Here’s the latest on the Cordova Triangle lawsuit
Both sides wait for Alderman Massey to give deposition
Almost a year-and-a-half after the first lawsuit was filed contesting Germantown’s move to rezone the Cordova Triangle property again, a second, separate lawsuit continues to work its way through Shelby County Chancery Court. That leaves the land in legal limbo as residents and city officials continue to debate the smart growth plans that spurred the land’s first rezoning more than a decade ago.
That first lawsuit was dismissed last year but a second, filed in November 2018, was also brought against the city by the owners of the Owens Tract, which covers 13 acres of the more than 17-acre Cordova Triangle, a triangle-shaped property bordered by Germantown, Neshoba and Cordova roads across Germantown Road from the Germantown Performing Arts Center.
The lawsuit has now come to something of a standstill, attorneys said, as both sides wait for Alderman Dean Massey to give a deposition.
A deposition date had been set in October, but shortly after beginning, Massey said he did not want to continue without consulting an attorney who is not affiliated with the city of Germantown, Ed Mckenney, an attorney representing the city said. Now, the attorney representing the Owens family has filed a motion in Chancery Court to compel Massey to be deposed, though no hearing date has been set and no new deposition date has been set.
Massey confirmed on Wednesday that he did not want to proceed with a deposition without an independent attorney, saying he was concerned Mckenney was representing the interests of the city administration, not the aldermen.
At a board of mayor and aldermen meeting Monday, Massey requested a discussion about the city funding outside legal counsel for the aldermen.
“I have questions that I need reviewed by independent counsel, and I need the city to help fund that,” he said. “I believe that the public would support funding of aldermen to be able to sit down and seek legal advice from independent outside counsel.”
Cordova Triangle rezoning
The 17.77-acre lot was zoned “general urban,” allowing for single-family homes and apartment buildings as well as retail or office space in buildings up to three stories, in 2007. Last year, it was rezoned for residential, single-family home development after a sustained outcry from people who lived near the property.
At a planning commission meeting in July 2018, city officials said no developments had been proposed for the land — Owens Tract owners said at least one developer had expressed interest but backed away after the city’s apartment moratorium was put in place in early 2018 — but that reverting to residential zoning would be more in line with the surrounding neighborhoods.
After the planning commission approved the rezoning — but before the zoning change had been finalized by the board of mayor and aldermen — a petition against the proposed rezoning was filed by the Owens family. In it, their attorney argued the value of the land would be degraded from $8.5 million to $1.3 million if the residential rezoning was ultimately approved. The plaintiff also argued that the rezoning was a political move ahead of 2018 city elections in which two aldermen seats and the mayor’s office were up for election.
Attorneys representing Germantown have maintained that the rezoning was in the best interest of the city and that it was a mistake for the area to have been given urban zoning years ago.
That petition was dismissed in chancery court in August 2018 with a chancellor ruling the court could not intervene in the city’s legislative process. The ruling was appealed, but the appeals court upheld the chancery court ruling.
In the meantime, the city gave a third and final vote in favor of rezoning the property in October 2018. While the rezoning passed 3-0 — Alderman Forrest Owens was absent and Alderman Rocky Janda abstained from voting — the discussion was not harmonious. Massey, who said he thought the property never should have been zoned “general urban,” was interrupted numerous times as he spoke and Janda accused him of giving out information that could be detrimental to the city in the lawsuit.
Discussion denied
On Monday, Massey said he had emailed the mayor requesting a discussion of independent legal counsel for aldermen be put on the meeting agenda. Mayor Mike Palazzolo acknowledged the email but did not elaborate on why the item had not been placed on the agenda and did not grant Massey’s request to add the discussion mid-meeting.
Massey appealed to his colleagues to overrule the mayor.
“There are issues pertaining to aldermen that are exclusive to aldermen,” he said. “I think it’s very important that we each receive independent legal counsel.”
While Alderman Scott Sanders said he’d be interested to hear Massey’s reasoning, Janda said he was “at a loss” for why aldermen would need outside counsel.
Alderwoman Mary Anne Gibson said before aldermen voted on the rezoning last year, they had been advised by the city attorney on how they should frame their comments about the property and the rezoning vote.
“There was discussion about things that could be said and things that could not be said from this dais,” she said. “The actions of an alderman, if they chose to speak in conflict with what we had been advised by our city attorney, I can see where there would be a need for a private attorney. I don’t think the citizens of Germantown should pay for that.”
In the end, the board voted 3-2 not to discuss the idea of outside legal counsel for aldermen on Monday. It is unclear if a discussion will be held at a future meeting.
Mckenney, the attorney representing the city in the lawsuit, said both parties to the suit wanted to see Massey give a deposition, but it was not clear how things would move forward at this point. He said the situation was unique and he had not seen something like it in decades of practicing law.
Richard Winchester, the attorney representing the Owens family, said he planned to depose other Germantown aldermen, but that he wanted Massey to be first.
Corinne Kennedy is a reporter for The Commercial Appeal. She can be reached via email at Corinne.kennedy@commercialappeal.com or on Twitter @Corinneskennedy.
Corinne S Kennedy