Memphis, History & Politics

Wednesday, November 11, 2015

Preserving Overton Park, Part 1: A Bunch of “Little Old Ladies” Get the Supreme Court to Stop an Interstate Highway


In 1956, the juggernaut of progress that was Eisenhower’s interstate highway system was just getting a massive shot in the arm with federal funding to states at 90% of the cost.  The Tennessee Department of Transportation (TDOT) came up with a plan to use federal funds to put the new I-40 straight through the middle of Memphis including right through Overton Park. Using parks to build roads was popular with planners then because governments could save money using land they already owned or could take from cities. A group of mostly ladies organized to oppose the plan. They initially called themselves the Committee to Preserve Overton Park.  It ended up being a 15 year fight that involved political scraps at the city, state and national level, the largest environmental groups in the country and a legal fight that resulted in a landmark Supreme Court decision affecting every subsequent case where someone sues to stop the federal government from changing their community and environment.

What’s Worth Preserving?

In 1901 the City of Memphis bought 342 acres of land on the extreme East side of town including 200 acres of virgin forest and created their first city park. As of today, 142 acres remains forest.  Even in 1901 virgin forest was rare, with virtually all of the forest in this area having been cut over at least once and often twice. The older trees in the Park are now 200 -300 years old. The very oldest are over 500. A shumard oak and a pawpaw are unofficially the largest examples of their type in the state.  Some 70 species of trees, 50 different types of birds and 247 native flowering plant species are found in the forest.  

The park was developed according to the design of George Kessler, one of the most prominent landscape architects of the time and he designed it as part of a system of parkways which connect Overton Park with Riverside Park.

George Kessler's original design for Overton Park
“In Overton Park you have saved the other chief characteristics of this region by preserving in the forest conditions of the virgin forest upon that property. Nowhere in the United States, except in the Pacific Northwest, will you find tree growth as luxuriant as in the Western Tennessee and Eastern Arkansas forests, and in the two hundred acres of virgin forest in Overton Park you have a property which, as a heritage to the public for the enjoyment of nature, equals in value the cost of the entire park system to the present time.” – George Kessler in 1911

From the first decade of the 1900's

By 1956, the City had grown around Overton Park.  It sits on Poplar Avenue, the main artery of the City and is bounded by equally large North and East Parkway. Fashionable, stable neighborhoods had developed on all four sides of the Park in the 20’s and 30’s. Within the Park, the City had built a golf course, a zoo, the City’s best art museum, a stunning new building for the Memphis Academy of Art, a formal garden, and an outdoor amphitheater that hosted everything from light opera to, most famously, Elvis concerts. It had become an urban park with open spaces for recreation that were the largest in the center of town.

The Push to Build America’s Interstate Network

Also in 1956, the Federal Highway Aid Act was passed with the intention of stepping-up the creation of a network of interstates within the US as both a transportation system and for civil defense. Previous efforts had offered federal funds to support states efforts to construct interstates, but the 1956 law offered 90% federal aid which saw projects begin to take off in earnest.  A plan for the Atlantic to Pacific route of Interstate 40 went through the length of Tennessee and the State government planned a route that went East-West straight through the middle of the City as well as a beltway that looped over the North and South sides.  The plan for the route through the middle of the City was published in the papers in 1956 with construction set to begin the next year. The articles showed the route going through Overton Park.  One source I’ve read said that 300 acres, or virtually all of the Park would have been taken by the project.  The Committee to Preserve Overton Park was formed in 1957 entirely as a grassroots effort.  They were residents of the neighborhoods, members of the Garden Club and other individuals concerned that the Park was too valuable to lose. The City Commission held a hearing in 1957 and the opposition was near unanimous. Over 300 citizens turned up to protest and the mayor (then basically the chair of the Commission) was opposed.  The Commission voted to instruct the City’s engineers to develop alternative plans.

A 1963 Esso map shows I-40 entering the Overton Park in the middle of the East side and taking a diagonal swing to the Northwest. This doesn't seem to be a guess on their part because later Esso maps show the compromise route change.

