As new city leaders address owners’ concerns, eminent domain issue still perplexing
By Jim Gaines
In the late 1980s, Bowling Green city officials were pleading for businesses, any businesses, to move into the dwindling downtown.
DJ’s Upholstery answered the call, along with several other businesses that dealt mostly with automotive products.
But the city’s downtown revitalization plan, which seeks to buy sites for several large-scale projects, now seeks to give those same loyally civic-minded businesses the boot, say DJ’s co-owners Melissa and Terry Tarrance.
DJ’s, at 723 College St., occupies a small section of the site where city planners and baseball enthusiasts would like to see the stadium for a minor-league team – or, depending on how projects shake out, the Southern Kentucky Performing Arts Center.
In any event, DJ’s and similar firms are targeted as “nonconforming uses,” businesses that don’t fit the vision endorsed by the previous city commission of a pedestrian- and family-friendly downtown that would attract tourists and new residents. So not only is the building slated for eventual demolition, but DJ’s could not just move down the street. It and other automotive-linked businesses have been officially declared unwelcome in a 29-block area of downtown. The city’s redevelopment plan, in force for almost two years, announces that nonconforming uses may be bought out and forced to move.
But when owners of such businesses asked the city when they could expect an offer, they were told “six months to 20 years,” Terry Tarrance said.
He would like to make some repairs to his building – and possibly some cosmetic changes, to make it fit better into a neighborhood that’s being revived – but can’t see the point of wasting his money on a building slated for demolition, he said.
In fact, several downtown business owners complain that the uncertainties of redevelopment are making downtown worse: Owners are letting buildings fall into disrepair because they’ve been told that the city won’t pay any more for spruced-up buildings, making improvements a waste of money, they say.
For Tarrance and others, it comes down to a simple question: When?
“If they’d just keep us more informed, most of us would be willing to work with them,” he said.
The Tarrances and several other downtown business owners said they want to hear regular updates on city plans, have a probable timeline of redevelopment efforts and get notice of the next area or areas to be targeted – and they hope that the newly seated Bowling Green City Commission will heed their requests.
To that end, downtown businesspeople have been talking among themselves for some time, and have met separately and as a group with the new city commission – most recently, in a large meeting the day before new commissioners were sworn in on Dec. 31.
And incoming officials say that they’re listening.
“I think the biggest thing is that we truly need to change the way that we have handled the whole property-acquisition process,” Mayor Elaine Walker said Saturday. “We need to keep the property owners in the loop. We need to make sure that they are the first informed, and make sure that they are given regular updates.”
Property and business owners haven’t been saying that they are resistant to moving or selling out, but that they feel badly treated because they’ve been left uninformed, she said.
Walker agreed that tagging a building for eventual demolition logically leads to neglect in the meantime. So the city needs to target its moves precisely, and give owners a real timetable, she said.
“We’ve got a good plan for downtown redevelopment,” Walker said. “We just have to make sure that the way that we move forward benefits everybody – and that includes the property owners. I think that we are amenable to taking a look at individual properties to see if we can change the designation for nonconforming use.
“This is probably the most important issue that we’re facing right now, and I think we’re going to spend a lot of time on it because I think it needs to happen.”
Downtown businesspeople also ask that a yes-or-no decision be made on whether “nonconforming” businesses will eventually be asked to move, or can just be fixed up to blend in. And they want to see a detailed review of the exact types of businesses that are currently labeled as “nonconforming.” More than 100 addresses appear on the city’s original list.
“I think they’re absolutely right,” Commissioner Brian “Slim” Nash said. “We do need to re-examine the nonconforming list.”
The city’s plan and the downtown ideals it embodies are good, he said.
“But some of my very first public comments were, ‘Who actually gets to decide what businesses stay and what businesses go?’ ” Nash said.
Those businesses that have moved downtown, or stuck it out for years while others left, should be rewarded rather than told they’re unwanted, he said.
“Nothing, if I were a business and property owner, would make me angrier than that,” Nash said.
But in order to create the downtown atmosphere that the city wants, those businesses may be required to alter their appearance along detailed guidelines, he said.
“To me, that seems like a great balance,” Nash said. “Everybody’s got to give to get, I think. Nobody wins in a power struggle. Even the people who think they’ve won, haven’t.”
Commissioner Brian Strow, backed by Commissioner Mark Alcott, introduced an ordinance at the new commission’s first meeting to bar the city from using its eminent-domain power to force purchase of private property if that property would then be turned over to another private entity for redevelopment.
Commissioners voted 3-2 to table Strow’s ordinance; they said that they agreed in principle, but didn’t want to make such a major decision at their first meeting, or without careful study – especially since the U.S. Supreme Court is scheduled to decide a case on that very subject this year.
The city’s redevelopment plan was written in part to specifically allow that use of eminent domain, and several of the projects now under way were turned over to private developers. Although none of the land sales for those projects was forced through eminent-domain proceedings, some downtown property owners say that the explicit threat of eminent domain makes any negotiations inherently unfair.
Charles Meredith, president and owner of Randolph, Hale & Meredith electrical suppliers at 319 State St., said that he respects commissioners’ desire to study the issue, so long as they do return to it. He compared the potential use of eminent domain as a shortcut past negotiations for private developers to an unscrupulous old-West land grab.
“It’s kind of like someone putting a gun to your head and saying, ‘OK, we want to buy your property and here’s what we’ll pay you – take it or else,’ ” Meredith said.
Any real estate contract declares itself to be between “a willing seller and a willing buyer,” he said – but the threat of eminent domain makes it difficult to negotiate in good faith.
“I don’t go along with transferring property by governmental force from one private entity to another private entity,” Meredith said. “Eminent domain should be reserved, I think, for public projects. And I don’t mean redevelopment projects, but schools, roads and things like that.”
