Property Rights

Mar 292013

The Great Tennessee-Georgia Border War of 2013

On March 25, 2013, Georgia senators passed House Resolution 4 (“HR 4”), a resolution which proposed settlement of the boundary dispute between the State of Georgia and the State of Tennessee. The resolution attempts to settle the long running dispute about the Tennessee-Georgia state line and clarify Georgia’s access to the Tennessee River. It also directs the Georgia attorney general to file suit in the U.S. Supreme Court (based on Article III, Section 12 of the U.S. Constitution) if Tennessee does not accept Georgia’s offer by the last day of next year’s General Assembly session.

Everyone knows that the ultimate issue here is water. The current border cuts off Georgia from access to the Tennessee River. The Tennessee River has been long coveted by Georgia as a source of more than enough water to meet the demands of metro Atlanta’s ever growing population.

Georgia’s argument is that the boundary between Tennessee and Georgia was originally set at the 35th parallel until an incorrect survey in 1817 set it slightly to the south. Were the Tennessee-Georgia state line moved to precisely follow the 35th parallel, the line would be shifted northward to points over a mile north of its present location. Nonetheless, the proposed settlement from Georgia offers to claim only a tiny unpopulated part of Tennessee at Nickajack Lake (enough to withdraw water from the Tennessee River). Georgia would make no claims on the rest of the area up to the 35th parallel.

Georgia has raised this issue several times to no avail. Georgia made efforts in the 1890s, 1905, 1915, 1922, 1941, 1947 (which similarly authorized the Georgia attorney general to bring suit to the U.S. Supreme Court), 1971 and 2008 to resolve this dispute. Each time Tennessee did little or nothing in response. Based on recent statements by Tennessee Gov. Bill Haslam and the Tennessee Legislature, it seems that Tennessee will be taking the same approach in response to HR 4.

A border lawsuit between Georgia and Tennessee accepted by the U.S. Supreme Court would easily become one of the most significant border cases in our nation’s history. Furthermore, the political and economic effect of moving the Tennessee-Georgia border to the north by a mile would be massive.

Aug 152012

Tennessee Supreme Court: Tennessee’s Nonconforming Use Statute Applies Only to Zoning Change or Zoning Restriction

In the recent case of SNPCO, Inc. v. City of Jefferson City, 363 S.W.3d 467 (Tenn. 2012), the Tennessee Supreme Court analyzed Tennessee’s nonconforming use statute in the context of an annexation. The Court addressed the question of whether a city’s ordinance banning the sale of fireworks within its city limits implicates Tenn. Code Ann. § 13-7-208(b) which permits pre-existing nonconforming businesses to continue to operate despite a zoning change.

In November of 2003, Jefferson City banned the sale of fireworks within its city limits. In 2008, the city annexed property adjacent to its borders which included the property on which SNPCO, a fireworks retailer, was located. After the city annexed the property, the retailer asked the city for permission to continue selling fireworks as a pre-existing nonconforming use. The city refused and SNPCO filed suit.

The trial court dismissed SNPCO’s complaint finding that the combination of the fireworks ordinance and the annexation of the property was not an “unlawful taking” and that the fireworks ordinance was not a zoning ordinance subject to grandfathering protection under Tenn. Code Ann. § 13-7-208(b). SNPCO appealed. The Tennessee Court of Appeals affirmed concluding that the test mandated by Cherokee Country Club, Inc. v. City of Knoxville, 152 S.W.3d 466 (Tenn. 2004) did not apply to determinations of whether an ordinance was a “zoning restriction” for the purpose of Tenn. Code Ann. § 13-7-208(b).

Tenn. Code Ann. § 13-7-208(b) is a grandfather clause that allows businesses that may be adversely affected by changes in zoning codes after the business has already opened to remain open under certain circumstances. The statute provides a vehicle for avoiding the legal problems that can arise whenever a newly enacted zoning ordinance or an amendment to a zoning ordinance might otherwise force a property owner to discontinue an otherwise permissible use of the property. Property owners seeking to invoke this statute have the burden of proving it applies to their business.

