Are Knoxville / Knox County guilty of extortion? You be the judge.

Are Knoxville / Knox County guilty of extortion? You be the judge.

Copyright © 2004 by Ned D. Ferguson, R.L.S. This writing is the opinion of the author. Nothing herein constitutes legal advice. If you need legal advice, you are advised to seek out a competent attorney.

Let me say at the outset that I do not have an antagonistic relationship with any branch of or individual with the Knoxville / Knox County Government (henceforth collectively referred to as “Knox County”). In fact, I have a good, professional relationship with these people. As a land surveying professional, it is constantly necessary to guide developments, plans and plats through the approval process. We do everything we can and must do to meet the regulations and requirements of Knox County; however, as a citizen this issue has been sticking in my craw for quite some time. For me the issue at hand is both a philosophical and a moral one. It has to do with the taking of private property by a government entity without just compensation, in clear violation of the Fifth Amendment’s Takings Clause. In Knox County, besides not being compensated for your property, you must pay for the “privilege” of giving it up.

Extortion defined –

1. Illegal use of one’s official position or powers to obtain property, funds, or patronage.

The American Heritage® Dictionary of the English Language, Fourth Edition
Copyright © 2000 by Houghton Mifflin Company.
Published by Houghton Mifflin Company. All rights reserved.

2. That which is extorted or exacted by force.

Webster’s Revised Unabridged Dictionary, © 1996, 1998 MICRA, Inc

Private Property defined –
The term property can have a very broad definition. For simplicity’s sake we will apply the definition to real property. Ownership of real property involves distinct and separate rights, which include the right to sell the property, to use it in various ways, to lease it, to give it away, or to exercise any one or more of these particular rights. It includes the rights to farm, hunt, timber harvest, build structures, subdivide, develop, cut the grass or hay or any other use that is within the bounds of the law. This ownership is often compared to owning a “bundle of sticks.” One essential right in this bundle of sticks is the right to exclude others. As a property owner, you have the right to control who can use, enter upon, and enjoy your private property. One can retain all the sticks, sell or give some away, or divest oneself of all the sticks. When a person owns all the rights, (sticks) he is said to own fee simple title. When he owns only some of the rights, he has a partial interest. The rights can be sold, given away individually or in groups, valued as a whole or separately.

Before we can really delve into the subject, we need to get some background on Knox County MPC (Metropolitan Planning Commission) practices. I think it is fair to say these are also practices that are being engaged in throughout the State of Tennessee and the rest of the country. This fictional, everyday example will be illuminating:

Betsy’s Case:

Betsy owns 3.5 acres of land in Knox County. She wants to add a screened-in porch onto the back of her house. She has saved for a long time to be able to afford this improvement, and is eagerly awaiting the day when she can enjoy evenings overlooking her quiet and expansive back yard. She hires a contractor to perform the work. The contractor informs her that she must obtain a building permit before he will begin work on her house. Betsy is anxious to get started. She goes to the Codes and Enforcement department with a simple plan, showing the addition, to ask for a building permit. The person at Codes and Enforcement looks her property up on the computer and notices that she was conveyed the property by deed, but there is no plat of record.

“You must have a plat of record,” she is told.

“How do I get that?” Betsy asks.

“First you must obtain a survey by a registered land surveyor. After the surveyor performs the survey, he will prepare a plat suitable for recording in the county Register’s office. The plat needs to be reviewed and approved by MPC before it can be recorded”

“Oh,” says Betsy. She is somewhat taken aback. “How long does this take?”

“Not long” the person at the desk replies, “It is a simple process.”

Betsy is unsure of herself and a little confused. She goes home and starts looking up the names of land surveyors in the phone book. It is around late spring or early summer. Surveyors are very busy this time of year. The first surveyor Betsy calls says that they are “swamped,” it will be three to four weeks before they can come out. She does not want to wait that long. She continues down the list in the phone book. She eventually talks to a surveyor who recommends another surveyor capable of doing a good job. She calls the recommended surveyor who says they can get to the job the same week.

“Whew!” exclaims Betsy. “How much will the survey cost?”

“About $1,200.00,” explains the surveyor.

Betsy is stunned and falls into silence. After a moment, she says, “But I only own 3.5 acres.”

“That’s true,” explains the surveyor, “but the cost of doing the survey also includes performing deed and records research, obtaining MPC staff approval, going to the planning commission meeting, getting the necessary signatures on the plat for approval, obtaining a recording set at the printing company, and recording the plat in the County Register’s office.”

“Oh, I didn’t realize it was so complicated,” Betsy says.

