IN THE CHANCERY COURT OF SHELBY COUNTY, TENNESSEE
FOR THE THIRTIETH JUDICIAL DISTRICT AT MEMPHIS

MEMPHIS ZOOLOGICAL SOCIETY a/k/a
MEMPHIS ZOO, INC.,
Plaintiff,
vs.
OVERTON PARK CONSERVANCY,
The CITY OF MEMPHIS, and
The MEMPHIS CITY COUNCIL,
Defendants.

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Case No.: CH-16-0096
Part III

ANSWER AND COUNTERCLAIM
OF OVERTON PARK CONSERVANCY

TO THE HONORABLE CHANCELLORS OF THE CHANCERY COURT OF SHELBY
COUNTY TENNESSEE FOR THE THIRTIETH JUDICIAL DISTRICT AT MEMPHIS:
COMES NOW Defendant Overton Park Conservancy (“OPC”) and, in response to the
Amended Complaint for Declaratory Judgment of Plaintiff Memphis Zoological Society a/k/a
Memphis Zoo, Inc. (“MZS”), states the following:
In response to specific allegations in the Amended Complaint for Declaratory Judgment
(“Complaint”), OPC will use the Arabic numbers utilized by Plaintiff. MZS’s introduction,
however, contains no numbered paragraphs and instead presents a narrative. OPC will respond in
kind.
I. INTRODUCTION
MZS does not now have, and has never had, an exclusive right to operate and manage
any portion of the Greensward. Rather, until the City of Memphis (“Memphis”) entrusted the
care and maintenance of Overton Park (specifically including the Greensward) to OPC in 2012,

 the Greensward was under the exclusive control of Memphis. This conclusion flows inescapably
from a fair reading of the contracts at issue and the parties’ course of conduct over the last few
decades. Indeed, for many years and as late as 2014, MZS requested permission from Memphis
to allow the use of Greensward for overflow parking. Obviously, these requests would have been
unnecessary had MZS actually maintained “[f]or over two (2) decades … the exclusive right to
operate and manage the portion of the Greensward it issue,” as alleged in the Complaint.
The gravamen of MZS’s claim centers on Exhibit A to its Complaint, which it describes
as the zoo’s “Master Plan.” (See, Complaint§ ¶¶ 16, 18.) As is explained below, however,
Exhibit A is not the zoo’s master plan and does not, in any way, define the scope of MZS’s
contractual rights to control the portion of Overton Park occupied by the zoo, as it was
significantly revised prior the execution of the agreement between MZS and Memphis.
Therefore, MZS’s reliance on Exhibit A to its Complaint is misplaced.
Nearly thirty (30) years ago, at the conclusion of extensive discussions among a variety
of stakeholders (including MZS, Memphis, neighborhood organizations, and others) regarding
the layout of Overton Park, Memphis approved the 1988 Overton Park Master Plan that carefully
delineated how each section of Overton Park would be used and maintained. 1 In 1986, before the
formulation of the Overton Park Master Plan, which was adopted and approved in 1988, L. Azeo
Torre at Design Consortium, Ltd was retained to draft a proposed zoo master plan that included
the use of the northern portion of the Greensward for paved parking (“1986 Proposed Zoo
Plan”). Before and after the adoption of the 1988 Overton Park Master Plan, zoo officials worked
with Memphis and others to harmonize the 1986 Proposed Zoo Plan with the 1988 Overton Park
Master Plan, which had been approved and adopted by Memphis.

1

OPC has attached the 1988 Overton Park Master Plan, which MZS ignores in its Complaint, hereto as Exhibit “1.”

2

 In fact, even before the 1988 Overton Park Master Plan was adopted and approved by
Memphis, zoo officials tasked Torre, who had created the 1986 Proposed Zoo Plan, to work with
Memphis officials and others to participate in the formulation of the 1988 Overton Park Master
Plan and to make appropriate revisions to the 1986 Proposed Zoo Plan to conform the zoo’s
plans to the plan that was eventually memorialized as the 1988 Overton Park Master Plan. For
example, on December 23, 1986, Torre met with members of the Memphis Park Commission
and others to discuss the layout of Overton Park and the Memphis Zoo that would be established
in the Overton Park Master Plan. This meeting included discussion of the expansion and
modernization of the zoo, plans for parking, and the preservation of the Greensward and other
portions of Overton Park for use by the public. Similarly, on December 1, 1987, Torre again met
with representatives of Memphis to continue these discussions, as well as to discuss the
disposition of Rainbow Lake and the further expansion of the zoo into the virgin, old-growth
forest.
As a result of these meetings and many others, Torre revised and amended the 1986
Proposed Zoo Plan, creating the June “1989 Zoo Phase 1 Master Plan,” 2 which, like the 1988
Overton Park Master Plan, does not contemplate the use of the Greensward for parking. The
layout of the 1989 Zoo Phase 1 Master Plan and the 1988 Overton Park Master Plan largely
match the present, actual configuration of Overton Park, while the 1986 Proposed Zoo Plan does
not. Similarly, the zoo’s current master plan, which was accessible on its website, was created in
2001 and tracks the layout of the 1989 Zoo Phase 1 Master Plan, the Overton Park Master Plan,
and the actual layout of Overton Park. 3 The zoo’s current plan, like every other plan except the
1986 Proposed Zoo Plan, does not contemplate parking in the Greensward. As such, MZS’s
2

A copy of the 1989 Zoo Phase 1 Master Plan is attached hereto as Exhibit “2.”

