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VOL. 131 | NO. 68 | Tuesday, April 05, 2016

Lawsuit Seeks to Void City Decision on Greensward

By Bill Dries

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A lawsuit filed in Shelby County Chancery Court Tuesday, April 5, seeks to void the March 1 Memphis City Council vote that gave the Memphis Zoo undisputed control of most of the Overton Park Greensward.

The lawsuit filed in the name of Susan Lacy and Stephen Humbert, two Memphis residents, argues the action should be voided by the court because the council allegedly violated the state’s open meetings law.

View/download lawsuit (PDF, 1.5 MB)

"This is not about the Greensward," said attorney Don Donati after the lawsuit was filed. "This is about conducting city business in an open and transparent way. That is their primary thrust."

The resolution offered by council member Reid Hedgepeth surfaced on the council’s website hours before the council’s 11-1 vote in favor of it. And when the resolution was posted on the council’s website it already had nine sponsors, including Hedgepeth, listed.

There was no discussion of the details of the resolution in council committee where it was added to the council’s agenda for a vote.

The lawsuit alleges that City Council attorney Allan Wade “on behalf of councilman Hedgepeth and the MZS (Memphis Zoological Society) made a number of telephone calls to discuss the development, objectives and drafting of the resolution and to obtain sponsors for the resolution.”

“Any discussion among themselves and with council attorney Wade regarding what action to take based upon advice of counsel should have been conducted in open to the public and the failure to do so constitutes a clear violation of the Open Meetings Act,” reads the lawsuit filed by Donati and fellow attorneys Bryce Ashby and Robert Donati.

The lawsuit also claims that the council had no authority to give the zoo control of the Greensward because of a 2000 ordinance passed by the council that abolished the Memphis Park Commission. 

The argument is that with no park commission the control and management of parks went to the city’s Division of Park Services.

“Accordingly the city council has no legal authority to take the actions contained in the March 1, 2016, resolution as it had ceded such power to the executive branch more than a decade and a half prior,” the lawsuit reads.

Don Donati said Lacy and Humbert are both professionals who use Overton Park and would have wanted to participate in the council's discussion.

"Our clients don't take a position about who should be managing anything," he added. "They want an open and transparent dialogue about what to do with this public asset."

The action asks the court to find that the council violated the Open Meetings Act state law and void the council action on the Greensward.

The resolution’s passage asserted the council’s right to make a determination of who could use city property. And Mayor Jim Strickland did not contest the assertion.

It came at a critical time in the Greensward controversy, which is now in its third spring.

It came after the zoo filed a lawsuit in January seeking a Chancery Court ruling giving it undisputed control of part of the Greensward. The Overton Park Conservancy, which was named as a defendant – along with the city – in the lawsuit, filed a counter-claim in February.

The zoo cited a 1988 master plan approved by the city that gives it control of the area for overflow parking. The conservancy cites its 2012 agreement with the city that gives the conservancy control of all of the Greensward.

The competing claims involve two conflicting maps and complex legal arguments about whether an earlier plan trumps a later agreement or vice versa.

As that court fight was forming, the zoo and conservancy prepared to enter into mediation proposed by Strickland that continues.

In the gap between the two events, the council acted.

The earlier claim and counter-claim in Chancery Court are still pending before Chancellor James Newsom and scheduled for a motion hearing Friday.

Newsom has been assigned the new lawsuit.

Zoo officials had said after the council vote that they would drop the lawsuit if the conservancy dropped its counter-claim.

The mediation aimed at a compromise solution has proven to be leak-proof so far with no specific details offered of what might be on the table or off the table.

Strickland, in a written statement Monday, offered no specifics on the mediation process either.

“I am pleased to report that mediation remains ongoing,” he said. “Mediation is a deliberate process meant to deliver a thoughtful resolution, which means its conclusions aren’t always reached as quickly as we all would want them to be reached. I urge patience as we continue to work toward a solution.”

 

Daily News publisher Eric Barnes is on the board of the Overton Park Conservancy. He did not participate in the writing or editing of this story.

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