Last week I wrote about the plight of Nashville’s Joy Ford, the country’s latest victim of Eminent Domain abuse by government. Nashville’s Metropolitan Development and Housing Agency (MDHA) has begun legal proceedings under Eminent Domain to condemn and seize Joy’s business. It has prospered at the head of Music Row for almost 30 years. Now it is “blighted” and must be bulldozed to make room for $100 million dollars worth of development by a private firm in Houston, TX. I said last week, this case is every bit as bad as Kelo vs New London in 2005.

Possibly anticipating the nation’s outrage over Kelo, Justice John Paul Stevens, writing in his Kelo opinon, said, “… nothing in our opinion precludes any state from placing further restrictions on its exercise of the takings power.” In the aftermath of Kelo, according to Property Fairness, 27 states, including Tennessee, took Justice Stevens’ encouragement and attempted to do exactly that in 2006.

The problem, of course, is not in the attempt but in the accomplishment. The Tennessee Bar Association published an excellent analysis of Tennessee’s new law. The short version is that, in Tennessee, little was accomplished beyond political posturing. It is Tennessee’s 2006 failure to further restrict its takings power which leads directly to MDHA’s 2008 actions against Joy Ford. Speaking of the effectiveness of Tennessee’s legislation, Drew Johnson, President of The Tennessee Center for Policy Research noted,

“Tennessee’s new eminent domain law is a joke—and the joke is on property owners across the state,” … Tennesseans aren’t any more secure from having their property taken than before the law was passed.”

In particular, Johnson says that the law’s failure to more clearly define blight and its outright encouragement of eminent domain use to acquire land for industrial parks makes it particularly threatening to property owners.

Three months earlier, State Rep. Susan Lynn (TN-57), offered this evaluation of the law,

… after being worked through committee, this bill essentially guarantees very little protection for Tennesseans when it comes to eminent domain. To quote Sandra Day O’Connor in her dissent of the Kelo decision, the “specter of condemnation hangs over all property. Nothing is to prevent the State from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall, or any farm with a factory.”

The bill states that ‘public use’ shall not include either private use or direct public benefits deriving from private economic development or private commercial enterprise, including the benefit of increased tax revenue and increased employment opportunities – except in the case where eminent domain is used for; roads, public utilities, private utilities, housing authorities, community development agencies for urban renewal or redevelopment plans; or for industrial parks. Looking at that list, I really can’t think of any exception for private economic development by eminent domain that the bill leaves out.

These 2006 comments by Lynn and Johnson are prescient. Joy Ford’s property is being seized because it is deemed “blighted”. Drew Johnson noted the law’s poor definition of blight. According to Ms. Ford, her property is ruled “blighted” because, among other things, it is surrounded by a chain link, barbed-wire topped security fence and is the only building left on the development property. Yet someone, perhaps the developer, has erected a shabbier looking fence around the development site. It goes unreported that both a hotel and Ford’s building abut the same parking lot. I assume the hotel property is not part of the development and so escapes urban “blight” despite also standing alone. Either that or Ford’s building is not the only one left on the property. Further, the reason Ford’s building is the only one left is the Shoney’s and other buildings standing on the site were demolished in anticipation of the development.

I’m trying to determine if these truly are factors in the classification of the Ford’s property as “blighted”. If so, how unfair. MDHA and LionStone Group want to buy her property but Ford won’t sell. They move ahead with development plans and clear the land. This has, for them, the pleasant side effect of creating the situation needed to force Ford from her property. Had LionStone and MDHA been required to wait until the property was free and clear before proceeding, a major element of the case against Ms. Ford, that of her “blighted” property, would not exist. How does creating “blight” for personal gain become working for the good of the public?

However, it is Rep. Lynn’s comments which make me wonder if government has not stacked the deck against the citizens they are to represent. A quick read of the bill would lead one to believe Tennessee was seeking to protect Tennesseans from the exact abuse Connecticut forced on her citizens. As Rep. Lynn observes, the bill starts well, noting “‘public use’ shall not include either private use or direct public benefits deriving from private economic development or private commercial enterprise, including the benefit of increased tax revenue and increased employment opportunities …” Unfortunately, the Tennessee Legislature left a loophole in the law. While making an acceptable exemption for traditional uses of Eminent Domain such as “… roads, public utilities, private utilities …” the bill then opens the door to all manner of Eminent Domain abuse by also exempting cases “… where eminent domain is used for; … housing authorities, community development agencies for urban renewal or redevelopment plans; or for industrial parks.”

The very issue which enraged the public in the Kelo decision, taking private property for private economic development to increase the city’s tax revenue, is not forbidden to government. In fact, the mechanism for government to do precisely that is written into the law. Government is forbidden from directly taking your property to develop to improve tax revenues. But agencies created by government whose purpose is development can do so. How did such disregard for citizen’s rights become law and an example of preserving the rights of citizens?

I’d like an answer to that from the Legislature. I’m sure Ms. Ford would, too. But for her, time is running out. The Legislature ran out of town at the end of the session. Too bad MDHA is still here and they’ve given Ford until just the middle of September to vacate the premises. After that, the wrecking balls start swinging. That’s long before the politicians responsible for this mess swing back through town. Stay tuned for more on this here …

Blue Collar Muse