offered her more than its worth and undoubtedly much more than she paid for it.I guess what I'm saying is, don't look at it like she's being robbed or the property is being "taken" from her. She'll get her money's worth, albeit probably a little less than she's been offered already and refused.

By: NewYorker1 on 12/31/69 at 6:00

I think Joy Ford is an idiot. If she doesn't sell the property, the developer is going to build around her. Once the developer builds around her, her property becomes worthless. It's funny how she's willing to sell for $12 Million though. That should tell you something. The Puta is greedy.

By: nashbeck on 12/31/69 at 6:00

I hope Lionstone builds this project.

By: dnewton on 12/31/69 at 6:00

The legislature anticipated that there might be creative interpretations of the law in order to continue condemnations for the benefit of third parties. The law gives a lot of exceptions and the city seems to be exploiting one of the exceptions. A Public taking for a sewer line or a transportation project is not as controversial as a piece of property taken for economic development purposes. The reason is that sewer lines are directly linked by scientific fact to public health. Transportation expenditures are linked to transportation by a body of evidence that is both scientific and statistical in nature. Economic Development projects have none of those basic underpinnings. We can not even agree that a tax break will stimulate the economy. Some insist that the government can stimulate the economy only with debt. The Kelo case made no challenge to the cities claims of economic development. It was fought on the basis that that did not matter. I say it does matter and might be a basis for reviewing the case in the future. The property taken in the Kelo case is still not developed for the intended purpose since the developer failed to get financing. A citizen should never be called upon to make a sacrifice for nothing. This includes so called legitimate condemnations for roads and other more traditional infrastructure. We owe the citizen a higher order of workmanship and certainty that assures that their sacrifice will be worth it some time in the future. This is the only way to compensate fully for the intangible value that people attach to their property. Part of the law is given below: 29-17-101. Legislative intent. — It is the intent of the general assembly that the power of eminent domain shall be used sparingly, and that laws permitting the use of eminent domain shall be narrowly construed so as not to enlarge, by inference or inadvertently, the power of eminent domain. [Acts 2006, ch. 863, § 1.]29-17-102. Part definitions. — As used in this part, unless the context otherwise requires: (1) “Eminent domain” means the authority conferred upon the government, and those entities to whom the government delegates such authority, to condemn and take, in whole or in part, the private property of another, so long as the property is taken for a legitimate public use in accordance with the fifth and fourteenth amendments to the United States Constitution, the Constitution of Tennessee, Art. 1, § 21, and the provisions of chapter 863 of the Public Acts of 2006; and (2) “Public use” shall not include either private use or benefit, or the indirect public benefits resulting from private economic development and private commercial enterprise, including increased tax revenue and increased employment opportunity, except as follows: (A) The acquisition of any interest in land necessary for a road, highway, bridge, or other structure, facility, or project used for public transportation; (B) The acquisition of any interest in land necessary to the function of a public or private utility, a governmental or quasi-governmental utility, a common carrier, or any entity authorized to exercise the power of eminent domain under title 65; (C) The acquisition of property by a housing authority or community development agency to implement an urban renewal or redevelopment plan in a blighted area, as authorized by title 13, chapter 20, part 2 or title 13, chapter 21, part 2; (D) Private use that is merely incidental to a public use, so long as no land is condemned or taken primarily for the purpose of conveying or permitting the incidental private use; or (E) The acquisition of property by a county, city, or town for an industrial park, as authorized by title 13, chapter 16, part 2. [Acts 2006, ch. 863, § 1.]

By: NewYorker1 on 12/31/69 at 6:00

I hope Lionstone builds around her. Then she can keep her property and the building becomes worthless. So, when she passes on and the property is left to her children, they can then sell it to Lionstone for about $500.00 bucks and Lionstone can put a cute garden there for the employees that work in the building.There, the situation is solved.

By: Dragon on 12/31/69 at 6:00

"I guess what I'm saying is, don't look at it like she's being robbed or the property is being "taken" from her. She'll get her money's worth, albeit probably a little less than she's been offered already and refused."The property is being "taken". She is being FORCED to sell her property, whether she wants to or not.What if the city told you that you must sell your house because your neighbor wants to build a bigger house? If you don't want to move, too bad. Your opinion doesn't count.

By: WickedTribe on 12/31/69 at 6:00

Well that's why I don't understand it. As long as they paid me the full value (much less the kind of premium this woman was already offered), I wouldn't complain at all. I'd go buy a nicer house and use that as the down payment.

By: Dragon on 12/31/69 at 6:00

What if you wanted to stay in your own home, regardless of the price? What other property should you be forced to sell because the government wants someone else to have it?Property rights in this country are one of our most cherished rights. They should be vigorously defended.

By: Dragon on 12/31/69 at 6:00

Some of us are old enough to remember the abuses of Atlantic City, when casinos took over the city. There were small victories, such as Vera Coking and her fight against Donald Trump. Trump had to do without his limosine parking lot and build around Ms. Coking and her boarding house of 35 years.It's doubtful she would prevail in today's climate.

By: RIchardLawson on 12/31/69 at 6:00

I'll just add this little bit as food for thought. Do we really own the property? Or do we simply have a deed to it by grant of the government from generations ago. Property rights are the grant of the government passed down. There are philosophical theories that have abounded on the topic. Hobbes, Locke, Hume and others.

By: Dragon on 12/31/69 at 6:00

If property rights are grants of the government, then the government must "own" the property, acquired by force, not consent. An individual, or group of individuals, may also "own" property, as long as they can hold it against the onslaught of others.