Wednesday, February 3, 2010

A bone picked

Perpetuating the pretense about the Public Promenade

I said previously that Memphis Magazine (February issue) has blockbuster article about the riverfront that should be read by everyone, but that I do have a couple bones to pick.

Here's the main one. Branston opines:
4. Friends for Our Riverfront must compromise on the Promenade."

It's based on a mistaken premise that is, unfortunately, widely believed: That the Overton descendants actually have the legal standing to negotiate a compromise.

They only have the standing to block an illegal misuse of the Public Promenade easement, which they did 50 years ago, and were sustained by a Tennessee Supreme Court decision. They don't have the power to rewrite the easement, whether they want to or not.

Nevertheless, it is very useful (for the City's purposes) to allow the misunderstanding to continue, and even to encourage it. I explained why in a letter to the Commercial Appeal published a year ago. Continues...

At the Rotary Club luncheon Jan. 13, Mayor Willie Herenton was asked about the status of the riverfront. In response, he fibbed:
"The matter of ... the Overton heirs ... I don't know when that will ever be resolved satisfactorily, in terms of some of the real estate that the Riverfront Development is looking forward to for public purposes. That still remains an issue which we're still no closer to."

The truth is that the city hasn't held any meaningful negotiations with the descendants of the Proprietors (Memphis founders) in at least six years -- if ever.

Why? First, the city's lawyers have long known that the descendants don't have the power to agree to a modification of the terms of the Public Promenade easement.

Second, the city doesn't even want a modified easement. It wants to own the land outright, so it can lease or sell it to developers.

The city paid thousands of dollars to a powerful Washington law firm to research how to accomplish this goal. By May 2003, city lawyers had concluded that the way to do it was by eminent domain. In other words: They want to condemn the Public Promenade and eliminate the easement.

Why does Herenton (helped by this newspaper -- see "Time to move on the Promenade," Aug. 17, 2008) continue to perpetuate the myth that "Overton heirs" are obstacles to progress? Because taking property by eminent domain could inspire a public backlash.

The myth is part of a deliberate public relations strategy to demonize the "Overton heirs" -- the Promenade's supposed owners -- so that when the city goes to court to condemn the Promenade, the public has little or no sympathy for the heirs' loss. The city will claim, of course, that when the heirs wouldn't cooperate, officials had no choice but to take it by eminent domain.

But the descendants' "ownership" is the biggest fib. It's a legal technicality. As long as the property is subject to the easement, the descendants own nothing of any real value. The value is in the right to use the Promenade, which already belongs to the general public.

What Herenton hopes citizens never realize is that the city would be taking their property by eminent domain so it can sell, lease or even give the land to private commercial interests.

This above is as succinct an explanation of a very dense and complicated subject as it possible to write. In the interest of brevity, I simplify some wrinkles, but I promise you that they don't change the conclusion:

There is no practical way to modify the easement to allow the City to only partially misuse the Promenade -- just as there is no way to be just "partly pregnant" or "a little bit dead." The city's attorneys want to blow away the easement entirely, through eminent domain.

But here's the problem. The bulk of the Promenade's value already belongs to the citizens of Memphis, for public use. The City would be using eminent domain to take that use and value away from the public and hand it over to commercial developers.

After the national outcry over the Supreme Court's Kelo decision in 2006 (involving some private property owners), no city would want to invite the outrage that might result if the general public realized that the property was been taken from them.

This is why there has been a calculated, multi-year strategy of:

1. avoiding the mention of eminent domain until the time comes,
2. perpetuating a myth that the land belongs to some "Overton heirs,"
3. painting those "heirs," sotto voce as uncompromising obstructionists,
4. so that the general public has no sympathy left when the City pulls the trigger.

With all due respect, Branston's opinion innocently plays right into the City's hands, and helps shorten the time until the City pulls the trigger -- which they have long had the paperwork ready to do.

If you do not believe I know what I'm talking about when I ascribe these nefarious motives to the City, then please read the minutes of the RDC's executive committee from back in 2003, obtained through Open Records request.

Do you remember those three supposed "public-input" meetings on the Promenade? They had a different purpose entirely: To help lay the groundwork (and seduce the public) in preparation for an eminent domain lawsuit. Here's what the RDC minutes say [my emphasis]:
Ms. Colleta who will coordinate the public meetings for the project outlined the plans for the process. In anticipation of condemnation proceedings, the first step will be to meet with the lawyers to understand what the final product must look like in order to demonstrate that the Promenade property will be used for public purpose. On receipt of the Urban Land Institute report, which highlights the importance of the Promenade to riverfront development, three public meetings will be held:

1. A walk around the site laying out challenge and inviting questions and discussion.
2. A workshop where participants will help design the answers
3. A presentation to the public of a final product

Remarkable candor. It seems that the lawyers had far more input into the design than the public.

But that was then and this is now. The RDC now claims it doesn't have an executive committee, so they don't have to expose their decision-making to the public and bloggers.

Has the Promenade situation changed since 2003? No. When I wrote that letter to the CA just a year ago, Herenton was still avoiding the words eminent domain, and pretending that the "Overton heirs" were the obstacle to using the land for some "public purposes".

The truth: He knew exactly how the problem could be solved and how commercial developers would get their hands on the Public Promenade for condos and hotels. As he spoke, the papers for the eminent domain lawsuit were sitting on City Attorney Jefferson's desk.

I can assure you that the RDC hasn't forgotten the Promenade. Benny Lendermon has said so. Local developers have already drawn up pictures of what they'd like to develop on it. It's likely to be the next project after Beale Street Landing.

I also urge you to read a letter to City Council written by famed downtown developer Jack Belz, who was the one developer in Memphis to speak out against the RDC's Promenade Plan. His conclusion? Unwise, both financially and economically. (So much for those "economic development" claims.)

He further said:
Our community has only one front door and that is downtown. Our downtown has only one riverfront. The public promenade set aside by our founding fathers is the only publicly owned property on our city's high bluff that will ever exist. We must not let short term pressures override the long term best interest of our community.

Meanwhile, the Public Promenade continues to be held hostage by the City, the RDC, and its Promenade Land Use Plan, so we can't do anything with it -- even if our ideas would be fully compatible with what the founding founders really wanted.

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