Nashville loses battle over sidewalk ordinance at Sixth Circuit

(CN) — The city of Nashville has been dealt a blow in its efforts to increase walkability by requiring individuals seeking development permits to pay for new sidewalks.

On Wednesday, the Sixth Circuit ruled the city’s 2019 sidewalk ordinance leaves property owners vulnerable to unconstitutional takings under the Fifth Amendment and remanded the case for the district court to decide the appropriate remedy.

More specifically, the city’s ordinance requires developers to either grant an easement to the city and build sidewalks across their own property as a permit condition, or pay a sidewalk fee into an infrastructure bank, where the city could use the funds to construct sidewalks in high-traffic areas. 

A lawsuit was filed by two separate land owners, both of whom argued their property could not reasonably accommodate sidewalks and each of whom sought variances from the city or a waiver of the fee. If a developer opts to pay into the infrastructure bank, the city calculates their fee based on an average construction cost of $186 per linear foot. One of the plaintiff applicants was charged a fee of $7,600 while the second was required to pay $8,883.21.

In oral arguments last year, the parties disagreed over which governing test to apply to the property owners' Fifth Amendment claim. Nashville argued the claims should fail because its ordinance was a legislative act rather than administrative act.

But on Wednesday, the appellate panel agreed with the plaintiffs' test, finding governments cannot abuse their authority to expect individuals to mitigate potential harms of development through permit restrictions.

“On the one hand, a condition on a permit can serve important purposes by forcing an owner to internalize the costs (the 'negative externalities') that a development will impose on others,” wrote U.S. Circuit Judge Eric E. Murphy, a Donald Trump appointee, in the unanimous decision. (Parentheses in original.)

As an example, the judge said the government may legally require a developer to grant an easement for road widening if traffic is justifiably effected.

“On the other hand, the government might try to leverage its monopoly permit power to pay for unrelated public programs on the cheap,” Murphy continued. “If the expected value of an owner’s proposed project exceeds the condition’s expected costs, the owner has an incentive to give in to this ‘demand’ even when the demand has no connection to the project’s harmful social effects. Yet this type of coercion falls near the core of the takings clause, which bars the government from forcing a few people to bear the full cost of public programs that ‘the public as a whole’ should pay for.”

In order to succeed on its claims, Murphy wrote, Nashville must pass a three-part test: First, would the action qualify as a “taking” if the government had directly required it? If so, the government must demonstrate “a nexus between the condition and the project’s social costs.” Finally, “the government next must show a ‘rough proportionality’ between the condition and the project; that is, the condition’s burdens on the owner must approximate the project’s burdens on society.”

Nashville failed to do so, the Sixth Circuit judges found.

“In short, the relevant constitutional provisions on their face offer no plausible path for Nashville’s request that we adopt different takings rules for conditions imposed by different branches of government,” Murphy concluded. “If anything, the framers designed the takings clause precisely to protect against legislative action — a historical fact that undercuts Nashville’s claim that we should review legislative conditions with a more deferential eye.”

Concurring with the ruling were Senior U.S. Circuit Judges Helene N. White and Alice M. Batchelder, appointed to the court by George W. Bush and George H.W. Bush, respectively.

Nashville is among the deadliest cities in the nation for pedestrians. Despite increasing its annual capital spending on sidewalks to $30 million, the city estimates it would take 20 years to increase its sidewalk infrastructure by just 71 miles in critical areas, according to the ruling. 

Follow @gabetynes

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