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VOL. 11 | NO. 9 | Saturday, March 3, 2018

Heir on the Side of Caution

How a 200-year-old covenant has shaped some of Memphis’ most iconic real estate

By Patrick Lantrip

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The closest and best parcel of land for a second convention center hotel in Downtown Memphis is the Mud Island parking garage. It’s a block away from the Memphis Cook Convention Center and is the first site that came up when a Denver developer approached the city last year about possibly building such a hotel.

The west side of Front Street from Union Avenue to the south and roughly A.W. Willis Avenue to the north is a stretch of riverfront property the city’s founders designated as public lands nearly 200 years ago. But as the definition of “public use” has evolved over the centuries, most Memphians are unsure what exactly can be done with the land. (Memphis News/Houston Cofield)

By late 2017, the developer and other hotel developers were still in discussions with city leaders about such a hotel, but they were no longer talking about the garage site at Front Street and Poplar Avenue.But a single common dominator does become apparent: they are all public-use applications of the land, rather than commercial or for-profit uses.

“The potential legal battle to justify or figure out if the city could go on top of already existing parking for a hotel is too daunting of a task,” Memphis Convention & Visitors Bureau president Kevin Kane said in October. “That’s a multiyear argument probably.”

Kane’s comment is a rare public reference to a covenant that dates back to Memphis’ founding nearly 200 years ago.

When surveyor William Lawrence laid out in 1819 what would become the town of Memphis at the behest of city founders John Overton, Andrew Jackson and James Winchester, the land that would have been the most expensive property of the embryonic municipality was simply labeled “public promenade.”

To Overton, it seemed this concept needed little explanation; the term “promenade” suggested just that – for the land to be used as a public walkway along the riverfront that would also offer unfettered public access to the Mississippi River via a public landing on its northern section.

Historian John M. Keating wrote in his “History of the City of Memphis,” in 1888, “The people of Memphis were opposed to the proprietors, and did everything they did to hinder and hamper them. For the third time, in the brief existence of the town, they came (in 1828) into conflict.”

John Overton

Keating was referring to an incident in which Overton, upon returning to Memphis, noticed a public street had been carved into the promenade without his permission.

This caused Overton to write a letter to Lawrence and the city’s first mayor, Marcus B. Winchester, in which he expressed “no small degree of regret” that his intentions “to prevent the destruction of the ground itself” had not been honored.

In conjunction with the letter, Overton filed a legal document with the Shelby County Register that laid out his intentions for several parcels of land, including the promenade and landing, which reads in part:

“In relation to the piece of ground laid off and called the ‘Promenade,’ said proprietors say that it was their original intention, is now, and forever will be, that the same should be public ground for such use only as the word imports, to which heretofore, by their acts, for that purpose, it was conceived all was relinquished for themselves, their heirs, etc., and it is hereby expressly declared, in conformity with such intention, that we, for ourselves, heirs and assigns, forever relinquish all claims to the same piece of ground called the ‘Promenade,’ for the purpose above mentioned.”

This statement, made nine years after the city was founded, has become one of the defining cornerstones of every legal case concerning development of the area since then.

“If you’ve ever wondered why there isn’t more development along that area – that’s the reason,” said Alan Crone, an attorney and special adviser to current Memphis Mayor Jim Strickland. “Any time you sit down to talk about developing it, it’s just unclear what can be done with it.”

Defining ‘public use’

Since Overton’s letter in 1829, there have been at least a dozen legal disputes over the land, often concerning the definition of “public use.”

There’s no record of any document going back to the 1819 Lawrence map that spells out conditions for land use on the promenade.

No known text is associated with the original plat, and only a transcribed copy of Overton’s letter remains on file at the Shelby County Register’s office.

In 1844, the northern section of the promenade where The Pyramid is located was sold to the U.S. Navy, which, according to Keating, was the result of a compromise by the remaining proprietors, who were in opposition to the property’s sale.

