Wednesday, January 20, 2016

Opinion: Conservancy Controls Greensward

Posted By on Wed, Jan 20, 2016 at 2:15 PM

click to enlarge "Exhibit A" in Smith's opinion shows a red boundary line for areas controlled by Overton Park Conservancy, including the entire Greensward. - CITY OF MEMPHIS DIVISION OF PARK SERVICES
  • City of Memphis Division of Park Services
  • "Exhibit A" in Smith's opinion shows a red boundary line for areas controlled by Overton Park Conservancy, including the entire Greensward.

The Memphis Zoological Society (MZS) does not control any portion of the Overton Park Greensward and, until recently, never believed that it actually did, according to a legal opinion issued Wednesday from an attorney hired by the Citizens to Protect Overton Park (CPOP).

Legal authority of the Greensward belongs to the Overton Park Conservancy (OPC), according to the opinion from Memphis attorney Lawrence J. Smith.

This authority was granted by the Memphis City Council in December 2011 when the council approved the OPC’s operating agreement. A map included with Smith’s opinion shows the “Overton Park Conservancy Management Area” from the city’s agreement. That area includes all of the Greensward.

“Further evidence of the OPC’s authority can be seen through the various community events the OPC has staged upon the Greensward as well as the OPC’s complete upgrade and rebuild of the playground, repair and maintenance of Rainbow Lake, tree plantings around the Greensward, and routine lawn maintenance, and litter clean up by OPC contractors,” Smith said in his opinion.

His opinion also answers a second question: Is there a conflict between the Memphis Zoo’s operating agreement and the Overton Park Conservancy’s operating agreement? The short answer from Smith: no.

But Smith said the zoo has asserted that its 1994 agreement with the city and its “constantly changing master plan that is not publicly available” gives them the right to park cars on the Greensward. “Nothing in the record indicates this as a fact.”

Still, Smith writes that the 1994 agreement does say the city will provide at “at no cost to MZS, such additional land for parking or additions to the Zoo, as may from time to time be requested by MZS and approved by MPC.” Smith said this is the extent of parking discussed in the agreement.

The opinion points to a 1998 master plan map done by Ritchie Smith Associates for the entire park and it shows “nothing to indicate the zoo’s intent to control the Greensward.”

“In fact there is good evidence that the zoo never believed it had the legal right to control the Greensward, i.e., the zoo’s public participation in the creation of the OPC without objection to the clear boundary map contained in the OPC agreement,” the opinion said. “Further, the OPC raised funds and produced a map for a tree-planting project around the Greensward in 2012, inside the zoo’s alleged parking area. The zoo was informed of this proposed project by the OPC in advance and the zoo did not object or raise concerns about a conflict in the agreements or any prior rights to the Greensward.”

Smith’s opinion also notes that if the zoo board believed it had authority over the Greensward, it would not need to file a lawsuit to prove it.

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