“Yes, it is.” The surveyor continues, “I also need to tell you that the estimate does not include any application fees, subdivision or zoning variances that may be required, and you will need to contact the health department on your own.”

“What subdivision or zoning variances? Why do I need to contact the health department?” Betsy is getting bewildered. She struggles to write down everything the surveyor tells her.

The surveyor explains that the property will have zoning setback lines. If a building violates any of these setback lines, a zoning variance will be required. This scenario will cost several hundred more dollars and may add three to six weeks to the time it takes to complete the process. He explains further that the health department will need to come out to inspect the existing drainfield and ensure that it is functioning properly. Why? Their signature is also required on the plat; they will not sign without doing the inspection. How much does the health department inspection cost? The surveyor explains that the health department’s fee schedule just went up. It was $40, but the fee has recently increased to $200.

The surveyor comes out in a few days as promised. After the survey is performed, it is determined that a detached garage is located 9.5 feet from the side boundary line. MPC requires a ten foot utility and drainage easement to be dedicated inside all boundary lines. This means the owner will need to request a subdivision variance to exempt the garage from the easement at an additional fee. This also means that the garage violates the county zoning ordinance. A zoning variance will be required. The surveyor will need to go to an additional meeting of the Board of Zoning Appeals (BZA).

A brief rundown of the fees involved follows:

MPC review fee with variance:
Recording set fee:
Registration Fee:
BZA Fee:
Health Department Fee:
Surveyor’s Fees to perform the survey including compensation time involved in attending two meetings, obtaining various signatures and navigating through the approval process:
Application for building permit:
Total cost to client:

The survey is now complete and it is time to prepare a plat for submittal to MPC. The surveyor asks to meet with Betsy to go over the findings. He explains about the need for the subdivision and zoning variances, and the additional fees involved.

“How long will all this take?” asks Betsy. The surveyor explains that the MPC application deadline is 32 days before the meeting. The deadline for the June meeting has just passed. “However, if you are really in a hurry, you can still get in on the June meeting if you are willing to pay a double fee to do so. This is called the ‘double fee, extended deadline,’” explains the surveyor. Betsy has had it with fees. She says to forget it; she will wait until the July meeting to be heard.

“Very well, we need to go before the BZA anyway and we can use the time to get that done. There is one final item I need to talk to you about,” the surveyor says.

“What’s that?” asks Betsy.

The surveyor goes on to explain that Knox County has developed what is called “The Major Road Plan.” All plats being recorded in Knox County must conform to this plan unless a variance is granted. (711 plats were recorded in the Knox County Register’s office in 2003). The surveyor continues to explain that Betsy’s deed description conveys property to within 20 feet from the center of the road. Betsy’s property is located on what has been designated a “Major Arterial Road.” The county requires a 100 foot right of way along this particular stretch of road, 50 feet from the centerline on each side. This means Betsy must give up an additional 30 feet of her property along its entire length adjacent to the road.

Betsy wants to cry. All I want to do is build a screened-in deck, she thinks to herself. Her project has been delayed two months, she has been charged $1,847 in unanticipated fees, and now she is being asked to give 30 feet of her property to the county.

“Are you sure this is necessary?” Betsy asks.

“Well, you could request a variance to the regulation,” the surveyor explains, “but those requests are almost never granted unless you can prove a legitimate hardship. I think it would be wasting your time and further delaying your project.”

“What if I refuse to give up my property?” asks Betsy.

The surveyor explains that Betsy’s refusal to dedicate her property to the county means that the plat will be denied and, by extension, so will her building permit. Betsy will not be able to build her new deck. Betsy is very angry at this point. She is furious to be held hostage in this way. “Someone should do something about this,” she says, “It’s not right.” But in the end, she relinquishes because she feels absolutely powerless to do anything else.

I have invented the above example based on my years of experience in the Knoxville area, but believe me when I tell you this is not an unusual occurrence or an exaggeration. Everything in the example can and does happen in Knox County on a regular basis. If you have lived through it, you are no doubt nodding your head in agreement. If you have been able to avoid a similar experience, consider yourself lucky.

Only once or twice in my career have I seen a client refuse to go ahead with plans because of the Knox County demand for right-of-way dedication. Betsy’s plan could have been to do any number of other things; build a house, put a trailer on the property, develop the land, install a swimming pool, or give a portion to a neighbor or relative. The result would still be the same. Knox County government will deny permits or services until they get what they want.

The Major Road Plan was adopted by Knox County MPC on June 13, 1996. Quoting from the Major Road Plan document:

“The new plan views each road as part of the overall transportation system. It assigns right-of-way requirements based on anticipated development, future road improvements, traffic counts, and policies and goals contained in adopted long-range plans. In many cases, this change reduces the amount of land reserved for rights of way compared to the previous plan.”

