|Legal Opinion: |
Text of Document: Anne Gilbert has passed along to me your question concerning whether or not you could have a gated community with public streets that would be closed in the evening. I have not been able to find any authority that would allow you to do that.
I could find no pertinent statute or any case law from Tennessee on the subject of gated communities. I know there is at least one existing gated community in Brentwood, Tennessee. Brentwood has a category of zone called "Open Space Residential Development " (OSRD), for use by a gated community. I was told that all streets in the Brentwood gated community are private.
MTAS, through Sid Hemsley, has researched the issue of whether or not public streets may be closed off temporarily. In his opinion dated March 13, 1996, Mr. Hemsley had to rely on cases from other states, since Tennessee courts apparently have not addressed that issue. One line of cases dealt with whether or not a city could temporarily close a street to hold a street carnival or fair. The cases usually hold that such closure is not allowed for various reasons:
a. No authority to choose the street either in the city's charter or in the general law;
b. Closing of a street violated a statute or the city's own ordinances, requiring streets to be kept open and free from nuisance at all times;
c. Closing of a street is a nuisance as a matter of law or of fact; or
d. Closing of a street was for a private purpose.
In all these cases the courts were dealing with public streets, that is, already dedicated to the public use.
I ' m enclosing a copy of Mr. Hemsley's letter for your review.
Closing of an already dedicated public street, even temporarily, could be construed to be a taking for which the city could incur liability, particularly from any adjoining property owners who cannot get to their own property, or from nonresidents trying to navigate across the town.
Since there is virtually no case law in Tennessee on gated communities, I widened my search to include other parts of the country. There is a case from California, Citizens Against Gated Enclaves v. Whitley Heights Civic Assn. 28 Cal. Rptr. 2d 451, in which the court discussed policy reasons why public streets cannot be closed. The cases arose from the historic section in Hollywood Hills with many fine old residences designed by well-known architects. Crime had increasingly become a problem, and the local neighborhood association has petitioned the city to "withdraw" the street from public use. The city agreed, but the lawsuit arose when nearby property owners complained that the closure of the street to public traffic was improper and infringed on their use of the streets. The court said: "The streets of a city belong to the people of the state, and every citizen of the state has a right to the use thereof, subject to legislative control." The court found that it is the state which has "sovereign power" over streets, even though a municipality make may "reasonable regulations" concerning traffic on the streets. ( Id. ) Most directly on point to your question was the fact that the California city was still going to be responsible for maintenance of the streets withdrawn from public use. The court explained:
If the streets are still "public," it makes no sense to classify them as public when it comes to the expenditure of public funds, but classify them as private when it comes to public use. Appellant cannot have it both ways. (Id. Emphasis added.)
There simply appears to be no authority to allow a gated community to control access over public streets. It would be a logical impossibility. I believe one of your choices would be to call the streets in the development "public," but then the developer could not block access to the streets. Your other choice would be to allow the developer to put up the gate, but the streets would have to be designated as "private." That, of course, raises other issues, such as, should you require the developer to build the private streets to conform with standards for public streets if the property owners should ever try to have the streets dedicated.
I am enclosing a copy of a sample ordinance from San Antonio, Texas, about "restricted entry access systems" which may give you some ideas. I'm also enclosing copies of three law review articles that discuss gated communities. These are the most recent information I could find on Westlaw. After the holiday break (UT is closed all of next week) I will be happy to try to get some of the newspaper articles referenced in the law reviews for additional ideas on this subject.