|Legal Opinion: |
Text of Document: May 1, 1997
You have the following question: With respect to the one-way street in front of the school (which is the issue of my previous letter relative to the issuance of waivers for the one-way), can the city make the street a “not through street,” so that the business owner and the two or three other property owners whose access to their property is inconvenienced when school starts and when it ends each day can drive against the one way traffic to reach their property?
I have been unable to find any law on that explicit question. However, making the street a not through street during limited morning and afternoon hours to accommodate the picking-up and dropping-off of children, does not address my original objections to granting one-way waivers. The primary function of making a street a one-way street under the circumstances at issue there is to protect the safety of school children and parents during those periods. The city’s designation of the street as a not through street is an attempt to accomplish through the back door what it probably cannot accomplish through the front door. In fact, it produces not one business owner, but one business owner and two or three additional property owners, bucking the one way traffic flow. It is a bit of an exaggeration to compare such a regulation to a regulation that permits half the people to drive on the right hand side of the road and the other half to drive on the left hand side, but the effect is similar. I cannot figure out why the city would want some traffic bucking the one way flow for the convenience of two or three property owners.
There are good reasons for having not thorough streets, but it does not seem to me that a good reason is reflected in this one.
Sidney D. Hemsley
Senior Law Consultant
March 25, 1997
You have the following question: Can the city issue a waiver authorizing the owner of a certain business that operates heavy equipment and trucks upon the city streets to travel down a one way street in a school zone in the wrong direction to permit him to reach his place of business? In my opinion, the answer is no.
Under the facts related to me, a two lane road running in front of a school is a one way street for a period of time when school lets out in the afternoon. Traffic comes to a standstill in front of the school as parents and other persons pick up their children. The equipment and trucks of the business owner in question also come to a standstill. However, his equipment and trucks could reach his business instead of coming to a standstill if they were permitted to travel in the wrong direction for a short distance on the one way street.
There are at least three problems with granting the business owner a waiver from the application of the ordinance:
First, it is the law that ordinances must be uniform and equal, and general and impartial in their application. [Spoone v. Mayor & Aldermen, 206 S.W.2d 422 (Tenn. 1947); Blake Construction Co. v. Boyle, 203 S.W. 945 (Tenn. 1918); Nashville v. Hager, 5 Tenn. Civ. App. (Higgins) 192 (1914); McKelley v. Murfreesboro, 26 S.W.2d 99 (Tenn. 1931).] In addition, it has been held that where an ordinance was designed to prevent explosions and risk of fire, the ordinance could not exempt a business that was in existence when the ordinance was passed. [Consumer’s Gasoline Stations v. City of Pulaski, 292 S.W.2d 735 (Tenn. 1956).] Can there be any question but that making a street one way in a school zone is a safety regulation?
Granting a waiver from an ordinance making a street one way obviously results in an ordinance that is not equal, general and impartial in its application, and results in the exemption of an existing business owner from a safety regulation. Furthermore, the ordinance in question is a penal ordinance; that is, persons who violate the ordinance can be brought before a municipal court for its violation. I cannot imagine the ordinance surviving a challenge of selective enforcement. Of course, from a practical standpoint, all penal ordinances are selectively enforced to some extent; however, but the selective enforcement proposed by a waiver from the application of an ordinance is official: X can be convicted of his violation of the ordinance, but Y cannot be convicted because he has a waiver from the application of the ordinance.
Along the same lines, that kind of waiver on its face gives people against whom the ordinance is enforced an argument that the ordinance violates Equal Protection of the Laws under the Fifth and Fourteenth Amendments to the U.S. Constitution.
Second, a waiver creates a fatal discrepancy between the ordinance and the function of the ordinance. In H & L. Messengers, Inc. v. City of Brentwood, 577 S.W.2d 444 (Tenn. 1978), the City of Brentwood passed an ordinance to prohibit littering. However, the ordinance prohibited the distribution of commercial handbills, but exempted the distribution of political and religious material. The Court held the ordinance invalid on a number of grounds, including the failure of the ordinance to accomplish its purpose:
With respect to each of these sections containing exemptions in favor of ideological speech, we point out that it is indisputably true that religious tracts or political leaflets cast upon a citizens’ property constitutes litter to precisely the same extent as circulars advertising groceries. The exemption not only destroys the indispensable content neutrality of the ordinance, but leaves it standing upon a precarious position from a standpoint of its purposes. [Emphasis is mine.]
The obvious function of the ordinance in question would be to promote safety in the school zones, but waiving that ordinance with respect to a nearby business owner would defeat the very purpose the ordinance was designed to promote. The owner of a nearby business going the wrong way on a one way street poses exactly the same danger as any other person going the wrong way on a one way street.
Third, the ordinance may run into trouble under the Tennessee Tort Liability Act in two respects:
1. That Act makes municipalities liable for, among other things, “any injury caused by a defective, unsafe, or dangerous condition of any street, alley, sidewalk or highway owned and controlled by such governmental entity.” [Tennessee Code Annotated, section 29-20-203.] As far as I can determine, that statute has been held to apply only to defects, or unsafe or dangerous conditions with respect to the street itself, including traffic signals. However, I am convinced that if an injury to a person arose from a waiver a city granted to permit a person to go the wrong way on a one way street, the courts, if they could find no other way to hold the city liable for the injury, would have little trouble broadening the definition of defective, unsafe or dangerous condition to include waivers from ordinances that created such conditions.
2. The Act exempts municipalities for liability for injuries caused by the negligent acts or omission of any employee, which “arises from the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused.” The term “employee” within the meaning of the Tennessee Tort Liability Act includes both elected and appointed officials. [Tennessee Code Annotated, section 29-20-102.] At first glance a decision by a city council to exempt a person from the application of an ordinance would appear to be a discretionary function for which the municipality is immune. However, the first glance may not survive the recent case of Bowers v. City of Chattanooga, 826 S.W.2d 427 (Tenn. 1992). There the Tennessee Supreme Court adopted a planning-operational test for determining what functions are discretionary: decisions, that rise to the level of planning or policy making are discretionary, while operational decisions are not discretionary functions. The Court drew no hard, fast line between planning and operational functions. In fact, it said that in making such decision it would examine the decision-making process and the propriety of judicial review of the resulting decision. Under that kind of broad analysis, the courts would have to take only a short step to reason that while the passing of an ordinance making a street one way in a school zone for a short period of each school day is a planning decision, the granting of waivers to individuals exempting them from the enforcement of the ordinance is an operational decision.
Under the Act, the city’s governing body has almost total immunity from its decisions, whether such decisions are planning or operational decisions. [Tennessee Code Annotated, section 29-20-201.] However the city does not enjoy the same immunity with respect to operational decisions; for such decisions the city is liable.
For either or both of the first two reasons, granting the business owner a waiver from the enforcement of the ordinance in question probably would not survive a challenge. In addition, if there is an accident which can be attributed to the business owner’s trucks or other equipment going the wrong way on the one way street, the city might find itself liable for the accident under either of the components under the third reason.
Sidney D. Hemsley
Senior Law Consultant