*Note: This is a reader-submitted opinion piece. Opinions and letters to the editor can be sent to news@clarksvillenow.com
Two years ago, we were on our way to expanding the Blackhorse Pub & Brewery by adding a new building on the vacant lot at 110 S 2nd Street. The new building was supposed to house an expansion of our brewery and a place to host larger parties.
Exactly two years ago this December, we got a call from Clarksville Gas & Water asking if we could hold up on the project to let them improve a sewer in the area before we started the building. We agreed to work with them on the sewer extension. We held up our building and allowed them to stage their sewer project on our lot, and they agreed to provide us some connections in return. This was an example of the Blackhorse and the City of Clarksville working together for downtown improvements. That would later change.
To understand where we are today, you have to look at where it all began. Sherri and I opened our Pub at 132 Franklin Street in March 1992. The Army was downsizing after Desert Storm, so we took the early out and decided to get into the restaurant business in downtown Clarksville. Fast forward from 1992 to January of 1999 when the tornado came through and destroyed much of the area. During the massive tornado recovery efforts, then Mayor Johnny Piper asked us to consider buying two lots at 108 and 110 S 2nd Street then owned by Peter Martin and Albert Marks.
The two buildings that had been there were both demolished because of tornado damage. The vacant lots backed up to the first 5 buildings in the 100 block of Franklin Street, which included our Pub buildings. The City wanted to get about 12.5 ft. of the Peter Martin lot to put in new utilities and an alley to improve services. Peter Martin had no desire to sell 12.5 ft. of his 25 ft. wide lot. Albert Marks did not want to rebuild. The City did not want the whole lot. Mayor Piper asked us to buy both lots, combine them, and sell the City 12.5 feet. This was going to get us better access to the rear of our buildings and better electric service. Plus we thought we could sell the remaining lot to one of the many displaced lawyers. So we purchased both lots. The City purchased 12.5 ft. from us almost simultaneously. Mayor Piper coordinated cost sharing of the purchase between Gas & Water, CDE, and the City. The City Council voted to buy the land “For a Public Alley.”
Shortly thereafter, CDE installed new underground electric lines, Gas & Water brought in new underground gas lines, and the Street Department installed a curb cut for the future alley entrance. We listed the remaining lot for sale, hoping somebody would buy it and put a new office building right across from the new County Court building. During that time frame, now County Mayor Jim Durrett was the Director of the Street Department. We discussed the fact that it would make more sense to install the alley in conjunction with whatever new building went there. From a construction standpoint, it would be more cost effective. So while it was the City’s intent to put in an alley, as agreed upon, it did not get done then.
Nobody ever bought the lot, so there was never any construction of a new building. The alley did not get built. We actually built a ramp to make our deliveries easier. Unfortunately you can drive around the courthouse block today and see several vacant lots still sitting empty from the tornado. In 2015, we at Blackhorse decided to expand our brewery and build on the lot ourselves, after owning it and paying on it all those years. We designed a building and got Design Review approval. It was during the site review process that Gas & Water became aware of our intentions and decided to upgrade the sewer system before we built.
In January 2016, Gas & Water contracted Byard Construction to install a new sewer main for $56,000.00. During depositions for our current law suit with the City, we learned from the City Engineer that he had drawn the sewer main extension by hand on a scratch pad. He used our site plan marked “Preliminary Not for Construction” for his planning. He did not order a survey of the site beforehand, and they failed to get the necessary TDEC approval. This becomes important down the line because the new City sewer is installed on our property.
That preliminary site plan was based on a then 5 year old survey by DBS that had a 5 ft. error in it. Going by that preliminary site plan, the City Engineer thought he had 5 ft. more to work with than he really had.
Once Gas & Water and Byard Construction started working, we began discussing the fact that this would be the perfect time to install the alley as part of that project. Gas & Water said it was a Street Department issue. We contacted the Street Department. I met with Jack Frazier who said it was not in their budget and would require mayoral approval. During his deposition, Mr. Frazier said Mayor McMillan told him “if Jeff Robinson wants an alley, he has to come see me.” He also said in his deposition that he decided not to relay that message. Nothing ever came of repeated calls to the Street Department to get the alley built.
As the sewer project was dragging on and 2nd Street was closed for weeks and weeks, the project grew from $56,000 to $154,000. Nobody seemed to bat an eye over two $48,000 change orders. But paving the alley was getting no traction.
