Build or pay a fee: Federal appeals court rules against Nashville in sidewalk dispute
A federal appeals court on Wednesday ruled against Nashville in a lawsuit over the city’s sidewalk construction requirements for new development, but it's still unclear exactly what practical implications the ruling will have.
The ordinance, last updated in 2019, requires that property owners on or near busy roads either build a sidewalk on their property for public use or pay a fee into a sidewalk construction fund to receive a building permit.
In October 2020, Nashville landowners James Knight and Jason Mayes sued Metro in federal court. Knight and Mayes each wanted to build single-family homes on their respective lots, triggering the city's sidewalk requirements.
Knight's building permit expired after the city denied his request for a waiver and he refused to build a sidewalk on his property or pay the fee. The city also denied Mayes a waiver but he ultimately paid the fee in lieu of building what he called a "sidewalk to nowhere."
Both argued that Metro coerced them “into forfeiting their constitutional right to not have property taken without just compensation.”
In response, Metro argued, among other things, that the sidewalk requirement was constitutional since it applied to all homebuilders in the relevant areas the same way, rather than on an administrative case-by-case basis. The district court sided with Metro.
Knight and Mayes, represented by Nashville libertarian think tank Beacon Center, appealed the ruling. The Southeastern Legal Foundation, a nonprofit legal organization also represented Knight and Mayes.
The 6th U.S. Circuit Court of Appeals on Wednesday reversed the district court’s decision, ruling that permit conditions set by the city legislature must adhere to the same constitutional tests as those imposed on an administrative basis.
Lawyers praise ruling, while city weighs options
Beacon Center praised the decision.
"The Court ruled that the city of Nashville cannot avoid constitutional protections for private property simply by taking individuals' property through legislative action," Beacon Center Attorney Meggan DeWitt said in a statement. "This was an enormous win for our plaintiffs and a reminder to Nashville that it cannot force a small group of property owners to cover the cost of public works. We are thrilled not only for our plaintiffs but for all citizens living within the Sixth Circuit whose constitutional property rights are protected better today than they were yesterday."
The appeals court left it to the district court to decide what relief to award to Knight, who lost his permit after he refused to pay a $7,600 fee, and Mayes, who paid a nearly $9,000 fee.
“The order is clear that what Nashville did is unconstitutional, so it will require a remedy that fixes it, and the most obvious ones are to pay back Jason (Mayes) and issue Jim (Knight) a new permit,” Braden Boucek, an attorney at Southeastern Legal Foundation representing the plaintiffs, said in an email.
What this means for other Nashville residents who paid for sidewalk construction under the ordinance is unclear. Metro’s Law Department couldn’t provide details on the ruling’s implications Thursday morning.
“We are still digesting the opinion and will be discussing options with our client in the coming days,” Director of Law Wally Dietz wrote in a statement.
Boucek wrote that the appeals court didn’t actually rule the ordinance unconstitutional, only that what happened to the plaintiffs was unconstitutional.
“… [A]bout whether the sidewalk ordinance is totally unconstitutional, the court left that question for another day,” Boucek wrote, although it's unlikely that the district court will hold that the ordinance is constitutional after the appeals court ruling.
Nashville's sidewalk investments
For decades Nashville invested little in public sidewalks, which placed pedestrians at a growing risk of danger as the city’s population grew and its streets got busier. In 2019, the city’s “pedestrian death index” was double the national average.
The city determined it would need 1,900 miles of new sidewalks to address the problem, but it lacked the resources to build even 100 miles in 20 years.
Nashville's Metro Council made the changes to its sidewalk requirements in 2017 as a way to speed up sidewalk construction. The ordinance applied to anyone looking to build single-family or two-family homes in areas Metro felt were of the “greatest need,” as well as to those looking to develop or redevelop multi-family homes and nonresidential buildings.
Council member Angie Henderson, a longtime advocate for walkability, ran for office in 2015 to address Nashville's lack of sidewalks and spearheaded the sidewalk ordinance. She said she spent months holding stakeholder meetings and crafting the legislation with Metro planners, administrators and legal counsel. The ordinance was ultimately endorsed by the Nashville Area Chamber of Commerce and celebrated by pedestrian nonprofit Walk Bike Nashville, and passed with 37 of Nashville's 40 councilmembers signing on as co-sponsors.
She said the requirements are the council's response to repeated pleas from constituents for more sidewalks and greater pedestrian safety, working within the bounds of a state that prohibits cities from charging development impact fees to fund the public improvements needed to match private growth.
Over the last five years, the requirements delivered a "significant amount" of sidewalks during a development boom in Nashville, she said.
"We have to elevate our capital expenditure on sidewalks, make that a really good pipeline … and require them through new development … that's not unusual for a city to require sidewalks through new construction," Henderson said Thursday.
But Knight and Mayes argued that not only were the requirements unfair, they often had dubious results.
“Nashvillians have noticed what Metro Councilmember Mary Carolyn Roberts called ‘the unintended consequences.’ Sidewalks that connect to nothing (sidewalks to nowhere) and zigzagging sidewalks began to appear across the city,” they wrote in their complaint.
Evan Mealins is the justice reporter for The Tennessean. Contact him at emealins@gannett.com or follow him on Twitter @EvanMealins.
Metro Nashville Sidewalk Or... by USA TODAY Network
This article originally appeared on Nashville Tennessean: Nashville sidewalk ordinance: Federal appeals court rules against city
