|Legal Opinion: |
Text of Document: October 3, 2000
You have two questions:
Question 1. Can the city clean up pieces of private property in the city with the permission of the property owner? The facts indicate that the owners of property in question are financially unable to clean up the property, and that the city has previously enacted what is commonly known as the “Slum Clearance Ordinance.”
The answer is probably yes.
The city’s slum clearance ordinance is reflected in your code, title 13, chapter 4. The ordinance was enacted under the authority of, and tracks, Tennessee Code Annotated, title 13, chapter 21. The constitutionality of that statute was upheld both in Thomas v. Chamberlain , 142 F. Supp. 671 (E.D. 1955), aff’d 236 F.2d 417 (6th Cir. 1956), and in Winters v. Sawyer, 463 S.W.2d 705 (1971), which makes it an ideal vehicle for the for the clean-up of dilapidated property. However, the latter case did advise the cautious use of the ordinance.
I see nothing in either Tennessee Code Annotated, title 13, chapter 21, or in your code, title 13, chapter 4, that suggests that the relationship of the property owner and the city must be an adversarial one. The ordinance prescribes a notice and hearing process that must be followed, but there is no apparent reason the property owner could not admit the building inspector’s finding, or otherwise agree to his findings and to the application of the ordinance.
The city’s ownership of the property in question is not a prerequisite to its clean-up or demolition under the Slum Clearance Ordinance. In fact, neither Tennessee Code Annotated, title 13, chapter 21 nor the city code, title 13, chapter 4, contemplate the that the city own the property. But both of them do make mandatory the lien, and the collection of the costs of the clean-up or the demolition of the property in the same way property taxes are collected. [Tennessee Code Annotated, section 13-21-103(6); city code, section 13-408). If the city charges the full (but reasonable) costs of the clean-up or demolition of the structure or structures, the mandatory lien minimizes the prospect that the clean-up or demolition will represent a gift by the city to the property owner. For that reason, the mandatory lien also theoretically minimizes the prospect that other property owners will request the city to clean-up or demolish their property.
A few years ago I drafted a sample lien to use under the Slum Clearance Ordinance. So far, I have not received any indication that the liens are defective in any way. I have enclosed a copy of it for your review.
Question 2. Does MTAS have sample garbage and refuse ordinances that permit the city to classify waste, administratively treat classes of waste differently, and charge different rates for the collection and disposal of the different classes of waste?
The answer is yes. I have enclosed some samples for your review. You may have to pick and choose among various provisions in the samples, but most of them specifically make provisions for the separate collection of “white” goods, “bulk wastes” or similar words and phrases that mean ferrous metal wastes. Let me know if you want more help on this question.
Sidney D. Hemsley
Senior Law Consultant