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The Old Hickory Dam: How a group of neighbors lost control of their neighborhood

Sep 19 2016
Posted by: The Contributor
The Old Hickory Dam: How a group of neighbors lost control of their neighborhood

By: Richard Exton, Jr.

Tucked in the northeastern corner of Davidson County beside Old Hickory Lake sits a small town next to a big dam – and things are about to get explosive. Blasting permits have been issued for a rock quarry in Old Hickory Village immediately adjacent to the Old Hickory Dam, sending one of Nashville’s most historic neighborhoods into a full-blown crisis. All for a project no one wants.

The year-and-a-half long battle has turned regular residents into crusaders for their community and sent legislators reeling as they fight for the safety of Nashville. 97.3 miles of water is held back by a dam that has outlasted its intended construction life, and now thousands of dynamite blasts are set to happen day after day within a mile of an earthen levee that has already failed once. If you are shocked to think that this is happening – the story of how it got to this point is even more incredible.

HOW IT BEGAN
In late 2014 the Tennessee General Assembly passed the Tennessee Vested Property Rights Act, a law intended to prevent local and state governments from retroactively implementing regulations that would financially impact property developers. Two years later, it now serves as the foundational piece of legislation that is allowing this quarry to happen.
Soon after the law passed, but prior to the law’s implementation on Jan. 1, 2015,  Industrial Land Developers LLC (a shell company for crushed rock and asphalt company Hoover Inc.) attorney Tom V. White contacted Metro Planning to inquire about the use of the property adjacent to the dam as a rock quarry. After receiving word from Metro Planning that the land purchased was zoned for Industrial General, a designation that allows for just about anything to be built, a certified engineer for Industrial Land Developers submitted an application and preliminary plans in writing to Metro Planning for use of the property as a quarry. Tom White also submitted a request for a zoning permit. Metro Planning approved the zoning permit and preliminary plans, and Industrial Land Developers was informed that no additional permits at the local level would be needed, except a building permit from Metro Codes for an office included in the original preliminary plans. All of this was prior to the law’s implementation.
In April of 2015 a building permit for an office was issued by Metro Codes – partly satisfying the Vested Right Act’s criteria for being “vested” – and the first half of the battle was over before it began.
It was not until several months later that neighbors in Old Hickory, the legislators they elected, and the U.S. Army Corps of Engineers (who run the dam) became fully abreast of the situation. What followed was a public outcry and legitimate concerns, and then tepid approval by various federal, state and local institutions that allowed this project to continue on what can only be described as a bed of nails. Here’s where the breakdown happened:

LOCAL
At Scully’s bar, a local hangout where neighbors share their frustration with the quarry openly, I met Cory Sharp. He lives literally across the street from the quarry site and was one of six neighbors that filed suit against Metro and Industrial Land Developers in an attempt to stop construction. Sharp used to be just another regular at Scully’s, but after a year of hounding agencies and organizing opposition, this first-time neighborhood activist has a palpable fatigue in his voice when discussing his experience.“This decision was made long ago,” says Sharp, “I don’t know any avenue we haven’t touched on.”
After seeing heavy construction equipment clearing land across from his home, Sharp contacted his newly elected Metro councilman to figure out what was going on. Old Hickory Village is in Council District 11, represented by Larry Hagar, who has roots in the area that date back at least six generations.
Describing the path by which this happened as a “perfect storm” of timing and bad luck, Hagar hastily put together a buffer zone bill that would prevent mining operations within one mile of a dam. On July 7, 2015, he introduced his legislation on First Reading to the Metro Council. However, due to the parliamentary rules of three readings before passage, Hagar’s bill would need a special suspension of the rules in order to have an expedited vote. A large group of neighbors from Old Hickory arrived at the Council chambers set to make their case and were shocked when this fairly common parliamentary request was defeated by the objection of just four Metro Council members – who were set to leave office in a month and were friendly with Hoover Inc.
Once again, the “regular” people who would have to live next to this quarry were left out of the process entirely.
In order to bring the bill back with the new Metro Council following the Aug. 6 election (Hagar ran unopposed), Hagar withdrew the bill and hoped he had not missed his chance. Unfortunately he had. On Aug. 7, 2015, one day after the election, Industrial Land Developers was issued a Use and Occupancy permit by Metro Codes – clearing the final regulatory hurdle before mining could begin. This is important because had the law passed prior to the issuance of the Use and Occupancy permit, the quarry would have died then and there.
“Sometimes you’re facing Goliath and you do what you can for the benefit of your constituents,” Hagar said.
Industrial Land Developers asserted in the lawsuit filed against them that because they were able to obtain both a building permit from Metro Codes in April 2015 and then a Use and Occupancy permit in August of 2015 they were “vested” and thus protected under the Vested Rights Act. Robert E. Lee Davies (a judge from Williamson County who was relieving the caseload of Russell Perkins, who would normally hear the case) used the phrase “belt and suspenders” to describe these permits as Industrial Land Developer’s vested interest in the property. But the ramifications of this ruling expand beyond this single circumstance.
“If this case stands, it will almost 180 degrees change what it takes to vest your rights in Tennessee,” says Jason Holleman, local attorney and former Metro Council member who has been representing the neighbors of Old Hickory. “It’s a real problem because officials at both the local level and the state level are really hamstrung to do anything once a developer gets an idea on a piece of property.”