“Basically the city has sold part of the promenade to the Navy, the Navy put a naval yard there, and then later sold it to private investors,” Crone said. “And as a result of this case, there are some areas of the promenade at the northern end where that was subject to that compromise where for-profit activity could occur.”

Over the next hundred years, the interpretation of term “public use” would morph into an umbrella term that grew to encompass uses such as libraries, firehouses, city-owned parking garages and convention centers.

Today, the western side of Front Street between Union and A.W. Willis avenues includes a fire station, the University of Memphis Cecil C. Humphreys School of Law (formerly a post office), the Cossitt Library, several parking garages and a few parks – all public-use applications.

In the 1960s, a case that went to the Tennessee Supreme Court would prove to be the defining case to date concerning use of the land.

“The city wanted to sell the land where the fire headquarters is now at Union and Front to a hotel developer,” Crone said.

He said the Supreme Court eventually determined that the city couldn’t sell the land because it only has an easement on the promenade for public use, and that the heirs of the city founders didn’t actually own the property but did have the right to enforce the easement.

“I can tell you that this concept articulated by the Tennessee Supreme Court is very, very, very, unique,” Crone said. “It would be much more straightforward if the court said the heirs own the property and the city has an easement, but I think what the court was trying to do was to create some stability. Because of the way that the court constructed it, the heirs really can’t sell their interest because they don’t have anything to sell, and so the legal nature of it really seeks to create a stalemate.”

Because of this, the amount of time alone that it would take to settle a court case with any of the opposing heirs would most likely scare off a potential developer, Crone added.

“The problem realistically is that you’re probably talking about a legal fight that would take years to resolve, in which case the opportunity to develop would vanish,” Crone said. “That’s one of, I think, the frustrations with the restrictions. Even if you could win the lawsuit, the time it would take to get it resolved has a chilling effect on whether or not you want to, as an administration, spend that kind of time delaying a project.”

The stalemate most recently came to a head in the early 2000s, when the newly formed Riverfront Development Corp. presented plans to raze two parking garages, the fire station and possibly the Cossitt Library and replace them with a mix of high-rise commercial and residential development.

When William Lawrence laid out the original plat for the city of Memphis at the behest of John Overton, the city’s most valuable land was blocked off for public use. (Friends for Our Riverfront)

“Right now the promenade property as it sits with the parking garages and the fire station is sort of a barrier that disconnects Downtown with the riverfront,” RDC president Benny Lendermon said. “So the idea was to provide activity there, and do it in a way that generates dollars that go back to the city of Memphis.”

Upon learning of these plans, several of John Overton’s heirs formed a conservation group known as Friends for Our Riverfront to oppose those plans.

Though Overton’s descendants didn’t take the city to court, the threat of action was enough to eventually put the plans on ice.

“Legally, I think, if any heir opposes, you have a legal issue, so whether or not you have 85 percent in support and 15 percent opposing it, it’s still an issue,” Lendermon said of the heirs, who number in the thousands.

“Regardless, that is no longer being considered anymore,” he added. “There was new plan done, and it’s very much trying to figure out ways to embrace the river and connect the river with Downtown in ways that are unobtrusive and supportive of everyone.”

What Overton’s heirs think

A new plan proposed in 2017 places a “cultural amenity” – the Memphis Brooks Museum of Art intends to be that amenity – on the parcels where the fire station and parking garage currently exist between Union and Monroe avenues. A land bridge is one of the proposed elements of the plan, which would directly connect the public promenade with the river.

Virginia McLean, one of the founders of Friends for Our Riverfront and a direct descendant of John Overton, said Friends formed in 2003 to protect the rights of the citizens of Memphis along the promenade.

“This land is the best land in the city. It belongs to the citizens, not the city and not to private real estate development, and we are going to stand against that,” McLean said. “If you look at other cities around the world, really they give this best land to the public – to citizens – often usually as park space, sometimes with an art museum, but usually it’s park space.”

