|Legal Opinion: |
Text of Document: May 2, 2006
Dear Building Inspector:
You have the following question communicated to me through your MTAS Management Consultant:
Can the city require property owners to build or repair sidewalks abutting their property?
The answer is probably yes, but only if the city has been delegated that authority by the General Assembly in its charter or by general law. I find no authority in the City's charter or in the general law authorizing the city to require abutting property owners to construct or repair such sidewalks, and there is no general law granting cities such authority. (Incidentally, among those cities whose charters grant them such authority, I doubt that it has often, if ever, been exercised in modern times).
That answer is supported by O ' Haver v. Montgomery , 120 Tenn. 448 (1908), and City of South Fulton v. Edward , 148 Tenn. 130 (1923). In the latter case, a property owner challenged an ordinance of the City of South Fulton that required all landowners adjacent to certain streets to construct sidewalks according to standards specified in the ordinance. The ordinance also provided that if a landowner failed or refused to begin construction of the sidewalk within 30 days, the city would construct it and charge the cost of the same to the landowner, "and the same to become a lien upon the lot belonging to said party adjoining said street."
The ordinance was based upon a provision of the South Fulton City Charter that authorized the city to:
Pass all necessary ordinances requiring the owners of the lot to make brick, stone, plank, or other sidewalks in front of their property along any street, and if the owner refused, to provide a remedy and create a lien on said property for same.
Citing a line of prior Tennessee cases and certain provisions of DILLON ON MUNICIPAL CORPORATIONS and MC QUILLIN ON MUNICIPAL CORPORATIONS, the Court upheld that delegation of power and declared it to be sufficient to order the construction of the sidewalks and imposition of the lien.
South Fulton v. Edwards still accurately reflects the law on your question.
I have read the City Charter, and although sidewalks are mentioned in several contexts, I find no authority therein for the city to require abutting property owners to construct or repair sidewalks. Section 18(16) of the City Charter does provide as follows:
[The city council shall have power by ordinance to] construct, improve, reconstruct and reimprove by opening, extending, widening, grading, curbing, guttering, paving, graveling, macademizing, draining or otherwise improving any streets, highways, avenues, alleys or other public places within and without the corporate limits, and assess the cost of these improvements on the property abutting on or adjacent to these streets, highways or alleys under, and as provided by, state law. [Emphasis is mine]
Although that provision does not expressly mention sidewalks, it mentions "public places," which probably includes streets. In addition, it had been held in Tennessee that the municipalities have the discretion to determine what forms of public travel are permissible in street rights-of-way, including sidewalks. For that reason, a sidewalk is probably generally a part of the street easement. [See Blackburn v. Dillon, 225 S.W.2d 46 (Tenn. 1946).]
Two state statutes provide for special assessments for street improvements: Tennessee Code Annotated, ' 7-32-102 et seq. and Tennessee Code Annotated , ' 7- 33-301 et seq. They differ in their bases for assessments and in their application. Should the city be interested in information of special assessments, I will be glad to provide it.
However, there is another aspect to this question that needs to be mentioned: Even if a city in Tennessee has been delegated the proper authority by the General Assembly to require abutting property owners to construct and repair sidewalks, the city cannot shift liability from
the city to abutting property owners liability for injuries or damages that arise from defects in sidewalks. [See City of Winchester v. Finchum , 301 S.W.2d 341 (Tenn. 1957, and the Tennessee Tort Liability Act, specifically ' 29-20-203.]
Sidney D. Hemsley
Senior Law Consultant