Notice the use of the words “anticipated,” “future,” and “long range.” There is no immediate need, but only the possibility that one may arise in future years. Knox County is effectively creating a “rainy day” property bank, with property taken from its citizens.

Notice also the new plan in “many cases” reduces the amount of required dedication from the previous road plan, inferring that the county is guilty of having taken property in the past for which there was no real need.

Make no mistake, if Knox County government wanted a portion of someone’s property for some immediate purpose, it would have to be taken through eminent domain, meaning the property owner would be compensated for their loss as prescribed by law. However, the need for permitting is being used here as leverage to circumvent that process. Denial is the weapon.

Citizens residing inside the City of Knoxville may receive a double slap in the face. Let us suppose that Betsy’s property is located inside the city limits. Now let’s suppose that, within the 30 foot strip being taken by the city, there is an existing three foot high retaining wall. To gain approval from the city, Betsy must now sign a hold-harmless agreement, relieving the city of all liability for damages that may occur as a result of the wall. In other words, the city is taking her property but Betsy must still assume the liability for what happens on it! This holds true no matter who built the wall. Call me crazy, but there is something really twisted about that. Knox County has no such requirement yet.

It will be instructive at this point to look at a prior case, decided by the U.S. Supreme Court, June 24, 1994, which has many similarities to our topic. It is the case of Florence Dolan, Petitioner v. City of Tigard, 512 U.S. 374 (1994). I will summarize the case in this condensed version.

Florence Dolan, Petitioner v. City of Tigard, 512 U.S. 374 (1994)

Florence Dolan owns a plumbing and electric supply store located on Main Street in the Central Business District of the city of Tigard, Oregon. The store covers approximately 9,700 square feet on the eastern side of a 1.67-acre parcel, which includes a gravel parking lot. Fanno Creek flows through the southwestern corner of the lot and along its western boundary. The year-round flow of the creek renders the area within the creek’s 100-year floodplain virtually unusable for commercial development. The city’s comprehensive plan includes the Fanno Creek floodplain as part of the city’s greenway system.
Petitioner Dolan applied to the city for a permit to redevelop the site. Her proposed plans called for nearly doubling the size of the store to 17,600 square feet and paving a 39-space parking lot. The existing store, located on the opposite side of the parcel, would be razed in sections as construction progressed on the new building. In the second phase of the project, the petitioner proposed to build an additional structure on the northeast side of the site for complementary businesses and to provide more parking. The proposed expansion and intensified use are consistent with the city’s zoning scheme in the Central Business District.

The City Planning Commission (Commission) granted the petitioner’s permit application subject to conditions imposed by the city’s Community Development Code (CDC). The CDC establishes the following standard for site development review approval:
“Where landfill and/or development is allowed within and adjacent to the 100-year floodplain, the City shall require the dedication of sufficient open land area for greenway adjoining and within the floodplain. This area shall include portions at a suitable elevation for the construction of a pedestrian/bicycle pathway within the floodplain in accordance with the adopted pedestrian/bicycle plan.”

Thus, the Commission required that the petitioner dedicate the portion of her property lying within the 100-year floodplain for improvement of a storm drainage system along Fanno Creek and that she dedicate an additional 15-foot strip of land adjacent to the floodplain as a pedestrian/bicycle pathway. The dedication required by that condition encompasses approximately 7,000 square feet, or roughly 10% of the property. In accordance with city practice, the petitioner could rely on the dedicated property to meet the 15% open space and landscaping requirement mandated by the city’s zoning scheme. The city would bear the cost of maintaining a landscaped buffer between the dedicated area and the new store.

The petitioner requested variances from the CDC standards. Variances are granted only where it can be shown that, owing to special circumstances related to a specific piece of the land, the literal interpretation of the applicable zoning provisions would cause “an undue or unnecessary hardship” unless the variance is granted. Rather than posing alternative mitigating measures to offset the expected impacts of her proposed development, as allowed under the CDC, the petitioner simply argued that her proposed development would not conflict with the policies of the comprehensive plan. The Commission denied the request.

Writing for the majority, Chief Justice Rehnquist states:

The Takings Clause of the Fifth Amendment of the United States Constitution, made applicable to the States through the Fourteenth Amendment, provides: “Nor shall private property be taken for public use, without just compensation.” One of the principal purposes of the Takings Clause is “to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Without question, had the city simply required petitioner to dedicate a strip of land along Fanno Creek for public use, rather than conditioning the grant of her permit to redevelop her property on such a dedication, a taking would have occurred. Such public access would deprive petitioner of the right to exclude others, “one of the most essential sticks in the bundle of rights that are commonly characterized as property.”