3

A copy of the zoo’s current master plan is attached hereto as Exhibit “3.”

3

 insistence that it has exercised the exclusive right to operate and manage the Greensward is
simply not supported by any evidence and is contradicted by the zoo’s own current master plan
(to say nothing of the conduct of all of the parties over the last few decades).
Astonishingly, even though MZS acknowledges that the 1986 Proposed Zoo Plan was
amended in 1989, 4 and even though the 1986 Proposed Zoo Plan is dated “February 1986” rather
than a date in 1989, MZS attached the 1986 Proposed Zoo Plan to its Complaint as Exhibit A and
argues that this 1986 plan, which was substantially modified in 1989, is the “Master Plan”
referenced in the 1994 Zoo Management Agreement. Tellingly, MZS has not attached the 1989
Zoo Phase 1 Master Plan to its Complaint.5
The 1986 Proposed Zoo Plan, upon which MZS bases its entire claim, does not apply and
is not relevant to this lawsuit. Not only does it show paved parking in the Greensward, but also
shows Rainbow Lake and Rainbow Lake Playground as being within the boundaries of the zoo.
Incredibly, it also shows two paved roads to be built directly through Veterans Plaza and the
Greensward itself. Based on the foregoing, however, it is patently obvious that 1989 Zoo Phase 1
Master Plan, as opposed to the 1986 Proposed Zoo Plan, is actually the “Master Plan” referenced
in the 1994 Zoo Management Agreement. MZS’s argument that a 1994 agreement relied on a
plan proposed in 1986 rather than the 1989 Master Phase 1 Zoo Plan, which incorporates
numerous revisions to the 1986 Proposed Zoo Plan, is contrary to the facts and defies logic,
particularly considering that it is the 1989 Zoo Phase 1 Master Plan (and not the 1986 Proposed
Zoo Plan) that was actually put into effect, designed, and built.

4

See, Complaint, ¶ 16.

5

The 1989 Zoo Phase 1 Master Plan was distributed by MZS or its agents and even appeared on promotional
brochures used by MZS for fundraising. The 1989 Zoo Phase 1 Master Plan is signed and dated (1989) by Torre and
is identified as the Phase 1 plan.

4

 On January 13, 2012, OPC and Memphis entered into the OPC Management Agreement. 6
Per the OPC Management Agreement, the geographic scope of OPC’s management of Overton
Park is described and illustrated in Exhibit C 7 to the OPC Management Agreement, which
excludes the Memphis Zoo and assigns to OPC the entire Overton Park Greensward. Indeed, the
intent of Memphis to assign the entire Greensward to OPC management is made clear using red
lines on the map and by specifically designating the Greensward as part of “OPC Managed
Areas.” Critically, Exhibit C to OPC Management Agreement is the only document that indicates
that the Greensward is to be controlled by any entity other than the City of Memphis, and it does
so by unambiguously and unequivocally granting OPC exclusive control and management over
the entire Greensward.
II. PARTIES
1.

OPC lacks sufficient information to admit or deny the allegations of paragraph 1.

2.

OPC denies that any portion of the Greensward is encompassed by the operative

Master Plan of the Memphis Zoo or subject to the control or management of the Memphis Zoo.
Upon information and belief, OPC admits the remaining allegations of paragraph 2.
3.

OPC admits the allegations of paragraph 3.

4.

OPC admits the allegations of paragraph 4.

5.

Upon information and belief, OPC admits the allegations of paragraph 5.

6.

OPC admits the allegations in the first sentence of paragraph 6. OPC lacks

sufficient information to admit or deny the remaining allegations of paragraph 6. In addition,
OPC asserts that Defendant Memphis City Council (“City Council”) is not a proper party to this
6

The OPC Management agreement is attached to MZS’s Complaint as Exhibit C.

7

Exhibit C to the OPC Management Agreement is color-coded, and the copy of this exhibit attached to MZS’s
Complaint is of poor quality and is difficult to read. Accordingly, OPC has attached a higher quality image of
Exhibit C to the OPC Management Agreement hereto as Exhibit “4.”

5

 litigation, as none of the substantive allegations in the Complaint identify relevant conduct by the
City Council, and the City Council is not a party to any of the agreements attached to MZS’s
Complaint.
III. JURISDICTION AND VENUE
7.

OPC admits the allegations of paragraph 7.

8.

OPC admits the allegations of paragraph 8.
IV.

FACTS GERMANE TO THE RELIEF SOUGHT

Overton Park and the Greensward
9.

OPC admits the allegations of paragraph 9.

10.

OPC admits the allegations of paragraph 10.

11.

OPC admits the allegations of paragraph 11.

12.

OPC admits the allegations of paragraph 12.

13.

