Can a landowner erect a quarry on his own private property if he so pleases?
What if that landowner wants to erect a rock quarry that could potentially threaten Old Hickory Dam, neighboring properties, and every community living downstream?
United States Rep. Jim Cooper, state legislators, Mayor Barry, Metro Council, and organized local residents have tried unsuccessfully to change laws and otherwise impede the plans for a quarry.
At issue is 155 bucolic acres at 771 Burnett Road in Old Hickory. The owner, Preston Murray III, and his legal team seem to have won the favor of the legislature.
“Last week’s irresponsible decision by the legislature degrades our recreational area, ruins the peace and tranquility of a neighborhood, and endangers all homes and businesses downstream of Old Hickory Dam. The Corps of Engineers has no jurisdiction over private land, but I invited Brigadier General Richard Kaiser to visit Nashville, and we will tour the Old Hickory Dam and Locks on March 29. My hope is that we can persuade the Corps that while they lack jurisdiction, they have an interest in protecting the Dam and Recreation Area. This is not over. We must find a solution,”says U.S. Rep. Jim Cooper (TN-05).
Mayor Megan Barry plans to meet with Kaiser too. “I’m incredibly disappointed that lawmakers from outside of Nashville ignored the warnings of Congressman Jim Cooper, State Rep. Bill Beck and others who fought to stop the quarry in Old Hickory,” the mayor said in a statement. “Councilmembers Larry Hagar and Kevin Rhoten have been working hard to stop this quarry, and I will continue to work with them, along with our state and federal delegation, to do what we can to keep Old Hickory residents safe and protect the city of Nashville.”
Just what are the property owner’s rights? The Banner has learned that an Army Corps of Engineers report says a quarry “will pose a likely hazard to the public” in the adjacent recreation area and the surrounding neighborhood, starting with the homes just across the street.
Christopher Serkin, Professor of Law at Vanderbilt Law School, says the law protects neighbors. “Property rights do not generally include the right to harm other people,” Serkin said. “It is no infringement of property rights to tell someone that they cannot expose to their neighbors to an unreasonable risk of harm.”
“Tennessee often ignores the very important property rights of the community when deciding whether or not to regulate. It is important to remember that neighbors have property rights at stake as well. Failing to regulate may be infringing on neighbors’ property rights at least as much as regulating would be infringing on the rights of the regulated owner. The Supreme Court recognized precisely this point almost 100 years ago, when it approved comprehensive zoning. The Court reasoned that zoning was not primarily infringing on people’s rights, so much as it was protecting the rights of neighbors to be free from noxious uses nearby. If someone today wanted to open a feedlot or slaughterhouse in the middle of a residential neighborhood, or even at the edge, owners in that residential neighborhood could reasonably expect the legislature to act to protect their property rights by prohibiting the noxious use nearby,” Serkin said.
Photo: Amy Eskind.
The site is zoned for industrial use. A new land use policy adopted last year by Metro Council calls for a buffer, but it is unclear whether the policy can be applied to this property, since the owners were working on the project before the law was passed.
More bills are coming down the pike at the legislature, and area homeowners are planning a public meeting. The final decision will come down to Tennessee Department of Environment and Conservation (TDEC), which must decide whether or not to issue the National Pollutant Discharge Elimination System permit necessary for the quarry to operate. TDEC’s Division of Water Resources has invited the public to a two-hour technical session and a formal hearing on the permit application on Monday, April 18th.
