Original Author: Hemsley, Sid
Date of Material: 03/23/1994
Reviewed Date: 10/07/2020
MTAS was asked whether the city acted legally in accepting a certain street.
Your question is, did the city act legally in accepting a certain "street"? I have responded to this question from several city officials, but in each case, my response was based on either incomplete or erroneous information. I have despaired of learning the correct facts behind the question; however, with luck, I have most of them now.
My opinion is that the city did not legally accept the street.
As I understand the facts, the street commissioner owned a certain piece of property within the city. In 1993 at his own expense, he had graded a 600 feet or so dead-end road off an existing city street [a state highway that runs through the city] onto that property, and located a dwelling for each of his daughter and son on either side of the road. In October and November of 1993, the street commissioner had some grading and graveling of the road, costing around $800, done at city expense. In his report to the city council in October and November, 1993, the street commissioner never mentioned that project to the council. In December, 1993, he asked the council to accept the road as a city street. At that time, questions were raised in the city council about the project and the propriety of the city paying for it. Nevertheless, in January, 1994 by a 3-2 vote the city accepted the road as a city street. The city commissioner voted for acceptance of the street.
In the past few days, the city has discovered an ordinance governing the acceptance of city streets. Passed on March 23, 1990, Ordinance No. 90-01 requires that the dedication be fifty feet wide, and that the street meet state specifications.
Generally, decisions on the location of a city's streets will not be questioned by the courts. It was said in Blackburn v. Dillon, 225 S.W.2d 46 (1949) that:
Whether a particular public officer acted within the law is a judicial question, but in the absence of fraud or bad faith, the validity of acts within the discretion of a municipal officer will not be entertained by the court. Courts will not assume that public officers will act dishonestly or dishonorably, or use their public trust for private ends, and in the absence of proof to the contrary, officers will be presumed to have acted in the exercise of their powers in the interest of the public and within the authority granted to them....Neither will the courts interfere with the exercise of the discretionary powers of the municipality as to the control of the streets except in case of fraud or a clear abuse of power.
[Also see Brimer v. Municipality of Jefferson City, 187 Tenn. 467, 216 S.W.2d 1 (1948)].
There is little Tennessee law on the question of what constitutes fraud or abuse of power in the location of city streets. In Sweetwater Valley Memorial Park v. Sweetwater, 213 Tenn. 1, 372 S.W.2d 168 (1968) the Tennessee Supreme Court said with respect to the closing of municipal streets, "In the absence of an allegation of fraud or a manifest abuse of discretion, courts will not inquire into the motives of municipalities for vacating a municipal street." Citing 25 Am.Jur. Highways, section 29, the Court continued:
The question of the necessity for closing a street or highway, as distinguished from the question of public purpose or use, belongs exclusively to the legislative department of the government. So, the province of the public authorities in whom the power to vacate is vested to determine when it shall be exercised, and their action in this regard will not be reviewed by the courts in the absence of fraud or a manifest abuse of discretion. The court cannot control or revise such decision on the ground of inexpediency, injustice or impropriety. [My emphasis]
Undoubtedly, the same rules apply whether the question is whether a street should be opened or closed. In other words, even if the court has to hold its nose over the facts surrounding a street location, it generally will not intervene merely because the decision may have been inexpedient, unjust or improper. Under that standard, fraud and abuse of discretion have very narrow definitions with respect to the location of city streets. But beyond that generality, it is difficult to determine exactly what constitutes fraud or abuse of discretion in that area.
However, in Cash & Carry Lumber Company, Inc. v. P.R. Olgiati et al., 385 S.W.2d 115 (1964), the same Court, relying on Sweetwater, went a little further in defining what constitutes fraud in the location of municipal streets, by declaring, "None of the officials here involved have been charged in the bill with acts showing falsity, concealment, deceit, or perversion of the truth. [Emphasis is mine.] Unfortunately, nothing the Court said was helpful in further defining abuse of discretion.
Applied to the street at issue in the city, the facts probably indicate no falsity, concealment, deceit or perversion of truth on the part of the city council in accepting the street. At this point, let it be clearly understood that that conclusion is based on the assumption that the facts I have been given are correct. If the street commissioner graded and graveled the street in question at city expense before the city accepted it, his conduct was clearly illegal, and the city's expenditures on the project were not for a public purpose and were likewise illegal. [The street commissioner's vote to accept the road as a city street is also legally questionable.] Arguably, if the city council expressly, or even perhaps impliedly, encouraged, promoted or approved the city commissioner's illegal expenditure of public funds on the road as an intentional subset of the street acceptance process, the acceptance may be tainted with fraud.
