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Municipal Technical Advisory Service (MTAS)

Original Author: Hemsley, Sid
Date of Material: 12/10/2008


Requiring Developers to Construct Sidewalks in Developments in the County

Reviewed Date: 05/06/2020
MTAS was asked whether the regional planning commission could require developers to construct sidewalks in developments in the county.

December 10, 2008

Dear Sir:

Your question is: Under its regional planning authority, can the City's Regional Planning Commission require a developer to build sidewalks in addition to streets in a development outside the city?

The Municipal Code, Article I, ''78-26-31, reflects that the city has a regional planning commission. As Article I, '78-31 itself points out:

The regional planning commission shall have the powers, duties and responsibilities set forth in T.C.A.''13-3-101B13-3-105, 13-3- 201B13-3-203, 13-3-301C13-3-303, 13-3-401B13-4-105, 13-4- 301B13-4-309 and 13-7-201B13-7210.

I am working under a handicap on this question because while I have the city's zoning ordinance, I do not have its subdivision regulations. But I will assume that it contains regulations governing standards and procedures for the acceptance of roads and streets. I will address the state law that might have a bearing on your question.

There is no language in the general law governing either municipal planning or regional planning that addresses the question of whether subdivision regulations can require that developers build sidewalks, it seems abundantly clear that municipal and regional planning commission subdivision regulations can require developers to construct roads and streets. In Foley v. Hamilton, 659 S.W.2d 356 (Tenn. 1983), the Tennessee Supreme Court took great pains to lay out the state statutes that govern regional planning commissions'subdivision regulations, and the part roads play in those regulations. The court itself stated the facts and the law that applied to them:

The facts adduced at trial reveal that the subdivision in question was developed in 1973 by Hamilton and Roberts, d/b/a Hamilton- Roberts Development Co., and although not located within the corporate limits of the City of Gatlinburg, said subdivision was within five miles of the city and thus within the territorial jurisdiction of the Gatlinburg Regional Planning Commission pursuant to T.C.A. '13-3-102. Therefore, pursuant the Commission's authority under T.C.A. '13-3-403, the subdivision had to conform with the Commissions subdivision regulations, [emphasis is mine] enacted in January, 1973, and a plat of the subdivision had to be approved by the Commission before said plat could be recorded and lots therein offered for sale by the developers. [At 357]

Of course, the subdivision regulations required that roads be built to a certain standard.

The court outlined the statutes governing subdivision regulations, and declared that " The common thread running through this legislative system is protection of the public, guaranteeing that adequate streets will be provided when property is subdivided." [360]

If under Foley a regional planning commission's subdivision regulations can include a requirement that a developer build roads or streets in his development, does such authority extend to sidewalks. I have found no case directly on this question, but in the very recent unreported case of Jenkins v. Southland Capital Corporation, 2008 WL 4335076 (Tenn. Ct. App.), one of the grounds raised by the plaintiff in attempting to recover damages for deaths and personal injuries was that the defendant had not constructed the sidewalks along a certain road, as required by the Shelby County/Memphis Subdivision Regulations. Apparently, no issue was raised about the right of those governments to enact sidewalk requirements in those regulations, although the case was resolved on statute of limitation grounds.

I assume that the subdivision regulations in at least several cities contain sidewalk construction requirements. But apparently the subdivision regulations in your City do not. The question that appears to follow is whether sidewalks are a part of roads and streets. Surprisingly, I can find no cases on that question with respect to roads, but the answer is generally and specifically yes with respect to streets.

Tennessee Code Annotated, '13-3-401 defines " Road" or " roads" as " means, relates to and includes roads, streets, highways, avenues, boulevards, parkways, lanes or other ways or any part thereof." [Emphasis is mine.]

It is said in 10A McQuillin, Municipal Corporations, '30.111 (3rd ed.) that:

Street in its broad and general sense includes sidewalk, that is, a sidewalk is part of, and included within the term street. Furthermore, a street used only by pedestrians is nevertheless a public highway, and a street within the legal meaning of that term. So in statutes and ordinances the term " street" is construed to include sidewalks unless the language with which it is associated changes or restricts its signification....

The law in Tennessee is the same: a sidewalk is a part of a street or roadway, and a city has the authority to determine what kind of transportation is allowed (and presumably required) in the street or road easement, including pedestrian traffic via. sidewalks.

Tennessee Code Annotated, '55-8-101 et seq. contains the Rules of the Road for the operation of motor vehicles in Tennessee, and defines both " street" and " highway" as " the entire width between boundary lines of every way when a part thereof is open to the use of the public for purposes of vehicular traffic." [Subsections (22) and (61)] In addition, it defines " sidewalk" as that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, intended for the use of pedestrians.[Subsection (56)]

In Blackburn v. Dillon, 225 S.W.2d 46 (Tenn. 1946), it was held that municipalities have the discretion as to what forms of public travel are permissible within the right-of-way. In that case, the width of the street easement was clearly 40 feet, and the only question was whether the city had the authority to authorize a sidewalk within that easement as a form of public travel. The court held that the answer was yes, which also declared that A[t]he term street in ordinary legal signification includes all parts of the way, roadway, gutters and sidewalks [Citing Elliot on Roads and Streets 4th ed.), '23, p.25. [At 47]

It stands to reason that if the city could construct a sidewalk as part of the street, and could require developers to build " streets" it could require developers to build sidewalks, they being a part of a streets.

It is also said in City of Memphis v. Hood, 345 S.W.2d 887 (Tenn. 1961), with respect to a person who was unhappy with the fact that the city was going to build a sidewalk on part of the land he had dedicated to the city for a street, that:

The fact that this disputed strip is now going to be only half used as a street and the other for sidewalks and things of that kind is all in sense part of the widening of the street, even
though this particular thing , the way it is now done, was not in the minds of the parties at the time they dedicated it.... [At 893]

That is the best case I can make at the moment for the proposition that subdivision regulations can require the construction of sidewalks as a part of a road or a street. The law governing city streets as opposed to county roads probably supports that proposition better as to city streets than it does as to county roads. But an argument can be made that roads and streets are the same thing for the purposes of sidewalks being a part of them.

I am prepared to spend much more time on this question, but I understand that you needed something on this question right away. But I am not sure that additional research on it will produce a better answer.


Sidney D. Hemsley
Senior Law Consultant