Appeal request filed in Johnson City U-Haul case

Gary B. Gray • Jan 12, 2013 at 9:50 AM

U-Haul is not going quietly into the night.

The company’s lead counsel, Thomas Peebles, filed a motion late Friday asking Washington County Circuit Court Judge Thomas Seeley to send his ruling and opinion on to a three-judge panel of the Tennessee Court of Appeals in Knoxville.

Technically known as a motion for an interlocutory appeal, the request basically means U-Haul attorneys are betting that Seeley’s November ruling — that Johnson City has the right to possess and demolish the company’s downtown property — still has a chance of being overturned.

But the first gatekeeper will be Seeley himself. He will review the motion and has the discretion to grant or refuse the review in an appeals court. He must give permission for that to happen.

“U-Haul at this point does not have the right to appeal,” said Erick Herrin, lead attorney for the city. “But they do have a right for a jury to conclude what a fair price for that property is. I suspect Judge Seeley will want oral arguments, but I can’t be sure. I also do not know how long it will be before a decision is made on his part.”

The city has permission to possess the property, which will be incorporated into one of eight planned phases in the city’s longrange flood mitigation plan. Still, Herrin said city officials are not about to act with haste.

“We would certainly like to have the judge consider a possible appeal before the property is bulldozed,” he said. “We have said from the beginning that U-Haul is a corporate citizen, and we are not going to treat them unreasonably in our efforts to help U-Haul stay within the corporate limits of Johnson City.”

Peebles was not immediately available for comment.

The company’s basic objective since its Nashville attorney jumped in last year to fight the condemnation has been to show that the city was attempting to use eminent domain to generate tax revenue property instead of taking the property to help with downtown flood mitigation.

The city was tasked with showing that the condemnation and following flood remediation project is intended for “public use.” This is one of several Tennessee legal standards derived from the Fifth and Fourteenth Amendments of the United States Constitution.

On Nov. 29, after three arduous days of testimony, Seeley wrote in his conclusion that “Johnson City’s proposed acquisition by condemnation of the U-Haul property is for a public use.” He also addressed some highly contested points made during three days of hearings over a twomonth span by Peebles, including the fact that there was no specific design for a proposed retention basin at the site, not even “on a paper napkin,” and that it was only “up here” (in city officials’ minds).

Seeley said he felt secure in the fact that Don Mauldin, the principal engineer on the project, had proven to the judge’s satisfaction that the project was for flood mitigation, not downtown revitalization.

Peebles chipped away, attempting to show the forethought that went into the project was more about development and tax revenue than flood fixing. He also claimed it was just too easy for the city to claim another person’s or business’s property.

“If government can take someone’s property because of this kind of problem, then no one is safe,” Peebles said in court on Nov. 5 as the last day of hearings wound down.

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 chose to make a stand.

The city’s long-range flood mitigation plan 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 property at 114 W. King St. 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.

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