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Most development types are content to coexist with the legitimate pursuits of preservationists to protect bona fide historic structures in which they have a stake. Laws in Tennessee freely allow individuals or groups to apply for conservation status for buildings, homes or neighborhoods exhibiting historic characteristics before developers like hotel chains snap them up.

But in at least two recent high-profile cases in Tennessee, developers say groups have successfully applied historic designation as subterfuge in last-minute quests to fend off development deemed undesirable for reasons unrelated to preservation.

In Knoxville, owners of the Cherokee Country Club were barred from knocking down an 87-year-old Italian Renaissance Revival Villa to make room for a parking lot and golf practice area. In Nashville, residents of an affluent neighborhood adjacent to Belle Meade successfully kept a private school from demolishing eight homes it acquired to make way for student athletic fields. More worrisome to developers, however, is a governmental acquiescence to such tactics that has created a landscape ripe for the overthrow of a fundamental principle in a capitalist society—namely government’s role in protecting individual property rights.

A taste of Ashe
In 1999, Cherokee Country Club, a haven for Knoxville’s wealthiest and most influential denizens, purchased for just over $1 million the J. Allen Smith House of Lyons View Pike in Knoxville, a home built in 1915 by the founder of the White Lily Flour Co. In February 2002, the club applied for demolition permits to knock down the home. The previous month, however, unbeknownst to club officials, Knoxville Mayor Victor Ashe had filed an application with the city aimed at designating the grounds of the mansion an anchor for an historic district. Ashe forged the district by grafting onto it two modern homes devoid of any historical significance located across the street from the mansion. Given that the city of Knoxville under Ashe had aggressively supported historic preservation efforts and legislation to enable it, the city had in place an ordinance calling for a moratorium on all demolitions in areas proposed for historic overlay status. As such, the club was stunned to find itself unable to obtain demolition permits for its own property. Ashe subsequently used the city’s commission structure to get an overlay in place. Attempts by club officials to use the courts to overturn the city’s action received a final crippling blow late in 2003 when a Court of Appeals ruling barred demolition of the mansion. Ashe gleefully told the Knoxville News-Sentinel the ruling amounted to a “tremendous victory for cities’ efforts to promote historic preservation” and declared “had I failed to act…we would already have a new parking lot on Lyons View Pike.” Speaking to the Metro Pulse, Cherokee attorney Charles Wagner III characterized the overlay as a “taking” of the country club’s land.

Schoolyard antics
Over the past decade, Nashville private school Harding Academy has been purchasing homes in the Belle Meade Links neighborhood with the intention of someday demolishing the homes to create athletic fields (sans lights) for its growing student body. The school purchased the last home, one with a market value likely in the $400,000 to $500,000 range, for $1.02 million. As the school neared its stated goal of acquiring the eight homes, a group of residents in the neighborhood began concurrently considering the application of a historic overlay to stave off the school’s expansion.

In 2003, with all its properties in place and the threat of a conservation overlay application in the works, the private school moved forward with its request for demolition permits. Without an overlay in place to bar the planned demolition, permits were granted. Days later, however, Metro Nashville’s legal team, spurred on by Metro Mayor Bill Purcell, a staunch supporter of neighborhoods, revoked the permits. The basis of their argument was the “pending legislation doctrine,” an unprecedented legal theory in Tennessee built on the premise that plans in place among neighborhood residents for a conservation overlay constitute sufficient reason to put a freeze on planned demolition.

In a subsequent lawsuit, Harding attorneys argued that Metro was “vindictively preventing the use of the property for the purposes publicly announced by the school” and that Metro was “attempting to enact, at the last possible moment, legislation to frustrate that intention.” The courts played hot potato with the issue, ruling that Harding Academy had not exhausted all avenues of administrative appeal within the Metro government commission structure to merit an immediate court ruling. While Harding pursued those avenues, neighborhood residents had ample time to pursue and receive historic overlay status through the city’s commission structure.

Will of the people?
Government dictates to property owners what are and are not appropriate uses of property through generally accepted zoning designations. Does the government’s use of an historic designation to wrest control from property owners represent a new threat to the protection of individual property rights, a cornerstone of prosperous capitalist society?

Tom White, 30-year legal counsel to the Home Builders Association of Middle Tennessee, writes in a recent Nashville Bar Association newsletter that an individual’s right to determine the use of his or her own property “has recently been trampled on when it became politically correct to oppose the owner’s proposed use of his property.” He continues, “There is a fundamental lack of fairness in allowing individuals who do not own certain property to force their interests or personal preferences on the owners of property.” White concludes opponents of projects like Harding Academy’s athletic fields must realize their limitations and “at a minimum be willing to compensate the owner of the property if they desire to have a voice in the use of the property.”

Nashville attorney Bob Tuke counter-argues in the newsletter that historic overlay zoning is “no more onerous than other forms of zoning because it exists only by ordinances passed by duly elected representatives.” According to Tuke, if citizens object to any form of zoning they have recourse through their government representatives to amend or abolish the ordinances, or, “failing that, they may elect different representatives.”

What will remedy the current impasse? Some developers predict a growing trend of making as a condition of their purchase of property that sellers perform demolition prior to sale. The equivalent of fighting fire with fire, it’s a proposition analogous to developers who make as a condition of sale that the seller first acquire the desired zoning designation a developer needs but will face opposition trying to get himself.

As a more direct resolution, however, property owners in both the Knoxville and Nashville cases hope the courts will offer some recourse. Harding Academy awaits a spring hearing in its attempt to acquire demolition permits retroactively. As for Cherokee, country club owners have petitioned the Tennessee Supreme Court to hear their case. That’s unlikely, as the Court rarely takes up issues related to land use. However, given the growing controversy, and the fact that codes and regulations have proven insufficient tools in balancing the interests of preservationists, property owners and city officials, perhaps it is time for the Supreme Court to enter the fray.

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