OPC admits that the Greensward is located adjacent to one of the paved parking

lots used by the Memphis Zoo. Between the Greensward and the adjacent parking lot are Hollies,
trees, a drainage area (including a concrete ditch), as well as a rustic wood car barrier specifically
designed to “prevent[] cars from moving from the Zoo lot to the green space immediately
surrounding the Zoo lot.” (Memphis Park Commission’s Policy Statement in Regard to Parking
for the Memphis Zoo in Overton Park, approved unanimously on December 14, 1989 (a copy of
which is attached hereto as Exhibit “5.”)
The Memphis Zoo
14.

OPC admits that the Memphis Zoo is located in Memphis, Tennessee but lacks

sufficient information to admit or deny the remaining allegations of paragraph 14.
15.

OPC admits the allegations of paragraph 15.

6

 16.

OPC admits that, in 1986, Design Consortium, Ltd. created a proposed master

plan for the Memphis Zoo and Aquarium (previously identified as the “1986 Proposed Zoo
Plan”). OPC further admits that, in 1989, MZS revised the 1986 Proposed Zoo Plan. As
discussed above, these revisions were the result of extensive discussions with Memphis and
others to determine how best to conform the 1986 Proposed Zoo Plan to the 1988 Overton Park
Master Plan. These revisions are memorialized in the 1989 Zoo Phase 1 Master Plan.
17.

OPC denies the allegations of paragraph 17 on the basis that the document MZS

refers to as the “Master Plan” is actually the 1986 Proposed Zoo Plan. OPC avers that the 1986
Proposed Zoo Plan was never implemented but was instead abrogated and substantially
redesigned. OPC further denies that MZS has ever been granted control or management over any
portion of the Greensward.
18.

OPC denies the allegations of paragraph 18. The document attached to the

Complaint as Exhibit A is not the 1989 Zoo Phase 1 Master Plan. This fact is readily apparent
from the document itself. On its face, Exhibit A to MZS’s Complaint recites a date of February
1986, which, according to MZS, is when the 1986 Proposed Zoo Plan was created. (Complaint,
¶ 16.) Further, Exhibit A to MZS’s Complaint is devoid of any mention of 1989 or “Phase I”
revisions. Accordingly, it is clear that, rather than attaching the zoo’s master plan as revised in
1989, MZS has attached a draft plan that was never implemented but was substantially revised
following discussions between MZS, Memphis, and other stakeholders in Overton Park. Based
on the foregoing, OPC moves that Exhibit A to MZS’s Complaint be stricken. 8
19.

OPC denies the allegations of paragraph 19. The document MZS refers to as the

“Master Plan” is actually the 1986 Proposed Zoo Plan and not the 1989 Zoo Phase 1 Master Plan
8

See, Overton Park Conservancy’s Motion to Strike and Supporting Memorandum, filed contemporaneously
herewith.

7

 as identified in the 1994 Zoo Management Contract. OPC further denies that MZS has ever been
granted control or management over any portion of the Greensward.
20.

OPC denies the allegations of paragraph 20. The document MZS refers to as the

“Master Plan” is actually the 1986 Proposed Zoo Plan and not the 1989 Zoo Phase 1 Master Plan
as identified in the Zoo Management Contract. Upon information and belief, OPC denies that
Memphis or the City Council ever adopted the 1986 Proposed Zoo Plan or alternatively avers
that same was intentionally abandoned and never activated.
21.

OPC denies the allegations of paragraph 21. The document MZS refers to as the

“Master Plan” is actually the 1986 Proposed Zoo Plan and not the 1989 Zoo Phase 1 Master Plan
as identified in the 1994 Zoo Management Contract. Presumably, the terms of the agreement
between Memphis and MZS speak for themselves. Unfortunately, because MZS neglected to
attach a copy of this agreement to its Complaint, OPC lacks sufficient information to admit or
deny the remaining allegations of paragraph 21.
22.

OPC lacks sufficient information to admit or deny the allegations of paragraph 22

but again avers that the document MZS refers to as the “Master Plan” is merely a proposed and
ultimately abandoned design that is not the “Master Plan” referenced in the Zoo Management
Agreement.
23.

OPC admits the allegations of paragraph 23.

24.

Upon information and belief, OPC admits the allegations of paragraph 24.

25.

The terms of the Zoo Management Agreement speak for themselves. To the

extent the allegations of paragraph 25 differ from said terms, OPC denies same.
26.

The terms of the Zoo Management Agreement speak for themselves. To the

extent the allegations of paragraph 25 differ from said terms, OPC denies same.

8

 27.

OPC denies the allegations of paragraph 21. The document MZS refers to as the

“Master Plan” is actually the 1986 Proposed Zoo Plan and not the 1989 Zoo Phase 1 Master Plan
as identified in the 1994 Zoo Management Contract.
28.

The terms of the Zoo Management Agreement speak for themselves. To the

extent the allegations of paragraph 28 differ from said terms, OPC denies same.
29.

OPC lacks sufficient information to admit or deny the allegations in paragraph 29.

Overton Park Conservancy
30.

OPC admits the allegations of paragraph 30.

31.

OPC admits the allegations of paragraph 31.