However, as I understand the sequence of events surrounding the acceptance of the street, both the events and the city council's participation in them, were well-understood by the public, and the formal process of dedication and acceptance was open and above board. In fact, because of the notoriety of the entire process, there is a an intense political furor surrounding the street. For those reasons it is probably unlikely that there was fraud on the part of the city council in its acceptance of the street, within the narrow meaning of the term with respect to the location of city streets. Obviously, that answer might change if some or all the city council were involved in questionable maneuvers of which I am not aware with respect to the street commissioner and the street.
We are left with the question of whether the city's acceptance of the street was an abuse of discretion.
The acceptance of the street was probably an abuse of discretion on at least one, and possibly two, grounds. The clearest ground is that the acceptance of the street violated the city's own ordinance governing the acceptance of streets. Ordinance No. 90-01 limited the city's discretion to the acceptance of city streets in which a fifty foot right of way had been dedicated and which met state standards. I do not know if a fifty foot right of way was dedicated, but the street does not comply with state standards. While the ordinance does not define state standards, I think it could be fairly read into the ordinance that the state standards intended by the city council were those that apply to paved streets.
The second ground relates to the question of whether on the facts independent of Ordinance 90-01 the acceptance of the street was an abuse of discretion. That question is more difficult to answer.
As I told all the public officials who have called me on this issue, there is nothing inherently wrong with a city accepting the dedication of streets, dead-end or not, with a limited number of abutting dwellings as long as they otherwise qualify as public streets. The problem here is the facts and the parties involved in the acceptance of the street. It is clearly within the authority of the board of commissioners to accept city streets, apparently even if the result is inexpedient, unjust or improper. But it is a judicial question whether there has been fraud or abuse of discretion in the location of city streets, and I have no doubt there is a limit on how much inexpedience, injustice or impropriety the courts would tolerate. The Tennessee court does not appear to have drawn the line on what constitutes abuse of discretion in this area, but I suggest this case comes at least close to the outer limit and may well go over it.
In defense of the city council's acceptance of the street in question, I was told that the city has accepted other streets upon which are located one or two dwellings. However, in none of the instances related to me, were the sole beneficiaries of the acceptance a commissioner and his children, let alone a street commissioner, and his two children. In addition, none of the cases involved a commissioner, let alone a street commissioner, who used public funds to improve a private street upon which only his children live, which street the city council subsequently accepted with knowledge that there may have been improprieties in its grading and graveling at city expense. At least two streets cited to me were county roads that came into the city upon incorporation, and which the city for a time neglected and subsequently accepted by ordinance. However, the ordinances were superfluous notwithstanding the temporary neglect of the streets, because those streets became city streets by operation of law upon the effective date of the incorporation of the city. [See T.G. Jordan et al. v. City of Cleveland, 148 Tenn. 337 (1922)] Under the facts, those ordinances serve as no precedent for the city's acceptance of the street in question.
Whether there was fraud or an abuse of discretion in the location of a city street is a judicial question. I am convinced that even in the absence of Ordinance No. 90-01, a court might find that even if no fraud was involved in the acceptance of the street, the acceptance constituted an abuse of discretion. But as already pointed out, I do not think a court would have to reach that question because Ordinance 90-01 itself limited the city's discretion, and the city abused it in accepting a street that did not meet the street acceptance standards contained in that ordinance.
As I see it, the city has two viable options in this case:
1. Do nothing. The city has formally accepted the street in question by ordinance. It can continue to treat the street as a city street unless the acceptance is successfully challenged on the basis of fraud or abuse of discretion.
2. Abandon the street the same way it accepted it: by ordinance. As pointed out above, the city has broad discretion in the abandonment of its streets. Under the facts, even if they had a mind to do so, I highly doubt the street commissioner or his children (or anyone else) could successfully challenge the abandonment.
I make no recommendation of which option the city should select because the city's decision will undoubtedly have to consider the political implications.
Sidney D. Hemsley
Senior Law Consultant