Prohibiting the use of eminent domain for private developers’ benefit would probably slow downtown redevelopment, Nash said.
“There’s going to be, in my opinion, kind of an ebb and flow of downtown redevelopment,” he said, noting that the original plan called for very slow movement, but that several large grants made some projects leap ahead of schedule.
Meredith said that he is not averse to moving his business – which has been downtown for more than 40 years – if he can stay in the same general area.
“But what I’ve been told by the previous people is, ‘We may never purchase you,’ ” Meredith said.
That leaves him in limbo, unable to figure out what to do or plan for, he said.
Commissioner Delane Simpson said that city staff will be talking to Meredith very soon about his concerns, and he hopes that more business owners will be consulted one-on-one.
“Absolutely, the people who have a vested interest in properties downtown must, as far as I’m concerned must, be made aware of what’s going on, just like we need to know what’s going on,” Simpson said.
In the meantime, lack of communication is actually costing local businesspeople money, according to Ed Wilbanks, owner of several pieces of downtown property. He offers himself and his building at 112 College St. as an example of the damage that mixed signals from the city can do. The city announced plans to buy it more than a year ago.
“They actually came down and looked at that property, made an appraisal on the property and made an offer – which was unrealistically low, but they made an offer – and sent a letter to all my tenants, saying they would have to move, all before we consummated the deal,” Wilbanks said.
One tenant did, he said.
“The end result is, they did not buy the property,” Wilbanks said. “But they told me they was taking it, either by my taking their offer or by eminent domain. They sent me a letter saying they had rescinded their offer, but it left me in kind of two bad positions.”
The building’s roof needed repair, but since the city said it would soon buy and demolish the building, Wilbanks waited. But the city took no action, and a leaky roof began damaging the interior, he said.
“In addition to that, I held another building open on Clay Street so that I could move into it, and one of my tenants to move into it,” Wilbanks said. “So I’ve lost rent on that building for a year. About $66,000 that’s cost me, in lost rent.”
Walker said that Wilbanks has told her his tale of treatment by the city.
“It’s just wrong,” she said. “It’s wrong that he was not kept informed.”
Nash said that he has heard complaints similar to Wilbanks’ and the Tarrances’.
“There is no doubt, in my opinion, that the city has done a poor job of communicating with downtown property owners,” he said.
Since taking office, Nash has talked to city staff and asked them to clearly define what properties they’ll be interested in within the foreseeable future. As a result, staff will meet with one property owner next week to tell him that he’s off the list, Nash said.
“I know that that’s one small step, but in order to get anywhere we’ve got to take that first step,” he said. “And I hope that that property owner – and other property owners downtown – at last feel like we’re trying to move in the right direction.”
The Odd Fellows lodge, 710 College St., has been tapped for purchase for an as-yet-undetermined new development adjacent to Circus Square, the large park that planners hope will become the centerpiece of a new downtown.
But the Odd Fellows, too, say that they’ve received conflicting and sketchy information from the city. The only clear message, according to lodge member Auston McCay, is that they will have to move out – sometime.
About two years ago, the city established a six-month moratorium on major building alterations downtown as a kickoff to its redevelopment plans.
“They came down there and told us then that our property wouldn’t be touched for 20 years,” McCay said. “That was probably around January or February of 2003. Then we see in the paper that fall that our property is going to be one of the next ones to be taken. Nobody had talked with us at all.”
After the city had the building appraised, silence fell. Odd Fellows trustees heard nothing – despite several attempted inquiries – until they sent a registered letter in fall 2004 to Richard Rector, who was then the city’s Housing and Community Development director.
He replied that the city would contact the Odd Fellows by Nov. 15, but that it would have no money available for purchase until at least that time, McCay said.
“We still have heard nothing further from anybody,” he said. “And if we move, we have no idea what our cost is going to be in moving.”
McCay helped organize the recent meeting between about 30 downtown business owners and new city officials, and says there are three main issues on downtown owners’ minds.
“The first thing is that they’re not necessarily opposed to moving, but they’re opposed to the idea that the city would come in under eminent domain and move out good, taxpaying businesses ... and maybe replace them with something else, that doesn’t pay near as much in property or payroll taxes,” he said.
Business owners are also unreassured about receiving adequate moving expenses from the city, and finding an affordable new location in an area zoned to allow their businesses, McCay said.
The third issue is the current deterioration of buildings because property owners have been told that the city won’t pay any more for recently repaired buildings, he said.
The city needs to pledge not to use eminent domain for private redevelopment projects, and re-evaluate its downtown goals, McCay said.
“I think we’re still millions of dollars away from completing somebody’s dream,” he said.
Consultant Will Linder of Berea authored the redevelopment plan, which city commissioners ratified in 2003. It lists a number of business types to avoid downtown, including “automotive.”
The Tarrances say they are puzzled by the seemingly arbitrary decisions on who to move and what types of businesses to discourage. All automotive businesses aren’t created equal. Unlike a junkyard or body shop, an auto upholsterer causes no visible mess, Melissa Tarrance said.
Built in 1933, the concrete-floored building with garage doors at either end has a long history of housing automotive-themed businesses, Terry Tarrance said.
He doesn’t mind moving, but shifting and arranging everything would cost him two weeks’ lost work, he said. And his $400-per-month rent is less than a quarter of what a comparable building would cost him elsewhere in the city.
If the city wants to put businesses within walking distance of downtown residents, Terry Tarrance asks, won’t there be a need for auto-repair shops nearby?
Word of the city’s plans has already hurt DJ’s business, the Tarrances say. Their work carries a one-year warranty, and customers now wonder if that will be honored if the business isn’t there.
“We’re not interested in the money,” Melissa Tarrance said. “We just want to stay here.”
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