32.

OPC admits the allegations of paragraph 32.

33.

OPC admits the allegations of paragraph 33.

34.

OPC admits that Exhibit C to the Overton Park Management Agreement does not

contain a metes and bounds description. Instead, Memphis preferred to prepare a detailed
drawing, Exhibit C, which graphically describes the Overton Park Conservancy Management
Area. The red lines drawn by Memphis clearly indicate areas to be managed by OPC. The entire
Greensward is clearly and explicitly designated as being within the OPC Managed Area. In fact,
the words “OPC Managed Areas” are written within the Greensward itself on Exhibit C, which
was the preferred method selected by the City of Memphis Division of Parks Services to
illustrate its intent.
35.

OPC admits the allegations of paragraph 35.

36.

OPC admits the allegations of paragraph 36.

37.

OPC admits the allegations of paragraph 37.

38.

OPC admits the allegations of paragraph 38.

9

 39.

OPC admits the allegations of paragraph 39.

OPC’s Management Agreement with the City Does Not Convey to it Any Right to Operate
and Manage Any Area under Management and Control of MZS.
40.

OPC lacks sufficient information to admit or deny the allegations of paragraph 40.

41.

OPC denies the allegations of paragraph 41. Indeed, Exhibit C to the Overton

Park Management Agreement explicitly identifies the Greensward as being within the territory to
be managed by OPC. On the other hand, MZS has failed to identify any document to support its
contention that Memphis granted it control over any portion of the Greensward.
42.

OPC denies the allegations of paragraph 42. The Zoo Management Agreement

does not identify the Greensward as being within the territory to be managed by MZS.
43.

Paragraph 43 states a legal conclusion to which no response is necessary. To the

extent it must respond, OPC denies the allegations of paragraph 43. MZS’s position presupposes
that, in 2012, it had control over the Greensward. As discussed above, prior to 2012, the
Greensward was under the exclusive management and control of Memphis.
44.

Paragraph 44 states a legal conclusion to which no response is necessary. To the

extent must respond, OPC denies the allegations of paragraph 44. MZS’s position presupposes
that, in 2012, it had control over the Greensward. As discussed above, prior to 2012, the
Greensward was under the exclusive management and control of Memphis.
Parking on the Zoo Greensward
45.

OPC admits the allegations of paragraph 45.

46.

OPC denies the allegations of paragraph 46. Because the Greensward was never

under the control of MZS but was instead under the exclusive control and management of
Memphis or its authorized agents, only Memphis could permit zoo patrons to park on the
Greensward.

10

 47.

OPC denies the allegations of paragraph 47.

48.

OPC admits the allegations of paragraph 48.

Placement of Trees on Greensward
49.

OPC denies the allegations of paragraph 49. The trees destroyed by MZS were

planted with the approval and participation of the MZS.
50.

OPC denies the allegations of paragraph 50.

51.

OPC denies that trees were “unlawfully” planted; instead, the trees destroyed by

MZS were planted with the approval and participation of MZS. OPC admits the remaining
allegations of paragraph 51.
Defacement of Greensward
52.

OPC lacks sufficient information to admit or deny the allegations of paragraph 52.

In this paragraph, MZS admits that it does not know the identities of the alleged vandals, but in
its Complaint, on page 3, MZS alleges that the Greensward was defaced by “persons supporting
OPC.” Because MZS has admitted that it has no basis for this allegation, it is irrelevant to this
lawsuit and was included only to besmirch the reputations of OPC. Therefore, OPC moves to
strike this allegation on the basis that it contains scandalous, unsupported material, and on the
basis that, because MZS does not know who engaged in the alleged defacement, it is irrelevant to
this litigation.9
53.

OPC lacks sufficient information to admit or deny the allegations of paragraph 53.

In this paragraph, MZS admits that it does not know the identities of the alleged vandals, but in
its Complaint, on page 3, MZS alleges that the Greensward was defaced by “persons supporting
OPC.” Because MZS has admitted that it has no basis for this allegation, it is irrelevant to this
9

See, Overton Park Conservancy’s Motion to Strike and Supporting Memorandum, filed contemporaneously
herewith.

11

 lawsuit and was included only to besmirch the reputations of OPC and its supports. Therefore,
OPC moves to strike this allegation on the basis that it contains scandalous, unsupported
material, and on the basis that, because MZS does not know who engaged in the alleged
defacement, it is irrelevant to this litigation. 10
V.
54.

REQUEST FOR DECLARATORY JUDGMENT

OPC repeats, re-alleges, and incorporates herein each of the preceding paragraphs

as if fully set forth herein.
55.

OPC denies the allegations of paragraph 55.

56.

OPC denies the allegations of paragraph 56.

57.

OPC denies the allegations of paragraph 57.

