STORY

October 28, 2020 10:09AM

Case Status: Plaintiffs received a huge win in the Sixth Circuit Court of Appeals on May 10, 2023. The Court of Appeals agreed with Plaintiffs about the appropriate constitutional test to apply when determining if forced compliance with Metro’s sidewalk ordinance constituted a taking. The case ended after a favorable settlement that prevents the government from enforcing the unconstitutional law in the future.

Nashville’s Sidewalk Mandate: Home improvements are (still) not a government license to steal

The Story

Nashville has decided sidewalks are a priority. The problem is that Nashville does not know how to pay for them.

Given Nashville’s finances, which are terrible, this should come as no surprise. With the state threatening to step in and take control, and a proposed tax hike of 34%, Nashville’s fiscal picture does not include installing and upgrading city sidewalks. Looking for a source of funding, Nashville resorted to using its building permits as currency.

Jim Knight bought a piece of property on Acklen Park Drive, which lacks sidewalks. In Jim’s case, building sidewalks on Jim’s property would cause problems for the city. Metro Public Works and the Stormwater Department determined that building a sidewalk there would cause drainage issues for the neighborhood. Nashville told him that he could build a modified sidewalk or pay a sizable fee to get out of the condition altogether. Jim has thus far refused to pay, which is holding up his building project.

Jason Mayes’s parents gave him and his family the vacant lot next to their home on McCall Street. Out of a desire to remain close, Jason and his wife planned to build their family home on that lot. When he applied for a building permit, Nashville demanded he build a sidewalk even though there are no sidewalks on his side of the street. As the picture depicts, there are no sidewalks anywhere around the property. Jason pleaded with the city to be relieved of this obligation. The City made him comply anyway. Jason wound up having to pay Nashville an $8,800 “in lieu” fee before he could proceed with building his family’s home.

Jim and Jason are just a few examples. Anyone in the home building and home improvement industry has tripped over this law. Of course, the natural effect of all of this is to drive up the cost of housing in Nashville even further, a painful reality for many Nashvillians as they seek affordable places to live.

The Problem

If Nashville wants sidewalks, then Nashville needs to pay for them. It (still) cannot make its citizens pay for publicly owned infrastructure. This case is our second challenge to Nashville’s sidewalk law in light of the city’s decision to revise the law in response to our first challenge. The judge in the first case ruled that she would not address the law as revised.

Nashville makes homeowners pay for public sidewalks by holding their building permits hostage. The homeowner must construct sidewalks or pay the city to build them. This is a requirement even where there are no sidewalks to begin with, and even if the person did not destroy an existing sidewalk. Nashville’s sidewalk law is unconstitutional. It cannot use its building permits to fund unrelated city projects.

The sidewalk law makes absurd demands. It doesn’t matter whether the neighborhood has perfectly functional existing sidewalks, or no sidewalks at all. People are forced to build sidewalks in neighborhoods where it makes no sense. People are forced to destroy existing sidewalks and rebuild them.

Nashville’s sidewalk law imposes tremendous financial burdens on everyday Nashvillians like Jason Mayes and Jim Knight, who we will represent in this case.

The Law

Neither plaintiff seeks to change the zoning of their property. That is, both of their properties already permit building single-family homes. Both parties only intend on doing something they are fully allowed to do under Nashville’s residential use rules. This is significant because they are not adding density to Nashville or increasing pedestrian traffic and the demand for infrastructure.

It makes no sense to demand sidewalks in exchange for a building permit. It is also unconstitutional. According to the U.S. Supreme Court, local governments cannot use their permitting authority to exact financial concessions unrelated to the intended use of the land from property owners. But that’s exactly what Nashville is doing with sidewalks.

This is our second challenge to the law. The first challenge is ongoing. But after we filed the lawsuit, the city “amended” the law. The proposed amendments maintain the fundamental problem—if you want a building permit, then you need to build or pay—but made some minor changes around the edges about when it would apply and offering homeowners the ability to beg the city’s zoning administrator to alter the terms.

We will challenge the latest version of Metro’s sidewalk law as an unconstitutional taking of property in federal court. We will seek a declaration of unconstitutionality, an injunction discontinuing the law’s enforcement, and restitution for return of any funds paid by our clients. We may also argue under state law that the law is an instance of unjust enrichment, and an illegal way to garner revenue since it is neither a tax nor special assessment.

Documents

Complaint

Metro’s Answer

Plaintiffs’ Motion for Summary Judgment

Metro’s Motion for Summary Judgment

Plaintiffs’ Response to Metro’s Motion for Summary Judgment

Metro’s Response to Plaintiffs’ Motion for Summary Judgment

Plaintiffs’ Reply to Metro’s Response to Plaintiffs’ Motion for Summary Judgment

Metro’s Reply to Plaintiffs’ Response to Metro’s Motion for Summary Judgment

Plaintiffs’ Motion for Partial Summary Judgement

Metro’s Motion for Partial Summary Judgment

Plaintiffs’ Response