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Nashville defends ordinance requiring homeowners to pay for sidewalks

Two property owners filed suit over the city’s requirement to either build or pay for sidewalks in order to obtain building permits. After losing in district court, they’re now asking the Sixth Circuit to find the ordinance unconstitutional.

(CN) — Whose responsibility is it to pay for new sidewalk infrastructure in Nashville? The city told the Sixth Circuit on Thursday that sidewalks should be funded by property owners who apply for new construction, regardless of the development’s impact on density.  

Jim Knight, who wanted to build a single family residence on his property in midtown, was told that in order to obtain a building permit for the project, he either had to construct a sidewalk on his property or pay an “in-lieu” fee of $7,600 to the city so the lack of a sidewalk could be mitigated elsewhere. He never obtained the building permit and instead filed suit in federal court.  

Similarly, Jason Mayes decided to build a single family home on his lot in south Nashville. Although no sidewalks existed on either side of his property, the city required he install one on his lot or pay a $8,883.21 in-lieu fee. Mayes paid and received his permit, but then appealed to the board of zoning adjustment for a refund. It was denied and the city used the funds to build a portion of sidewalk 3 miles away from Mayes’ house. He also sued.  

Nashville’s current sidewalk ordinance was approved in 2017 and designed to increase the pedestrian infrastructure of the booming city, where only about 19% of streets were designed with sidewalks, according to nonprofit organization Walk Bike Nashville, which supported the ordinance.

The group specifically pointed to the Nations neighborhood in west Nashville, where more than 5,000 homes have been built since 2011, all without sidewalk infrastructure. If the ordinance had been in effect at the time those houses were built, it would have added 26 miles of sidewalk to the city. But the ordinance also applies to single lots, regardless of whether the lots adjoin existing sidewalk infrastructure.  

In November 2021, a federal judge determined that the plaintiffs could prevail on unconstitutional conditions claims if they applied to permit rules enacted by the legislative branch when challenged under the takings clause of the Fifth Amendment. But U.S. District Judge Aleta Trauger ruled that's not the case, finding the test only applies to administrative actions and the ordinance is a legislative act.

Knight and Mayes appealed to the Sixth Circuit, and on Thursday their attorney Braden H. Boucek with the Southeastern Legal Foundation asked a three-judge panel to overturn Trauger's ruling. According to his brief filed with the Cincinnati-based appeals court, the case raises the question of whether the unconstitutional conditions doctrine applies to all branches of government under the takings clause. 

“Under Nashville's law, individuals are required to surrender property to the city in the form of easements, construction of public sidewalks or payments of in-lieu fees in exchange for building permits,” Boucek said, noting he wasn’t aware of any municipality anywhere with a similar ordinance. “The regular way is [to] tax and spend and install sidewalks themselves, as you would any form of infrastructure. But what we don’t do is ask certain individuals, in exchange for an additional benefit, to fully bear the cost of installing and maintaining public infrastructure. What you’ve done is ask certain individuals to alone to bear the costs of addressing a public concern.” 

Boucek urged the panel to review whether the district court properly evaluated the argument using relevant Supreme Court precedent, particularly the cases Nollan v. California Coastal Commission and Dolan v. City of Tigard, which found governments are able to expect individuals to mitigate potential harms of development through permit restrictions, but they cannot abuse their authority.  

“Oftentimes, local governments yield that authority in abusive fashions, requiring permit applications in a uniquely vulnerable state to address public problems that are long standing and not of their making,” Boucek said. “The [district court] said that falls outside the city’s police powers and went so far as to compare it to a form of extortion in multiple occasions.” 

In response to a judicial question, Boucek said the city’s remedy is eminent domain.  

Attorney John Ayers, representing the city, pushed back on Boucek's arguments.

“Can the government abuse its substantial discretion and power in the permitting process to essentially rip landowners off?” he asked. “That is not what’s happening with the sidewalk ordinance. There is zero discretion in how it applies.” 

Ayers said the city also has no discretion in the variance process.    

“The conditions are written into the ordinance so there is no mystery, there is no negotiation, there is no horse trading … it either applies or it doesn’t and the conditions it imposes are black and white,” he said. 

In his rebuttal, Boucek said "constitutional tests do not turn on which branch of government is violating the rights."

"What matters for the purposes of Nollan and Dolan is not who imposes the exaction, but what the exaction does. In short, we just ask the court to make one simple finding: that governments cannot exonerate an unconstitutional condition by enacting it into law," he said.

The case was heard by Senior U.S. Circuit Judges Helene N. White Alice M. Batchelder, appointed to the court by George W. Bush and George H.W. Bush, respectively, and U.S. Circuit Judge Eric E. Murphy, a Donald Trump appointee.

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