All allegations not previously admitted or denied are hereby denied. OPC denies that the
Memphis Zoo is entitled to any relief from OPC under any theory.
AFFIRMATIVE DEFENSE
The relief sought by MZS is barred by the doctrines of estoppel and waiver based on the
conduct of MZS after 1986. MZS cannot rely on the 1986 Proposed Zoo Plan because MZS
subsequently revised the 1986 Proposed Zoo Plan and because neither MZS nor anyone else has
ever treated the 1986 Proposed Zoo Plan as an operative master plan. In addition, MZS has not
maintained, or paid for the maintenance of, the Greensward at any time since it alleged assumed
the “exclusive right to operate and manage” the Greensward. Finally, MZS has requested the
permission of others to use the Greensward.
COUNTERCLAIM
Now, having fully responded to the Complaint, OPC states a claim against the MZS as
10

See, Overton Park Conservancy’s Motion to Strike and Supporting Memorandum, filed contemporaneously
herewith.

12

 follows:
Parties, Jurisdiction, and Venue
1.

Defendant/Counter-Plaintiff OPC is a Tennessee non-profit corporation with its

principal place of business located at 1814 Poplar Avenue, Apt. 202, Memphis, Tennessee
38104.
2.

Plaintiff/Counter-Defendant MZS is a Tennessee non-profit with its principal

place of business located at 2000 Prentiss Place, Memphis, Tennessee 38112.
3.

The jurisdiction of this Court is invoked pursuant to T.C.A. § 29-14-102 and

T.C.A. § 16-11-101, et seq. in the exercise of its inherent general jurisdiction.
4.

Venue in this Court is appropriate because the claims described herein concern a

contract entered into within Shelby County, Tennessee, and the events described herein occurred
within Shelby County, Tennessee.
Facts
5.

In 1986, Torre created a proposed master plan for the Memphis Zoo and

Aquarium (previously identified as the “1986 Proposed Zoo Plan” and attached to the Complaint
as Exhibit A). This so-called “master plan” purported to have MZS assume within its boundaries
Rainbow Lake and the Rainbow Lake Playground. It also shows two paved roads running
through Veterans Plaza and the Greensward itself. This “master plan” was never permitted to
proceed and was instead abandoned by MZS and substantially revised.
6.

On or about December 23, 1986, Torre, on behalf the zoo, met with members of

the Memphis Park Commission and others to discuss the layout of Overton Park and the
Memphis Zoo that would be established in the 1988 Overton Park Master Plan.
7.

This December 23, 1986 meeting included discussion of the expansion and

13

 modernization of the zoo, plans for parking, and the preservation of the Greensward and other
portions of Overton Park for use by the public.
8.

On or about December 1, 1987, Torre again met with representatives of Memphis

to continue these discussions, as well as to discuss the disposition of Rainbow Lake and the
further expansion of the zoo into the virgin, old-growth forest.
9.

In April of 1988, Memphis approved the 1988 Overton Park Master Plan

(attached as Exhibit 1).
10.

MZS participated in the discussions and negotiations that lead to the creation of

the 1988 Overton Park Master Plan.
11.

Pursuant to the 1988 Overton Park Master Plan, the Greensward is not included in

the area designated as constituting the zoo.
12.

During the time when the 1988 Overton Park Master Plan was developed, as well

as after it was approved, MZS met with Memphis and others to harmonize the 1986 Proposed
Zoo Plan with the 1988 Overton Park Master Plan.
13.

As part of these discussions, MZS agreed, among other things, to remove

Rainbow Lake, the playground, the area containing Veterans Plaza, and the Greensward from
area designated for future development by MZS.
14.

As a result of the above-referenced meetings, as well as the 1988 adoption by

Memphis of the 1988 Overton Park Master Plan, Torre revised and amended the 1986 Proposed
Zoo Plan, creating the June “1989 Zoo Phase 1 Master Plan” (attached as Exhibit 2).
15.

In 2001, Torre again revised the master plan for the zoo, creating a new master

plan, which is current, operative master plan in use by the zoo (attached as Exhibit 3).

14

 16.

In 2002, the Division of Park Services for the City of Memphis created an

“Illustrative Map of Overton Park,” which is attached hereto as Exhibit “6.” This map, prepared
by Memphis, confirmed the respective areas and the entities responsible for the areas. This map
clearly shows that the entirety of the Greensward is outside the area controlled by MZS.
17.

The layout of the 1989 Zoo Phase 1 Master Plan, the 1988 Overton Park Master

Plan, the zoo’s current master plan, and the 2002 map created by the Division of Park Services
largely match the present, actual configuration of Overton Park, while the 1986 Proposed Zoo
Plan does not.
18.

The 1989 Zoo Phase 1 Master Plan, the 1988 Overton Park Master Plan, the zoo’s

current master plan, and the 2002 map created by the Division of Park Services all show the
Greensward as an open green space, and none of them suggest, in any way, that the Greensward
is subject to the control and management of MZS or is available for overflow parking.
19.

Exhibit A to MZS’s Complaint is not the “Master Plan for the Zoo” that is

referenced in paragraph 11 of Exhibit A to the 1994 Zoo Management Agreement. 11
20.

Instead, the “Master Plan for the Zoo” that is referenced in paragraph 11 of

Exhibit A to the 1994 Zoo Management Agreement is the 1989 Zoo Phase 1 Master Plan
(Exhibit 2).
21.

The 1989 Zoo Phase 1 Master Plan excludes the Greensward from the “Real

Property” subject to MZS’s control and management.
22.

