|Legal Opinion: |
Text of Document: MEMORANDUM
FROM: Sid Hemsley, Senior Law Consultant
DATE: June 6, 2001
RE: TDOT Contract
It seems to me that the proposed TDOT contract with your city is both typical of TDOT contracts, and generally reasonable.
I have the following comments on your comments:
1. Regarding Item (2), generally the city would have access to the TDOT plans to determine any existing street modifications, before it enters into the contract. I am betting that the project is more likely to require street closings on the part of the city than street modifications. Street closings are generally beneficial to the city because the property upon which the street sits automatically reverts to its former owners, and the city no longer has any responsibility for it.
2. Regarding Item (4), under the common law, utilities using city streets are required to move or relocate such utilities from those streets at their own expense. With respect to state highways, that rule is codified in Tennessee Code Annotated, §§ 54-5-801 et seq. However, Tennessee Code Annotated, § 54-5-804, contains exceptions under which the state pays for such costs on the interstate system and related projects. I assume the project does not involve an interstate highway.
[If the city itself were building or expanding a street, it could also require any utility located in the existing street right-of-way to relocate the utility at its expense].
The Utility Management Review Board has a state-funded loan program to help cities relocate utilities in the path of a state highway. [Tennessee Code Annotated, §§ 7-82-701 and 67-3-617(j)(1).
3. Regarding Item (5), it is true that it sounds like a frontage road will be built, for which the city will be responsible to maintain. Some fairly good idea about the kind of frontage road involved, and its maintenance costs to the city can probably be gotten from the plans and from consultation with TDOT engineers.
4. Regarding Item (6), many cities do not understand that state highways are merely city streets over which state traffic is routed. For that reason if the state abandons old SR-15, there is no issue of the city accepting the highway for maintenance, it already being a city street. Generally, cities have almost unlimited discretion to close streets. However, that is not true where such closure would be an abuse of discretion. Unfortunately, I do not know what fronts on the street, so I cannot determine whether the closing of that street would be an abuse of discretion. But my above point is this: if the state decides to go ahead with this project, and it ultimately abandons SR-15, that highway is already a city street for which the city is already responsible for policing, maintenance, etc., until the city closes it.
5. Regarding Item (10), [actually also items (8) and (9)] this provision does obligate the city to a potential cost of maintenance for signalization, etc. However, all or some of those costs could be covered by State Street Aid funds.
6. Regarding Item (11), it appears to me that all this provision does is require the city to waive set-back requirements if the acquisition and use of the right-of-way violate such requirements. In every case I can think of Tennessee’s Pre-Existing Nonconforming Use Law, or simple equity, would waive such set-backs anyway. It also appears to me that Item (1) obligates the State to pay any inverse condemnation claims or other damages arising from the project, provided the city gives the Tennessee Attorney General 10 days notice of a suit against the city. However, that could certainly be stated more plainly in Item (1).
As I understand the fact, this project bypasses the downtown. (I doubt that it totally bypasses the city; otherwise, the resulting highways would not become city streets). If it bypasses the downtown or any other part of the city, the project might not rebound to the benefit of the city. However, although I am not an expert in the effects of highway construction, many, if not most, bypasses ultimately benefit the city through the growth that develops on abutting or nearby property.