The legal issues

The main news story for Thursday June 23, 2005 was the U. S. Supreme Court’s 5-4 decision in the Kelo case holding that a governmental body can use eminent domain to take a private citizen’s home and turn it over to business interests under the guise of economic development.

As sad as that news is, the Kelo decision does not affect the citizens of Memphis with respect to the Riverfront Development Corporation’s plan to commercially develop the Public Promenade. That issue has already been decided by the TN Supreme Court. In 1965 the court held that the city only has an easement to the property and cannot transfer any interest in it to a private developer. [1] Furthermore, in 1867 -100 years earlier - the court held that the Promenade could not be condemned.[2]

When the owners of the land where Memphis now sits laid out tracts to be sold for homes and businesses, they set aside the land along the riverfront as a public common space for all to use and enjoy. Many public spirited developers do this today. It is similar to a conservation easement.

The elected representatives of the City of Memphis are the trustees of this precious gift to all citizens. They’re supposed to protect it like any other public asset. Unfortunately, they have attempted to delegate their responsibilities to the Riverfront Development Corporation which wants to try to break the easement and turn the Promenade over to private developers.

The RDC executive committee minutes of May 23, 2003 state:
Mr. Lendermon reported that the two major issues in regard to the Promenade are the legal strategy and the public process. The City … is taking the lead in and paying for the legal strategy…. In regard to the public process, since condemnation issues will be involved, public relations must be carefully planned.

A Jan. 17, 2009 letter to the editor by Michael Cromer, dispels myths about the Overton "heirs", explains clearly how each citizen of Memphis benefits from an undivided interest in the Public Promenade as protected by the easement of 1819, and exposes that it is your property the City would be trying to take by eminent domain.

The Public Promenade is protected by the Tennessee Supreme Court’s prior decisions involving the property and the Tennessee Constitution. As Chip Mellor, president of the Institute for Justice said, “The majority and the dissent (in the Kelo case) recognized that the action now turns to state supreme courts where the public use battle will be fought out under state constitutions. … Today’s decision in no way binds those courts.”

The Tennessee Supreme Court has consistently ruled that it may impose higher standards and stronger protections than those set by the federal courts in interpreting parallel provisions of the federal constitution.[3]

We believe that if the RDC attempts to condemn the Public Promenade, the Tennessee judiciary will reject the U.S. Supreme Court’s reasoning in Kelo and follow the reasoning of the Michigan Supreme Court in Hathcock.[4] The full text of the Kelo opinions can be found at the link below.[5]

Notes and further reading:

1. City of Memphis v. Overton, 392 S.W.2d 98 (Tenn. 1965)

2. Memphis Freight Co. v. Mayor & Aldermen of Memphis, 44 Tenn. 419 (Tenn. 1867)

3. Miller v. State, 584 S.W.2d 758, 760 [5] (Tenn. 1979); and Planned Parenthood v. Sundquist, 38 S.W.3d 1, 14-15 [8] (Tenn. 2000)

4. Wayne County v. Hathcock, 684 N.W. 765 (Mich. 2004)

5. Kelo v. New London (04-108) 268 Conn. 1, 843 A. 2d 500, affirmed.