Following the adoption of the Overton Park Master Plan, MZS requested

permission from Memphis to permit its patrons to park on the Greensward when MZS’s parking
lots reached capacity. Indeed, as late as 2014, MZS sought Memphis’s permission to park on the

11

The 1994 Zoo Management Agreement is attached to MZS’s Complaint as Exhibit B.

15

 Greensward.
23.

MZS charges its patrons to park on the Greensward.

24.

MZS does not maintain the grass on the Greensward, even the area that it has used

for overflow parking.
25.

On January 13, 2012, Memphis and OPC entered into the Overton Park

Management Agreement, which is attached to MZS’s Complaint as Exhibit C.
26.

The Overton Park Management Agreement defines the portion of Overton Park to

be managed by OPC (“Managed Area”) by reference to Exhibit C to the Overton Park
Management Agreement.
27.

In the Overton Park Management Agreement, Memphis represented and

warranted that this Exhibit is a “complete and accurate description[] of the matters referred to
therein.” (Overton Park Management Agreement, p. 14.)
28.

With regard to the Managed Area, the Overton Park Management Agreement

provides that “OPC shall have the full and exclusive authority and responsibility to manage,
operate, lease, maintain, rent, preserve, protect, enhance, and develop the Management Area, to
promote the Park, and to carry out all of its other duties as set forth in more detail herein.”
(Overton Park Management Agreement, p. 1.)
29.

In addition, the Overton Park Management Agreement provides that “OPC will

have the sole authority to determine what activities, events, programs, concessions, shall take
place and which shall be discontinued in the Managed Area during the term of this Agreement,
and to establish rules and regulations governing same.” (Overton Park Management Agreement,
p. 4.)
30.

Pursuant to the Overton Park Management Agreement, OPC has assumed the

16

 responsibility to have the Greensward mowed, maintained, and repaired, including the area MZS
has used for overflow parking.
31.

MZS has not contributed any funds to OPS for mowing the grass or repairing the

Greensward.
Cause of Action I – Declaratory Judgment
32.

OPC repeats, re-alleges, and incorporates herein by reference the preceding

paragraphs as though set forth fully herein.
33.

OPC has a legal and contractual interest in the Greensward.

34.

OPC’s legal and contractual interest in the Greensward is being impaired by

MZS’s claim that it exercises exclusive management and control over the Greensward and by
MZS’s instructing its patrons to park on the Greensward.
35.

Pursuant to T.C.A. § 29-14-101, et seq., OPC seeks a judgment declaring the

Overton Park Management Agreement assigned to OPC the exclusive authority to manage,
operate, and control the Greensward.
Cause of Action II – Destruction of Property
36.

OPC planted over one hundred (100) trees on the Greensward using funds

donated for this purpose.
37.

OPC planted the trees on the Greensward with the full cooperation and

participation of MZS.
38.

In January 2016, MZS, without any authority, came upon the Greensward and

deliberately destroyed twenty-seven (27) of these trees.
39.

The destruction of these trees by MZS caused damage to OPC, including that

OPC must expend funds to replace the destroyed trees and to repair the damage to the

17

 Greensward caused by their destruction.
40.

MZS is liable to OPC for this destruction of property in an amount to be

determined at trial.
WHEREFORE, PREMISES CONSIDERED, OPC prays as follows:
A.

That this Court enter an Order declaring the Overton Park Management

Agreement assigned to OPC the exclusive authority to manage, operate, and control the
Greensward;
B.

That this Court enter an Order confirming that the real property subject to the

control of OPC pursuant to the Overton Park Management Agreement includes the entire
Greensward;
C.

That OPC be awarded its costs and attorney’s fees pursuant to Tenn. Code

Ann. § 29-14-111;
D.

That OPC be awarded compensatory damages, in an amount to be determined by

the jury, for MZS’s destruction of property under the control and management of OPC; and
E.

That OPC be granted such other and further relief to which it may be entitled.
Respectfully submitted,
GLANKLER BROWN, PLLC

By:
John I. Houseal, Jr. (#8449)
Michael D. Tauer (#25092)
Andre B. Mathis (#26458)
6000 Poplar Avenue, Suite 400
Memphis, Tennessee 38119
(901) 525-1322 Telephone
(901) 525-2389 Facsimile
Attorneys for Overton Park Conservancy

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 CERTIFICATE OF SERVICE
The undersigned does hereby certify that a copy of the foregoing has been served upon
opposing counsel via U.S. Mail, postage prepaid this 19th day of February, 2016.
Robert L. J. Spence, Jr.
Bryan M. Meredith
THE SPENCE LAW FIRM
One Commerce Square, Suite 2200
Memphis, Tennessee 38103
Allan J. Wade
Brandy Parrish
THE LAW OFFICES OF ALLAN J. WADE
One Commerce Square, Suite 2275
Memphis, Tennessee 38103
Jennifer A. Sink
City of Memphis
125 N. Main Street, Room 336
Memphis, Tennessee 38103
___________________________________

19

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A Celebration of Life on Our Globe

NORTH PARKWAY

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ChildrenAmphitheater

EXHIBIT

  

?ligimate World

Carnivora Restaurant

 

@349ng Fan THE
arms:

Ci ofi'i?? . . 
Memp_his Tw1ce the Acreage! Major New Attractlons! 

