Just after noon on Dec. 4, 2011, Eric Graham was taking a nap when a loud, buzzing whine from his backyard awakened him — the sound of chainsaws.
Graham leapt out of bed and hurriedly dressed to investigate. What he found, he says, both surprised and angered him. He says some 20 people were mowing down dozens of bamboo trees in a creek-side ditch on his property, under the personal direction of District 16 Councilman Tony Tenpenny.
That the bamboo trees are gone — felled during what Tenpenny describes as a constituent-mandated crackdown — is beyond dispute. Almost everything else about the incident is unclear, however, thanks to the gray zone of Metro laws governing easements, the city's right to use someone else's property to access features such as roads and creeks.
According to Graham, Tenpenny, accompanied by volunteers from his district and the adjacent Faith Free Will Baptist Church — which butts up against Graham's property — told him he was conducting a neighborhood cleanup to eradicate an alleged homeless problem in the area. What's more, Graham says, Tenpenny told him they were operating on a creek easement and did not need to notify Graham that they were sawing down his bamboo.
Tenpenny disputes that the trees were on Graham's property, calling them "overgrowth." He also says that by calling in the chainsaws, he was merely serving his constituents.
"We did it because we had homeless sleeping there," Tenpenny says. "We had drug dealing going on over there, and it was being a nuisance to the neighborhood."
Graham says all this is news to him.
"Where is this homeless problem?" Graham asks. "This is my property, and I think I'd notice it if people were trespassing back here. In fact, people came out here with chainsaws, and I noticed that pretty quick."
The imbroglio has angered Graham, 37, a stocky man with a wiry, silver-threaded ZZ Top beard and soft-spoken voice. He has lived at his Woodbine-area home since his father, Robert, bought it in 1984.
As the saws were going to work, Graham says he called the police. MNPD spokesman Don Aaron said in an email that Officer Garrett Kidd was dispatched to Graham's home that afternoon "within minutes," and that Kidd "determined that this was a civil, not a criminal matter, and so advised the parties." Officer Kidd ultimately sided with Tenpenny.
Graham feels that his property rights were violated.
"I thought, 'What the hell is going on?' " Graham says. "[Tenpenny's] got the freedom to come up, trespass and destroy my property, yet I don't have the freedom to protect my property?"
Councilman Tenpenny sees it differently. He says that he and his crew of volunteers were operating on a "Metro easement" for the creek that runs between Graham's property and Faith Free Will Baptist Church. Because of the legal nature of easements — which grant nearly unilateral action on properties regardless of the owner's consent — individuals, including municipalities, can conduct specific activities such as maintaining waterways and digging for utility lines, so long as they are granted in writing by the deed holder.
Graham alleges that the bushwhackers went beyond the easement and destroyed trees that he enjoyed for privacy. For his part, Tenpenny laments the loss of Graham's bamboo, and says that he had some replanted.
The Davidson County Property Valuation Administrator's official MetroMap zoning software confirms that Graham's boundary line extends past the creek and butts against the church's parking lot. But whether the crew went beyond the easement remains a matter of contention.
Easement records housed at Davidson County Register of Deeds that were reviewed by the Scene call into question the legality of the cleanup crew's actions, based upon easements granted to Metro for Graham's lot. Although the records are unclear as to the length of Graham's easement, they are specifically granted for utility work, sewage and storm drainage.
Ross Pepper, a property rights lawyer with Pepper & Brothers, says that while he's reluctant to comment too much without personally examining the records, he thinks that the cleanup's execution is dubious relative to the specific easements.
"If this was some kind of neighborhood cleanup and they just took stuff out that they didn't like because they thought it was becoming a bad area for the homeless, I'm not sure they have the authority to do that," Pepper says. "I don't know under what authority they can do that."
Tenpenny says neighbors and members of Faith Free Will Baptist contacted his office, claiming that a transient population routinely utilized the cover of Graham's bamboo to conduct drug transactions.
"The church had expressed that at certain times when they have Bible studies, the seniors come down there at night, and it was getting to the point that drug dealing was going on down there," Tenpenny says. "What was going on was the seniors and neighbors were very concerned about that spot right there. I had had several calls about cleaning that ditch completely out, so we had a neighborhood cleanup, and we cleaned the ditch out."
Graham isn't convinced. But with a job as a home remodeler, he says he doesn't make enough to take the issue to court.
"I voted for this man," Graham says, shaking his head. "I feel ridiculous."
Taking a middle stance is Robin Moore, a longtime member of the church and a Metro employee. She chides both Graham and Tenpenny for poor communications before, during and after the incident. She believes the ditch badly needed cleaning up, suggesting Graham could've been cited for overgrowth. But she attended service on the day of the cleanup, and she says Tenpenny's crew arrived unannounced. Tenpenny had good intentions but went about it the wrong way, she adds. She also says she never heard anything about homeless people or drugs in the area.
Moore tried to make amends with Graham, replacing some of his bamboo and offering him access to church amenities.
"I told Eric, 'I'll be the first one to grieve with you that the government has too much of its hands in our business,' " Moore says. As for Tenpenny, she says, "I believe he should've dealt with it in a better way to ensure that everybody was informed. But at the same time, he's a new councilman ... and he's going to make mistakes."
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