She cited Chattanooga’s efforts to clean up its riverfront.

“Their waterfront is public,” she said. “They had to buy it because a lot of it was industrial. Memphis is so lucky because we already have the right to use this land if we just use it correctly.”

McLean’s hope is to one day see the promenade developed in a manner that would place it on par with some of the city’s other popular public spaces, like Shelby Farms Park or Overton Park.

“We do feel like we’re protecting the public’s rights,” she said. “I’d like for people to know that it is their land as long as it’s kept under this covenant. If this covenant is broken, then they lose, and that’s the part that has kind of gotten lost, I think.”

Which is why she is opposed to some of the looser interpretations of what is considered public use.

“(The covenant) gives the land to the citizens in perpetuity to be used as a promenade, with the city to act as stewards of it,” she said. “I don’t think the descendants have any right to alter the covenant.”

However, not all of Overton’s descendants agree.

Davidson County Circuit Court Judge Hamilton Kip Gayden is an Overton heir who has been involved both legally and as a stakeholder in several cases involving the promenade since the 1960s.

Since Gayden is a judge, he’s legally prohibited from practicing law, and is merely speaking as a representative of some Overton heirs.

“I’m speaking now, I think, on behalf of at least 50 percent of the Overtons, and I have lawyer here in Nashville that represents some of them, too, to say that our position is simply whatever the RDC wants,” Gayden said. “If they want a park, fine. If they want to develop it, fine. I don’t think we should have a say-so. We’re vitally interested, but the future of Downtown Memphis on the waterfront belongs to the city, to the people, to the RDC and to the mayor. That’s the way we look at it.”

Gayden also noted that due to a number of conveyances in the early 1800s by Andrew Jackson to the Winchester and McLemore families, their descendants, like the Overtons, also have a stake in the promenade’s future.

“Jackson sold one-half of his interest to Overton, which gave Overton one-half interest in that development,” he said. “He sold the rest of his interest, one-half to the Winchester heirs and one-half to a family called McLemore. My interest, I figured out one time, was 1/1,750th.”

Because of this, Gayden thinks that the best use of the land isn’t for him, or any descendent, for that matter, to decide.

“I kind of think the city voters ought to have some kind of public vote on it,” Gayden said. “That says a lot. It says it really doesn’t make a bit of difference what the Winchesters or McLemores think, it’s the people of Memphis – what do they want to do with it?”

What the future holds

The 2017 plan the city unveiled in July for the Memphis riverfront includes a pedestrian bridge connecting the southern tip of Mud Island and the promenade.

An aquarium would anchor the south end of the city-owned river park on Mud Island. The aquarium was adapted by the same group behind a proposed aquarium for The Pyramid before the city settled on a Bass Pro Shops megastore in the former arena.

A pedestrian bridge across the Wolf River Harbor would connect to a plaza area on what is now the last block of Monroe Avenue to Riverside Drive. It would lead into a plaza area for the new Memphis Brooks Museum of Art taking up the block now occupied by the fire station and parking garage.

The new museum, largely financed with private donations, will take five years to build and comes in at a price of $110 million, including an endowment fund. The city has begun the process of locating a new site for the fire station at Danny Thomas Boulevard and Adams Avenue.

“The big issue is that currently, the riverfront and Downtown are looked upon as two different things,” Lendermon said of the overall riverfront plan. “Hopefully in the future of Memphis, at some point they can be considered as one thing and that’s part of what the concept plan is trying to help advance.

"You have to bring those two things together to get the advantage of (the city’s) greatest resource – the Mississippi River.”

As for McLean, she said that while it is still too early to have an official opinion, the new direction the city is taking is “encouraging.”

“Really and truly we are very fortunate to have that land, because if you look at what most cities around the world are doing, they are creating public waterfronts,” she said.

The only difference, she added, was that her ancestors were 200 years ahead of the curve.

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