That may have seemed the end of interstate planners' designs on the Park at the time. Ultimately, though, the authority in the development was held by the state with the required approval at the federal Department of Transportation level.  In 1961 it was clear the State was still pushing this route when a local hearing was announced as required by federal law.  Over the next three years, a compromise route was proposed that shrunk the route to 26 acres, roughly following the bus lane which ran by the zoo. Though that lane was 40 feet wide and only allowed the City’s buses, the interstate’s proposed right of way was between 250 and 450 feet wide through the park.  This would cut off the Zoo and part of the forest from the rest of what would be left of the park. Support for this new proposal from downtown interests as well as the local papers resulted in approval  of this route by the City Commission in 1965 and property condemnation and construction on the route east and west of the Park began.  Neither the group now called Citizens to Preserve Overton Park (CPOP) nor any other citizen had any further legal rights to stop the construction.

The compromise route

Then in 1966, Congress passed the Federal Aid Highway Act of 1966 and the Department of Transportation Act which restricted using public parks to build federal highways only when there was no “feasible or prudent alternative.” CPOP became more politically active with efforts in both the state legislature and the newly formed City Council to stop the slated construction through the Park.  In 1968, the Council voted to oppose the route through the Park. Within a month, Federal Highway Administration officials and engineers had met with the council and within a day of that, the Council reversed their decision. It was made clear that all local federal highway aid was at stake. The Secretary of Transportation, John Volpe, approved the route, but at no point was there an official statement that there were no feasible or prudent alternatives.  CPOP then took the decision to test out the new law and filed suit in the District Court of Washington, D.C.

Lawsuit

The case was moved to the Western District of Tennessee Federal Court when TDOT was added as a defendant. The Sierra Club and the Audubon Society joined CPOP as plaintiffs. CPOP lost at the trial court level and they lost on appeal to the Sixth Circuit Court of Appeals. At this point it’s worth considering that the Supreme Court did not necessarily need to take this case. After all, hadn’t the City, the State and the federal government accepted public input? Hadn’t they considered or at least listened to all of the concerns of the citizens that the law required before they made their ultimate decision?  Why is this an issue for the Courts and not simply a political matter? The trial court and the Court of Appeals agreed with this argument by the state and federal government. The City Council had approved, the land along the route on either side of the park had been acquired and buildings were cleared. What was the alternative now and wasn’t that question ultimately up to the Secretary of Transportation and not for a court to second guess?

The majority of the Supreme Court decided that the wording of the law had to be followed, regardless of whether the decision was up to the Secretary. The decision had to consider prudent and feasible alternatives and they had to show how the Secretary arrived at the decision. The Secretary cannot make a decision that is “arbitrary and capricious” and that cannot be determined without an account of how he arrived at the decision. This impacted the discretionary authority of the Secretary of Transportation clearly because of the 1966 legislation and eventually impacted other federal agencys' decision especially where decision making impacted local communities and environmental resources. The case has been cited in over 5,400 subsequent case opinions.

Aftermath

The Supreme Court’s decision did not kill the interstate or even the route through the Park outright. The case returned to the trial court, there was a 25 day trial to determine if the Secretary had failed to consider alternatives (it was found he hadn't) and the DOT continued to fight the case for another two years. TDOT held on for another 15 years with various proposed ways to go through the park. There were tunnels, side by side and over and under and then there was the so-called cut and cover where giant vents would be placed over the interstate in the park. There is a lovely artist’s rendering of this concept hanging in the reception area of the Memphis Office of Planning and Development last time I was in there.  The Secretary of Transportation never approved another plan, though some plans they suggested were rejected by TDOT as too expensive, such as the tunnels. By 1987 the State apparently gave up and deeded the right of way through the park back to the City. New houses were built over much of the neighborhoods that were demolished. I-40 was officially routed over the North loop. The partially built section of interstate was given to the City and named Sam Cooper Boulevard.


Saving the Park from the interstate may be the largest fight likely to occur, but it is not the last one and it continues to this day.  I will cover more recent threats to the assets of the Park in future installments.

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