|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
2. That which is extorted or exacted by force.
Webster’s Revised Unabridged Dictionary, © 1996, 1998 MICRA, Inc
Private Property defined –
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:
|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:
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.
|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.