Judge’s decision on U-Haul condemnation nears
Gary B. Gray
Nov 24, 2012 at 9:34 PM
Three long days of argument in Washington County Circuit Court regarding the legality of Johnson City’s condemnation of U-Haul’s downtown property for use as a tool in the city’s long-range flood mitigation plan has passed, and the final pleadings are now in Judge Thomas Seeley’s hands.
His written ruling could come tomorrow; it could be a month.
Throughout the process, Seeley has been extremely “tuned in.” Other than an occasional ruling on whether the particular wording of a question was appropriately phrased, he has listened intently, looked directly at witnesses and patiently allowed attorneys more than enough time to mark their territory, as it were.
He also asked questions.
Some were relatively benign, including requests for more detailed information on culverts or retention and detention ponds. But on the third and final day, as the hearing neared its end, he had one last simple but revealing question for Don Mauldin, executive vice president of Knoxville’s Lamar Dunn & Associates and lead consultant/engineer of the city’s long-range plan: “Is there any way you can affect downtown flooding without taking the U-Haul property?”
“Yes,” Mauldin answered without hesitation. “We’d have to acquire other properties. Quite frankly, if the City Commission had voted to spend more money, I’d be working on a design to divert King Creek through downtown.”
Seeley went silent, and closing arguments followed.
The fact is, the city’s flood mitigation plan, in its totality, is estimated to cost about $30 million. So far, land acquisition, environmental studies, design costs and the in-house McClure Street project near U-Haul’s location to make way for three of eight planned phases have been paid for by taxpayers through stormwater fees.
In June, the city issued about $6 million in debt to help pay for the first three phases, a debt to be repaid by taxpayers. The first three phases include Founder’s Park, the long-awaited $4.5 million project along West State of Franklin; the King Creek retention basin, which includes a swath of land where U-Haul now sits, where Cutshall’s Automotive has been demolished and a site is being vacated by WW Cab Co.; and a recently demolished area off Market Street on which King Creek will be opened up and a retention basin will be built.
U-Haul’s lead counsel Thomas Peebles argued that the city’s main goal is to use eminent domain to generate tax revenue instead of taking the property to help with downtown flood mitigation and that Johnson City is not out to serve “the public good” — a defining legal term when it comes to condemnation.
City officials, and attorney Erick Herrin, have consistently testified that the long-range plan originated nearly 10 years ago when heavy downtown flooding prompted the formation of a Storm Water Advisory Task Force and, later, the Downtown Storm Water Task Force. The result was the targeting of each major drainage basin downtown and in 2007 the establishment of a stormwater fee to help pay for fixes.
But from the beginning, these same city representatives have always acknowledged the plan is meant not only to move floodwaters away from downtown but also to entice residents, visitors, developers and private investment. However, the equally consistent remarks have been that flooding was a problem, and that it was a problem that needed tending to.
As Herrin put it to Seeley, “If we widen a road, it makes it more attractive to businesses. But that occurred because you built the road.”
Johnson City had worked for more than a year to get U-Haul to accept an $820,000 offer for the property, and to undergo negotiations to help the company relocate within Johnson City. But unlike other downtown property owners, U-Haul did not budge. Instead they filed a suit to strike down the city’s petition for condemnation.
Roughly 16 months have passed since the City Commission voted to condemn and demolish the property. The vote was 4-1. Commissioner Clayton Stout opposed the move, saying he could not in good conscience play a part in closing any established Johnson City businesses, especially one that was in good standing and providing service to citizens.
“My ultimate goal was that U-Haul would have wanted to negotiate,” Stout said Friday. “But ultimately, I respect their right as a business. I also was concerned about legal ramifications — that it might turn into a long, drawn-out court battle like we have now. I sit in these meetings, and I still don’t hear of any alternative plans. I would have loved to have a settlement and not go through this.”