In March 2016, I was asking City Council members to come see how close it was to being finished as an alley and asking them to intervene since it would never be any cheaper to finish. During his deposition, Byard Construction project manager Brad Pavlick said that they would have finished the alley from this point for only $10,000. The project was eventually finished, without an alley.
On March 5, 2016, I came in to work and found a City crew removing the manhole structure they had just paid Byard to install. I asked the crew what they were doing. They responded that they had to remove that manhole because it was not on City property. They pointed to the vacant lot and said “the guy who owns that lot doesn’t like the City so we have to get this off his property.” I told them that I was that guy and I didn’t have anything against the City. I asked them to take a break and give me a chance to work it out. I called Pat Hickey and asked what was going on. Pat informed me for the first time that the City had gotten a survey after the fact and determined that part of the new sewer line was on our property. He told me that their survey showed our lot being 5 ft. wider than the preliminary site plan had shown it. I told him I hated to see them digging up a manhole structure the taxpayers had just put in. I offered an easement for the property they had taken if they would just have Byard finish the alley. He said he would get back to me. About 2 hours later I got a voicemail from pat Hickey saying “I’m sorry, the 4th floor says no deal. We have to take out the structure.” This is important. This was the first chance to solve this problem for a whopping $10,000.
Through depositions we learned that in March 2016, Mayor McMillan informed all City personnel involved that there would be no alley built. She directed them to have Byard finish the job without the alley.
Then in May 2016, Mayor McMillan convened a meeting in her office with all affected property owners, all Department Heads, and the City Attorneys. She told everybody assembled in the room that this property was not to be called an “alley,” had several encroachments, and we needed to figure out how to solve the encroachments. These encroachments included a dumpster pad, beer tank pad, fire escape, concrete ramp, and some air conditioners. When I asked about the sewer encroaching on our property, she was taken aback. She asked Pat Hickey if they had not removed that already. I pointed out that they had removed the manhole structure but nobody had removed the actual sewer pipe that was clearly on our property as shown in the City’s survey. She went on to say that she did not know what the final solution would be to solve the encroachments but the City might consider selling each property owner the portion of City property adjoining the rear of their respective property. This could solve most of the encroachments. Deborah Evans, who owns an adjoining property, immediately spoke up and said she would buy the part behind her property because she wanted her own parking space. Sherri and I walked out of that meeting along with our lawyers Mark Olson and Taylor Dahl and said, “We might have to sue the City to prevent them from selling that alley in portions.” If that happened, we would have no access to the rear of our pub buildings for deliveries other than across our vacant lot and that would greatly reduce the value of the lot.
Before suing the City, we made another effort to solve the problem at minimal cost so we could just get on with constructing our building. We sent the City an offer that in exchange for the return of the 12.5 foot strip of land, we would build the alley at our expense in conjunction with the new building and would give easements to the City and every other affected property owner to resolve all encroachments and access issues. This was a ZERO dollar solution for the City. Mayor McMillan refused. She told the City Council that was a bad deal.
We sued the City in July 2016. The lawsuit has been going on for a year and a half now. For the first year, the City used their in-house attorneys, so the cost was somewhat hidden. There is no telling how much time they spent on it, but there was no monthly bill for the City Council to see. In fact, we have asked for Public Information as to how much they have spent internally and been told they really don’t track their hours in their legal department. Over the past 6 months, though, they have spent right at $175,000 on Nashville law firms. One has to wonder why Nashville lawyers? Our legal bills are now in excess of $240,000. They tell me we should expect to have a trial here in Montgomery County some time next fall. I am not experienced in the legal quagmire game, but at this rate, it looks like the legal bills will be over $500,000 for each side by then. That does not even take into account our damages in the event we win the lawsuit. This is heading toward a million dollars on something we offered to do for free.
The lawsuit is still going over two issues. #1. They put the sewer on our property, which is a taking. The City doesn’t get to take private property without going through the proper steps. If they do, it is called Inverse Condemnation. The Tennessee Court of Appeals has ruled that it is Inverse Condemnation even if the City didn’t mean to take it. Inverse Condemnation entitles us to attorney’s fees and damages. #2. We are suing them over Detrimental Reliance. The City, under then Mayor Piper, induced us into buying the property which they said in their own documents and meeting minutes would be a Public Alley. Now Mayor McMillan has refused to hold up their end of the deal.
No doubt some people would hear this and think to themselves what the heck? This can’t be true. Every bit of this is true. Then you might think why? Wouldn’t it be a good thing to grow a business, add to the tax base, create more jobs, and build on a vacant lot in the middle of downtown? Indeed it would.