Federal Law (“Section 4(f)”) requires special procedures be followed when you want to take any park land in order to build a roadway across a public park.
The issue even went to the Supreme Court in 1971 (“Citizens to Preserve Overton Park v. Volpe”)- In the published opinion in that case Justice Thurgood Marshall wrote, “Section 4(f) ‘is a plain and explicit bar to the use of federal funds for construction of highways through parks; only the most unusual situations are exempted.’ Further, the court recognized the place of cost, directness of route, and community disruption in highway routing, but that the existence of the statute “indicates that protection of parkland was to be given paramount importance.”
So, according this Federal Law, what is a “Park”? Well, the law makes no distinction, nor definition of a park. Section 4(f) does not say that only “recreational areas” of a park are protected- thus, all areas of any public park are protected. Further, Shelby Farms Parkway officials, and the Memphis and Shelby County Mayors (current and previous) have each stated numerous times that Shelby Farms Park is 4500 acres.
The law does allow that “some” of the park can be taken for a roadway, if certain procedures are followed. Two of those procedures are that- 1) The public must be told that they have a say-so in any “de minimis determination” (meaning they have the right to comment on whether they feel the impact is “negligible”), and 2) “the officials responsible for the park” must declare in writing that the plans, including “mitigations”, will have “de minimis” impact on the park. (Note that the Executive Director of Shelby Farms Park Conservancy has done so in a letter to TDOT on June 2, 2014. See comment about the letter below.)
Well, here is what’s wrong any de minimis determination, and with the Conservancy’s letter:
- The Conservancy’s letter claims that the Conservation Easement specifically excludes “Alignment Q”, which is TDOT’s current planned alignment. Actually, the Appendix of the Easement excludes a non-specific right of way for a parkway. On the other hand, the first paragraph of the “Grant” section of the Easement requires that the Conservancy to “protect, maintain, preserve, and enhance” the “conservation, natural, scenic, … [17 environmental attributes of the Property]”.
- The public was never informed of what “de minimis” means, and what their role is in determining if the impact should be considered to be minimis”.
- TDOT even stated that “We never define ‘de minimis’ in our public notices.”
- Plans for the road require over 128 acres of park land to build the road.
— This number of acres is 3 times bigger than the biggest de minimis ever granted anywhere in the country.
- Plans for the road require 11 lanes of traffic in the interchange they propose to build.
- The entire Park is protected by Section 4(f), not just “recreational areas”. But, TDOT’s planners have attempted to claim that only the recreational areas are protected. The 4(f) law makes no such distinction.
- TDOT’s public notice of their September 24, 2013 Public Meeting was published with 2 different times, thus confusing the public.
- TDOT’s public notice of this same public meeting had an incorrect map of the planned location for the road, thus further confusing the public, and never documenting the size of the interchange, the number of acres to be taken, or the environmental issues of the correct location.