The U.S. Sixth Circuit Court of Appeals ruled against Nashville on Wednesday, overturning a lower court’s decision and setting up potentially expensive claims from property owners against the city’s sidewalk fund. Judges Eric Murphy, Alice Batchelder and Helene White sided with property owners’ arguments that Nashville violated plaintiffs' protections guaranteed by the Fifth Amendment’s “Takings Clause,” which prohibits the federal government from seizing private property without just compensation. Murphy, a Trump appointee and member of the Federalist Society, authored the ruling.
Amid widespread development in neighborhoods across the city, the Metro Council took a first pass at a sidewalk ordinance in 2017, updating it in 2019. The legislation laid out rules that require a homebuilder to pay for a sidewalk on their lot or pay equivalent costs into a sidewalk fund that paid for sidewalks across the city. The ordinance helped facilitate much-needed, sometimes disjointed sidewalk construction, occasionally leading to isolated construction mocked by critics as “sidewalks to nowhere.”
Federal Judge Aleta Trauger, a Clinton appointee, had previously upheld the city’s right to levy sidewalk contributions as a part of its permit process. Murphy disagreed, arguing that the situation qualified for, and failed, Nollan-Dolan tests regarding the constitutional limits of government action on private property. These tests require a “rough proportionality” between the burden a government puts on a property owner and the burden that owner’s project puts on society. Nashville’s code failed this test in part because, the court says, “sidewalks to nowhere” do little to remediate any harm caused by associated new construction from builders.
Since its conception, Nashville's sidewalk ordinance has inconvenienced developers and confounded zoning professionals. A recent dispute, in which an owner at Dozier Place in East Nashville sought a waiver from the ordinance, split Metro's Board of Zoning Appeals in April.
"Part of me has a real problem with the way this thing is drafted — the vagueness and discretion," board member Payton Bradford told colleagues about the sidewalk-building process.
Two Nashville homeowners, James Knight and Jason Mayes, brought the case and appeal. They were joined by conservative and libertarian advocacy organizations, including The Beacon Center of Tennessee, the Pacific Legal Foundation, the Texas Public Policy Foundation and the Southeastern Legal Foundation. Attorney Braden Boucek, legal director at the Southeastern Legal Foundation and active member of the Federalist Society, argued for Knight and Mayes.
“Permits are not a license to steal," says Boucek in a press release. "Every American property owner should celebrate this ruling because it protects them against cities holding their properties hostage."
The appeals court kicked the case back to district court, which will now decide what is owed by the city to plaintiffs. The decision could open the door for any builder affected by the ordinance in the past four years to seek similar reimbursement, putting the city in a significant financial bind.
“We are still digesting the opinion and will be discussing options with our client in the coming days,” says Metro law director Wally Dietz in a statement to the Scene.
“The characterization of a city requiring construction of sidewalks (and in certain contexts offering the option of a contribution in lieu of sidewalk construction) as ‘stealing’ would be laughable, if it were not so sad,” says Councilmember Angie Henderson, who sponsored the sidewalk legislation. “Metro Council and Metro Planning responded to the needs and safety concerns of communities all across the city, affirmed in two extensively stakeholded strategic plans, to implement requirements that overtime work in concert with capital investment to build a safe, walkable, traffic-reducing, transit-supportive network. This was good policy given Tennessee and Nashville’s particular challenges and constraints that has delivered much-needed sidewalks. I welcome the discussion about the path forward after this setback.”