In Our Timc
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CAMPAIGN FOR THE

MEMPHIS

A

World Class
Zoo

For
Memphis

  

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OOZ



El?. 30:! 



 

 

 

 

 

A New Zoo A Bold Opportunity

The Campaign for the Memphis Zoo will help propel Memphis; to major L'in
unto; by lhl.? list Century

Lest veer 120 million people in the nation nttentled loos. Atlanta. 31. Louis.

reemincnt too
'or Memphis to
have one of the top zoos in the country. The Zoo [in ides the City zi means
to reach out and attract new visitors and corporate tilt-ms. Qualin growth
through quality amenities de?nes the strong a es of the next decade.
Corporations cite amenities at. a key factor in relocation decisions.

 

 

The Memphis Zoo. a wonderful place for families, has consistently lit-en the
premier City attraction. Few facilities con boast of its siicc in entertaining
and educating vinuully every "denioitnipliic." The Zoo knows no limitations
of income. education, gender. race. or age.

We s'l not just much this exciting drinnu. but participate The Plan

for the Zoo I 34.5 the curtain I . wane the features actors in creating a world class mo for a world dim city.

 

.

 

   

A mo can no longer be
just (I plane it) keep
animals. It musr be a
complete environment
for enjoyment,

learning. and pzvreclitm.

Community Recreation

The new Zoo will be the place to
celebrate the of our local
community by "ij having a good
time."

- Seeing New Major Exhibits

- Riding the Zoo'fmm

- Eating at the Curriivoru Restaurant
Enjoy ing Special After-hour Events
- Experiencing Lush Gui-den Settings

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Preservation

In at world of growing populations

and shrinking resources. many

animals are threatened through the
extinction of their environment. Our

forest. reminiscent of this- area
years ago. coupled wi

phically accurate aniniul exhibits.

showcases our commitment to
100'! mission.

-

   

Education

Only those uho truly understand the
diversity oftlit: world will thrive. Only
those who recognize the tithan of our
climates and environments will be able
300 to protect them. Experiential beaming

zuogcogra- 

- Amphitheater and Discovery Center
the - Summer Zoo Camps
Study Rooms and Interactive Displays

                                      

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An Innovative Partnership

A team approach by the City. Memphis Zoo. Inn. and
the Memphis Zoological Society his made possible an
exciting public/private partnership. The best of enlight?
ened government and entrepreneurial basin/:55 is actively
involved in creating our new Zoo. The partnership
recognizes the iniporunce of us the existing 200. To
leverage the investments new ex hits will i built
alongside the best of the old.

 

Properly designed and managed loos" offer the best
opportunity of any public ameni for economic self?
suf?ciency. The City ol'Memp have a world
class zoo paying its own way within ten years.

 

"We are hawking with a mum-pliant! i?thA?lfl? Plan. [It
the/int Phase we intend to build and renovate portions
"J'th Zoo requiring a goal of $21 ?40,000. It will ml?:
0 minimum commitment from the private
.szt?mr launrit this rfjurr mqu the (rm/inn afar
world plan- 2110 in Mmiplu?s. With ?1.450.000 already
camimdfm the Capital Impmi'rmem Pragam

It! 

   

 

meet Ilia remain: tg requirenmu . 

The Honorable Richard C. Huckett
Mayor. City of Memphis
.

?3 
.



liltingCosts to Produce the New Zoo

 

(.?umiti Con

- MZI at Devein
~Addiliixial Putting 

Art 1

'Cdl Cowl"!
- Emu I

- Relocation of 'I'rnin IL Children's Ridei

   

Ar
Children?s Village

- Center

- litter-t, on (Participatory 

- Entry Building (Admlnistntiou)
Act 

- Prime 

- Form l1

- Oncntat'ion Cum
Act IV

- Restaumni

-Enlry Building (71miin

- Inimcuves thicipaiury Display)
Act 

- Prim-ii: Exhibit ll

- lutemztm-s Diwluys]

Total PM I

 

 

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EXHIBIT

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City of Memphis! Division ufl'ntk Services

01d Forest



Overton Park

Conservancy

Management
Area

 

Red lines indicate areas
to be managed by OPC
except for thosa areas shown
as dashed yellow lines

 

 as 59??

Page Eight Park Board Minutes - December 14, 1989 123

2) POLICY STATEMENT - MEMPHIS ZOO PROJECT

In fermulating the Master Plan for the Zoo, certain
assurances were made to the Evergreen Historic District
Association with regard to present and future planning.
Guidelines were established to give the neighborhood a
comfort zone and to ensure plans would not change after the
fact. Each of the Board members has had the opportunity to
review this Policy Statement and Bob Brame recommended its

approval.

MOTION FOR APPROVAL WAS MADE BY COMMISSIONER BARNES,
seconded by Commissioner Baird. Vote was unanimous. A copy
of the Policy Statement is attached hereto and made a part
of these Minutes. (Copy Attached)

There being no further business to come before the
Board, the meeting was adjourned.

