By Rachel O'Brien, Deputy Policy Editor, OpenTheBooks.com
Since the Sixth Circuit Court of Appeals ruled against Metro Nashville’s sidewalk ordinance in May, the city is no longer enforcing it and could be on the hook for reimbursing millions of dollars to its residents.
The federal court sided with two Nashville residents, James Knight and Jason Mayes, whom Metro Nashville told to pay $7,600 and $8,883, respectively, into a sidewalk fund when they were seeking building permits for their properties.
The two men argued that Metro’s sidewalk ordinance violates the U.S. Constitution’s Fifth Amendment Takings Clause, which prohibits the government from taking private property without “just compensation.”
The Nashville sidewalk ordinance, in effect since 2017, requires people building in certain areas to pay for a sidewalk on their property, as a condition of receiving a building permit. If there’s no sidewalk on their side of the street, they pay into a fund to create sidewalks elsewhere in the city.
Knight was unable to get a valid building permit because he refused to pay the $7,600, and Mayes ultimately paid his $8,883 fee instead of building what he said was a “sidewalk to nowhere.”
Even after paying into the fund, the Circuit panel noted, “All landowners must dedicate a ‘right-of-way and/or public pedestrian easement’ across their property. This dedication will allow the public to use the sidewalk whether it gets built immediately or at some future point.”
The three-judge federal panel reversed an earlier decision by a District Court in favor of Nashville. The higher court remanded it back to the District Court to “determine the appropriate remedy.”
Asked what this ruling means for Metro and whether they will amend the ordinance and return funds to other residents, a Metro Law Department spokesperson said, “Metro Nashville is no longer enforcing Metro Code 17.20.120. We are not aware of a current effort on the part of Metro Council to amend the ordinance. Metro Nashville is taking active steps to remove the requirements of Metro Code 17.20.120 from departmental documents and websites. We are still considering and discussing the ruling’s impact with affected departments to evaluate prior application of the ordinance to other permit applicants.”
Almost $16 million has been used to build sidewalks since 2015, according to Metro records provided through an open records request. The sidewalk fund currently has $11.3 million in it.
While “the appropriate remedy” may mean simply refunding Mayes’ $8,883 and giving Knight his building permit, the court could order Metro to refund other Nashville residents who were required to pay the sidewalk fee as part of their building permit fees. The ruling also opens the door for other lawsuits to recoup sidewalk losses.
The ordinance came as a possible solution to Nashville’s lack of sidewalks that makes it dangerous for pedestrians to walk in busy streets.
While Metro officials said the city needs 1,900 miles of new sidewalks, it hasn’t built even 100 miles in 20 years, The Tennessean reported.