Midtown Neighborhood Spared ‘Large Apartment Complex’

By Bill Dries

A VICTORY: Residents of the Vollintine Hills neighborhood showed up with signs at City Hall this week to protest the development of a 117-unit apartment development near Gethsemane Gardens Church of God In Christ. The council rejected the planned development. -- PHOTO BY BILL DRIES

It was a question of zoning versus a covenant.

This past week at City Hall, the Memphis City Council sided with restricted covenants in a Midtown neighborhood.

Evergreen Living Center LLC, a church-related nonprofit organization, wanted to build a multistory, 117-unit apartment development for people 55 and older.

The land in question, 2.81 acres off Vollintine Avenue near Hawthorne Street behind Gethsemane Gardens Church of God In Christ, is in the Vollintine Hills subdivision.

Attorney Lewis Wardlaw of Martin, Tate, Morrow & Marston PC,

representing a group of 30 neighbors of the church, argued it wasn’t senior housing or assisted living for senior citizens. “This is nothing but a large apartment complex,” he said.

Attorney Vanecia Belser Kimbrow said it was an independent living facility.

Councils and courts

Representing the nonprofit agency that wanted to develop the complex, she argued it was permitted under zoning regulations and plans. Kimbrow also said the COGIC-related group had redrawn plans four times and scaled back the complex from original plans to build 178 units in four-story buildings.

“That is a significant revision in any developer’s attempt to appease and work with the community,” she said of the general need for more housing for elderly and aging baby boomers. “This is one more project that gets us to that end.”

Ultimately more important to some council members was a 1947 restricted covenant covering the kind of housing in the subdivision. The covenant specifies single-family houses on individual lots.

“All lots in the subdivision shall be described as residential,” Wardlaw said, reading from the covenant. “These wouldn’t be. They would be multifamily.”

Even if there was some doubt about that, Wardlaw quoted from another section.

“No construction other than single-family dwellings shall be built and none over two stories.”

Such covenants are not necessarily a barrier to council approval. But the council doesn’t have the last word. That lies with the courts.

Council member Reid Hedgepeth, who is a developer, spoke from his experience trying to build projects that may pass in terms of zoning requirements but run afoul of a covenant that a judge might rule is enforceable.

“Assuming there is not a majority of the neighborhood that says we are for this project, 51 percent, then the covenants will not change,” Hedgepeth said. “They then will not be able to get financing that I have ever seen to do this project. No financing company is going to finance this.”

He recalled five or six planned developments proposed in areas of the city with such covenants in the last five years.

“There is one that passed that was in restricted covenant. That lot is still vacant. The house is still dozed,” he said. “They wanted to tear down one house and build two and got approved for it. But they haven’t built anything because nobody is going to finance two houses in a restricted covenants neighborhood.”

Fountain of youth

Residents of the Vollintine Hills area indicated there had never been a lawsuit over the covenants that they remember. Some have lived in the neighborhood for 30 years or more.

The city-county Land Use Control Board and the Office of Planning & Development recommended approval of the planned development with conditions.

OPD Deputy Director Mary Baker said some consideration was given to the concept of an aging population already living in the neighborhood. Older residents looking for a place to live without a yard to keep up might be drawn to such a development that would allow them to “age in place,” she said. But OPD approval came with conditions including limiting the age of primary residents to 55 years and older.

That prompted council member Janis Fullilove to question whether a 55-year-old resident could move in with a 50-year-old spouse.

“I’m eight years older than my husband. When I was 55 he was not 50, alright?” Fullilove said. “So that meant that if I was married to him and wanted to move into some apartments, he’d have to stay away until he turned 50. That’s my point, because older women marry younger men all the time. That’s what keeps us young.”

It was a moot point since the council voted down the planned development.