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STATE
Following the issuance of the Use and Occupancy permit, more elected officials began to get involved. Inspired by people like Sharp and other concerned neighbors, Nashville’s entire delegation, with the exception of Speaker Beth Harwell, gathered at a church in Rayon City for a meeting with Congressman Jim Cooper and Larry Hagar to discuss what to do next. A plan was devised to take this on at every level of government.
Rep. Bill Beck, D-Nashville, created three Dam Safety bills, with Sen. Steve Dickerson, R-Nashville, leading the efforts with a sister bill in the Senate, and a campaign to convince state legislators that this quarry was not only a threat to Nashville, but the entire state, had begun. Blasting experts were convened, reports were distributed, and Congressman Cooper made a special visit to the House Subcommittee chaired by Rep. Andy Holt to testify. What unfolded was a farcical display of partisanship and a total failure for anything to be done at the state level.
“We had the most amazing coordination between local, state and federal government, and we could not stop this freight train,” said Beck. What Beck considered to be a genuine interest by his colleagues to hear what he had to say quickly became political theater. Cooper failed to be recognized in the state Senate at all, although it was the first visit to the General Assembly by a sitting U.S. Congressman in years. His appearance in the House was met with a condescending lecture by Rep. Holt, R-Dresden, and his colleagues who cited high school soil classes as superior scientific bona fides than the extensive research of the Rhodes scholar Congressman and the testimony of the 30-year blasting expert Cooper had brought with him.
Concerns about wetlands, wildlife and water pollution were met with studies and eventually permits because the structure of regulatory agencies in Tennessee has become so decentralized, that no organization has the ability to be proactive in the face of bad development. They can only respond to violations after the fact.

FEDERAL
Although a potential dam break could flood Nashville from downtown to The Nations, the U.S. Army Corps of Engineers does not consider its facility at Old Hickory one designed for flood control. Throughout this entire process, they have been steadfast in the science they have presented and are confident in the structural integrity of the Old Hickory Dam, even with the prospect of sustained blasting over the next few years. However, Cooper respectfully disagrees. His office contends that the dam sits atop a foundation of loose, wet sand and takes exception to the rotating command structure and judgment of the Corps that dictated this assurance of structural stability. “We live on the most volatile navigable river in the US. So, this could be viewed as the Corps’ most challenging project,” said Cooper. “We get some people who come in with zero water management experience, and it takes them a year to learn their jurisdiction. We just have to hope and pray we don’t get a 500-year flood, or a 1,000-year flood, while they’re learning the ropes.”

ANALYSIS
All along the way the project could have been stopped. But those who knew how to work the system exerted pressure points at just the right times to convert a quiet neighborhood, next to a beautiful beach, into one that will have to deal with heavy construction vehicles and persistent dynamite blasts for years to come. In many ways there is little left to be done with this project, but the legacy that it leaves affects everyone in Tennessee. If it can happen to Old Hickory, it can happen to your neighborhood.

(Images credit: Richard Exton Jr.) 


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