The Tennessee Supreme Court concluded the retailer could not take advantage of the grandfather clause in § 13-7-208(b). The pivotal question was whether the combined effect of the city’s fireworks ordinance and its decision to annex the land on which the retailer’s business was located was tantamount to a “zoning restriction” or “zoning change.” The Court relied on the “substantial effects” test it adopted in Cherokee Country Club, Inc.; a two-part test that examines both the terms and the effects of the challenged ordinance. It requires the court to first determine whether the challenged ordinance relates to the city’s “general plan of zoning.” If the court determines that it does, then the second step is to ascertain whether the ordinance results in a substantial interference with the use of land. The Court notes that the fireworks ordinance was not related to the city’s general plan of zoning and could not be characterized as a zoning ordinance or a zoning restriction. The fireworks ordinance did not refer to land, zones, buildings, lot lines, or any other terms and concepts customarily associated with comprehensive zoning plans. The ordinance simply reflected the exercise of the city’s traditional, general police power. Thus, the Court held that because the ordinance was not a zoning ordinance, it was neither a “zoning change” nor a “zoning restriction” for the purpose of Tenn. Code Ann. § 13-7-208(b).

Aug 082012

Floods and Federal Temporary Takings

Counsel for the petitioner previewed arguments before the Supreme Court in Arkansas Game & Fish Commission v. United States, cert. granted, Apr. 2, 2012 (No. 11-597) during a panel on federal takings at the ABA 2012 Annual Meeting. The case asks the Supreme Court to consider whether temporary flooding constitutes a compensable taking and, more broadly, government takings liability for floodway management, when some lands are deliberately flooded to prevent greater damage elsewhere.

Background of the Case

The Fifth Amendment Takings Clause guarantees that private property shall not be taken for a public use without just compensation. This was designed to bar the Government from forcing some people alone to bear public burdens which should be borne by the public as a whole. In what appears to be a case of first impression, the issue before the Court in Arkansas Game & Fish Commission v. United States is whether the U. S. Government is liable under the Takings Clause for intermittently flooding timber lands owned by a state agency.

The Arkansas Game & Fish Commission owns and operates a 23,000-acre wildlife refuge and recreational preserve. Clearwater Dam, on Arkansas’ Black River, is a federal flood control project that lies 115 miles upstream from the refuge. Between 1993 and 2000, the U.S. Army Corps of Engineers released more water than authorized from the Clearwater Dam. As a result, the refuge subsequently suffered extensive property damage–primarily the death of numerous oak trees–which the Arkansas Game & Fish Commission attributed to the Corps’ intentional flooding of the property. In 2001, the U.S. Government acknowledged the substantial damage its flooding had caused on Arkansas Game & Fish Commission’s land and ceased deviations from the floodwater release plan.

After a lengthy trial in 2009, the U.S. Court of Federal Claims awarded $5,700,000 in favor of the Arkansas Game & Fish Commission finding that the Army Corps of Engineers’ actions in intermittently flooding petitioner’s property foreseeably destroyed or degraded the property, requiring just compensation to be paid pursuant to the Takings Clause. The Supreme Court granted cert after a divided panel of the U.S. Court of Appeals reversed the Court of Federal Claims award.

Blurring a Takings issue with a Damages issue

A temporary flooding scenario may be a case of first impression, but the Supreme Court has consistently recognized damage claims under the Takings Clause in temporary taking scenarios. To a certain degree the temporary issue is irrelevant; it happened once and injury occurred. Temporary flooding is no different than more permanent flooding that occurs in other inverse condemnation cases which regularly result in awards of compensation. Thus, the main issue should be whether the petitioner was damaged by the flooding for which compensation is due.

Ultimately, the Supreme Court will determine whether the temporary nature of intentional intermittent flooding acts constitutes a taking for which compensation is due. The respondent’s brief on the merits is due on August 27, 2012 and the case is set for argument on October 3, 2012.