Attorneys for both Johnson City and U-Haul will begin the second round of a legal battle in Washington County Circuit Court today in front of Judge Thomas Seeley, who will determine whether the city has the right to condemn the corporation’s downtown site.
U-Haul is contesting the move, claiming the property is not being taken under eminent domain for the public good by easing flooding downtown but for private economic development and commercial enterprise.
Tuesday’s arguments began slowly, with opening statements by the attorney for the city, Erick Herrin, and U-Haul’s lead counsel Thomas Peebles with Nashville’s Waller Lansden Dortch & Davis, with Peebles diving right in and calling the city’s Revitalization Implementation Plan the “bastard child” of the city’s Downtown Storm Water Task Force.
The day ended with Public Works Director Phil Pindzola on the stand explaining why he had misled attorneys by stating in his deposition that no permits for the redirection of water under and near the U-Haul site were necessary.
“You sort of threw me for a loop,” Peebles said to Pindzola. “When I took your deposition — to use the lines of an old movie — you said ‘we don’t need no stinking plans.’ But you’ve testified today there is that need.”
At issue — which to this point has caused the biggest stir in the courtroom — is the Tennessee Department of Environment and Conservation’s Aquatic Resource Alteration Permit. TDEC requires any entity wanting to make an alteration to a stream, river, lake or wetland to first obtain a water quality permit.
“I haven’t had an experience in which an ARAP was denied,” Pindzola said.
“Do you have to have (condemn and possess) the U-Haul property to get rid of the box culvert underneath it?” Seeley asked Pindzola.
“Yes,” Pindzola answered.
“So TDEC is in charge of water flow and you have not applied for this permit?”
The answer is no.
It also came to light that TDEC rejected the city’s original plans to build a sump, or pond, on Founders Park similar to the one it wants to build on the U-Haul site. In the end, this procedural step may prove benign, but it did serve to shine a glaring light on it when he apologized in open court for misleading attorneys.
Johnson City had worked for nearly one year to get U-Haul to accept an $820,000 offer for the property, and to undergo negotiations in which the city would help the company relocate within Johnson City. In late July 2011, commissioners voted 4-1, with Commissioner Clayton Stout voting in opposition, to condemn 114 W. King St.
Long-established plans call for a large detention pond on the property to capture overflow when King Creek floods. The long-range goal is to turn this area of downtown into what is being called the Event Commons, which would be traversed by a newly created path for King Creek running between Boone and Roan streets.
Meanwhile, the plaintiff’s overall strategy Tuesday was show the city was aware, and had been planning for the U-Haul property (identified in local circles as part of the Event Commons) to be developed from its downtown revitalization plans and as a money-making move — not from a flood mitigation project.
“There’s no question Johnson City has the right to eminent domain, and there’s no question there’s major flooding here,” Peebles said. “But the title on the (stormwater) master plan does not mention flood mitigation. It is a revitalization implementation plan. Not one place on this plan does it say ‘flood’ or ‘flood mitigation.’ ”
He also cited the lack of plans — specific plans on paper — showing the dimensions of a pond or sump any of the proposed sites.
Peebles and co-counsel Mark Bell produced a number of documents, including renderings, designs and text from the Washington County Economic Development Council’s website, the Johnson City Development Authority’s charter and city generated documents.
In each case, they pointed to what they believed was a lack of mention of flood mitigation, and instead, a laundry list of redevelopment plans.
Peebles put Shannon Castillo, WCEDC director of redevelopment, on the stand and asked why Lamar Dunn & Associates — the company heading the city’s $30 million long-range stormwater plan — appeared on their website as a “strategic partner.”
Herrin reminded the court the $6 million phase of mitigation involving U-Haul has three parts. He also made very clear that the city’s overall plan did not necessarily hinge on the U-Haul site.
“These are sequences,” Herrin said. “The plaintiff is trying to stretch the idea that economic development is the driving factor for the changes, which includes the three initial phases: Founders Park, this phase and the King Creek project. We are not picking and choosing properties.”
City Manager Pete Peterson also took the stand and recited a history of the city’s flooding problems.
Peebles quizzed him on whether the city has or plans to spend revenues from stormwater fees on anything other than flood mitigation.
“The City Commission has not voted to fund anything other than flood mitigation,” Peterson answered.
Peebles then asked that when flood mitigation work was completed — especially at the U-Haul site — if a developer would be allowed to step in and do as they desired.
“Absolutely not,” Peterson replied. “The main purpose is flood mitigation, but the city is eyeing economic development because of the reduction in flooding. But to say a particular piece of this is going top give us the (remediation) results we want would be an incorrect statement. It’s kind of like a puzzle; we’re buying a piece at a time.”
Peebles said he didn’t consider Peterson a flood mitigation expert and that he would rather hear from an engineer. Don Mauldin, Lamar Dunn & Associates’ executive vice president, is expected to testify today.