 
 

 

Wolbrecht, Chairman

I

 

Lia?stockdale, Secretary

EXHIBIT

6/



 

 

 

 

 

RICHARD C. HACKETT - Mayor
E. BROUGHTON - Chief of Staff

SE

City of 
Memph1s

TENNESSEE

MEMPHIS PARK COMMISSION
BOB BRAME - Directot

POLICY STATEMENT IN.REGARD T0 PARKING
FOR THE -
MEMPHIS zoo IN OVERTON PARK

The City of Memphis has proposed that the current
parking lot for the Memphis Zoological Gardens located in
Overton Park be renovated and expanded and, subject to
certain modifications which have been agreed upon, the
Evergreen Historic District Association (the "Association")
agrees with the plan as revised (the "Modified Parking
Plan). It is understood that, in the absence of the policy
views contained in this Statement, the Association would not
concur in the expansion and renovation of the Zoo parking
lot.

In connection with the implementation of the Modified
Parking Plan, it is recognized that the vacant land between
McLean Avenue and the west border of Overton Park on
Galloway Avenue (the "Gallowavaarking Area") will be used
on an as-needed basis for overflow parking. Further, this
space will not at present be paved and such paving will
occur, if at all, only when actual attendance for the Zoo
clearly mandates that such space be used as a paved lot.
The Galloway Parking Area will at all times when used by the
City of Memphis as an overflow lot or otherwise be utilized
only after implementation of the things and matters
previously agreed upon by the Association and the City for
the protection of homeowners whose property adjoins the
Galloway Parking Area.

Further, it is the policy of the City of Memphis that,
with the exception of the areas encompassed in the Modified
Parking Plan and the Galloway Parking Area, no additional
.area in Qwerton Park will be utilized in the future for
paved parking in connection. with. the Memphis Zoological
Gardens. In the event that paved parking in addition to the
Modified Parking Plan and the Galloway Parking Area is
necessary ix: the future, such additional parking will be
located off-site.

This Statement has been approved by the Mayor and the
City Council. -

1

9?00 lv-n' Avon". . u'ml?hii .  

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Pat)

 

 

 

 

34?;

fem

Policy Statement
Page two

In addition to the Statement, the Association
understands that the following things and matters have been
agreed upon between the City and the Association with
reference to the Modified Parking Plan: -

The Modified Parking Plan will be utilized in the
construction of the Zoo lot, and such plans will
include, in addition to modifications previously
shown to the Association, features that: paved
parking west of the current Doughboy Road will not
extend further south than a' point ?which is
approximately 240 feet north of Overton Park
Avenue; (ii) parking on the east side of Doughboy
Road south of the 240 foot line will consist
solely of existing paved roads which will extend
no .farther south than the traffic diamond
currently in place just north of the Doughboy
Memorial; and a: buffer zone of increased
*width will be used on the west side of the paved
parking as shown on the latest plans shown the
Association.

The Park Commission will furnish landscaping on
the west border of the Park and the Association
will be involved in the planning process to plan
and implement this landscaping.

The Zoo lot will be surrounded by a short wooden
bumper or other aesthetically suitable device
which prevents cars from moving from the Zoo lot
to the green space area immediately surrounding
the Zoo lot.

Gates will be erected at three points: the
intersection of West Park Road and the road in
front of the Brooks Museum; (ii) the intersection
of the West Park Road and the Zoo lot; and 
the intersection of Galloway' Avenue and McLean
Boulevard. Upon completion of the Zoo lot
construction, the gates located at and (ii)
will be locked at the closing time of the
Zoo each day of the year. Further, the gate at
point will be locked after the Zoo security
detail has cleared the Zoo parking lot each
evening. In any event, the gate at point number
will not remain open on any day after
approximately 7:00 except in connection with
special events at the Zoo.



 

5% 
r- n3

Policy Statement
Page three

 

The Zoo will position guards at. the gates at
points and referred to in subparagraph
above on Saturdays and Sundays and the 200
will utilize these guards to charge a refundable
sum for parking in the Zoo lot. 

The City will not utilize the green Space at the
end of Overton Park Avenue to the south of the Zoo
lot for any parking, whether temporary? or
otherwise, and will upon completion of
construction of the Zoo lot remove any gravel,
curb cuts or other things that enable patrons to
use this area for parking.

(9) The Galloway Parking Area will continue to be used
for, temporary overflow parking on an as-needed
basis. However, the City will, in connection with
the use of the Galloway property! offer in
accordance with Senator Cohen's Corridor Bill
existing landowners on the north side of Autumn
Avenue the right to buy- mutilated portions of
their lots at fair market value; (ii) establish
and landscape in consultation with the Association
an adequate buffer zone of at least twenty feet in
width along the rear preperty lines of homeowners
.on the north side of Autumn Avenue; 
establish a landscaped buffer zone between McLean
Avenue and the Galloway Parking' Area so as to
obstruct parked cars on the Galloway Parking Area
from the view of motorists on McLean Avenue.

 

 

 

 

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