The city required that petitioner dedicate “to the City as Greenway all portions of the site that fall within the existing 100-year floodplain [of Fanno Creek] . . . and all property 15 feet above [the floodplain] boundary.” The city relies on the Commission’s rather tentative findings that increased storm water flow from petitioner’s property “can only add to the public need to manage the [floodplain] for drainage purposes” to support its conclusion that the “requirement of dedication of the floodplain area on the site is related to the applicant’s plan to intensify development on the site.”

The city made the following specific findings relevant to the pedestrian/bicycle pathway:

“In addition, the proposed expanded use of this site is anticipated to generate additional vehicular traffic thereby increasing congestion on nearby collector and arterial streets. Creation of a convenient, safe pedestrian/bicycle pathway system as an alternative means of transportation could offset some of the traffic demand on these nearby streets and lessen the increase in traffic congestion.”

The Chief Justice continues:

The question for us is whether these findings are constitutionally sufficient to justify the conditions imposed by the city on petitioner’s building permit. If petitioner’s proposed development had somehow encroached on existing greenway space in the city, it would have been reasonable to require petitioner to provide some alternative greenway space for the public either on her property or elsewhere. But that is not the case here. We conclude that the findings upon which the city relies do not show the required reasonable relationship between the floodplain easement and the petitioner’s proposed new building.

A number of state courts have taken a position requiring the municipality to show a “reasonable relationship” between the required dedication and the impact of the proposed development. Typical is the Supreme Court of Nebraska’s opinion in Simpson v. North Platte (1980), where that court stated:
“The distinction, therefore, which must be made between an appropriate exercise of the police power and an improper exercise of eminent domain is whether the requirement has some reasonable relationship or nexus to the use to which the property is being made or is merely being used as an excuse for taking property simply because at that particular moment the landowner is asking the city for some license or permit.”

Thus, the court held that a city may not require a property owner to dedicate private property for some future public use as a condition of obtaining a building permit when such future use is not “occasioned by the construction sought to be permitted.”

The city’s goals of reducing flooding hazards and traffic congestion, and providing for public greenways, are laudable, but there are outer limits to how this may be done. “A strong public desire to improve the public condition [will not] warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”

The similarities to Knoxville / Knox County practices are striking. The Supreme Court has held that such “takings” are in fact unconstitutional and illegal, yet Knox County continues the practice in contravention of that fact. A minority of people (those seeking permits or approvals) are bearing a burden that should rightly be borne by the whole public.

Consider the following scenario. Mr. Parsley, Mr. Sage and Ms. Rosemary are neighbors. Mr. Sage lives between Parsley and Rosemary. Knox County has identified an immediate need for a road project requiring the road to be widened. The existing right-of-way is not sufficient for this need. A survey of the proposed right-of-way shows that property must be bought from Parsley and Rosemary to facilitate the project. The survey also shows that no property needs to be purchased from Mr. Sage because two years earlier, he built a garage. Sage was required to dedicate right of way to receive a record plat and building permit. The inequity is obvious. Sage has borne the brunt of the taking alone while the entire county (the taxpayers) has borne the burden of the purchases from Parsley and Rosemary.

This begs the question: Where is the public outrage, the hue and cry? Where are the newspaper investigations, editorials, radio talk show callers; the phone calls to county commissioners and city officials? How about the demand by the public for an explanation?

I think the answer lies in three parts;

First, it is a complex issue. Perhaps not so complex an issue for those who have experienced it, but it is one that cannot be captured in simple sound bytes.

Second, people are unaware of the practice until they are personally confronted with it. Like the erosion of a shoreline, it goes largely unnoticed. What are a few inches or a foot per year? Then one day the owner looks out the door and notices that his backyard is now much smaller than it used to be. Until someone gets angry enough to challenge the taking of private property in court, or the public outcry gets loud enough, the practice is likely to continue unabated as it has for years.

Third, like the old cliché says, “You can’t fight city hall.” Perhaps it is easier to acquiesce. Effecting change is hard, the status quo is easy.

On a final note, the alert reader may wonder why I am writing this. Don’t these regulations keep me in business? It’s true. The local government’s burden on the populace is my gain. Burdensome regulation is one thing that keeps our phone ringing. The fact is, however, that I care far more about the taking and erosion of our collective constitutional rights than my own comfort and gain. I hope you do also.

2004-06-07T17:37:04+00:00 By |Uncategorized|