Knight v. Metro. Gov't of Nashville & Davidson Cnty.

• Decision Date: 16 November 2021
• Docket Number: Case No. 3:20-cv-00922
• Citation: 572 F.Supp.3d 428
• Parties: James KNIGHT and Jason Mayes, Plaintiffs, v. The METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

572 F.Supp.3d 428

James KNIGHT and Jason Mayes, Plaintiffs,

v.The METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, Defendant.

Case No. 3:20-cv-00922

United States District Court, M.D. Tennessee, Nashville Division.

Filed November 16, 2021

Braden H. Boucek, Kimberly S. Hermann, Southeastern Legal Foundation, Roswell, GA, Meggan S. DeWitt, Beacon Center of Tennessee, Nashville, TN, for Plaintiffs.

Allison L. Bussell, John W. Ayers, Metropolitan Legal Department, Nashville, TN, for Defendant.

MEMORANDUM

ALETA A. TRAUGER, United States District Judge

Plaintiffs James Knight and Jason Mayes are individuals who own residential property in Nashville, Tennessee. They have brought suit challenging the constitutionality of the so-called Sidewalk Ordinance implemented by the Metropolitan Government of Nashville and Davidson County ("Metro"), which the plaintiffs describe as "conditioning home building permits on the property owner's funding of sidewalks." (Doc. No. 1, at 1.) Now before the court are two Motions for Summary Judgment, one filed by the plaintiffs (Doc. No. 18), and one filed by Metro (Doc. No. 21). For the reasons set forth herein, the court will grant Metro's motion and deny the plaintiffs’.

I. FACTS AND PROCEDURAL BACKGROUND

The facts, for purposes of both parties’ motions, are basically undisputed.

In 2019, Metro passed Ordinance No. BL2019-1659, amending Metropolitan Code § 17.20.120, the "Sidewalk Ordinance." The Sidewalk Ordinance applies to the construction of all new single-family and two-family homes and to the substantial renovation or expansion of existing single- and two-family homes¹ within the "urban services district, or within a center designated in the general plan, or [if] any of the property frontage is within a quarter mile of the boundary of a center designated in the general plan, or the property is on a street in the major and collector street plan." Metro. Code § 17.20.120(A)(1).²

Any property owner who wants to construct a new residence on property within the area covered by the Sidewalk Ordinance must agree to construct a city sidewalk on the owner's property frontage in order to receive a building permit, id. § 17.20.120(C), unless the owner obtains from the "Zoning Administrator" a waiver of the requirement, based on one of the circumstances identified in § 17.20.120(A)(3), or unless the owner is authorized, based on "unique situations," to make an "in-lieu contribution" (the "in-lieu fee") to Metro's pedestrian benefit fund as "an alternative to construction" of a sidewalk, id. § 17.20-120(A)(3)(b), (D)(1).

The in-lieu fee is established by Metro Public Works every year on July 1, based on (but reduced from) the average cost of all new and repair sidewalk projects contracted for or constructed by Metro over the preceding three years. (Doc. No. 28, Hammond Decl. ¶¶ 5–8.) The "in-lieu fee" cost-per-linear-foot figure for the year 2020–21 was $186. (Id. ¶ 4.) This cost is published at https://www.nashville.gov/departments/planning/long-range-planning/transportation-planning/sidewalks. The total in-lieu fee is capped at no more than three percent of the "total construction value of the permit." Metro. Code § 17.20-120(D)(1). As of January 2020, the actual cost to Metro to build sidewalks averaged $837 per linear foot, of which 18% is attributable to service costs and 82% to construction costs.

The Sidewalk Ordinance also states that the "[d]edication of right-of-way and/or public easement is required to permit present or future installation of a public sidewalk built to the current standards of the Metropolitan Government," Metro. Code § 17.20.120(E), apparently irrespective of whether the property owner builds the sidewalk or pays the in-lieu fee.³

The purposes of the Sidewalk Ordinance, as stated in the recital clauses of BL2019-1659, include:

(1) To "provid[e] a wider variety of safe transportation options in a rapidly growing Nashville" through sidewalks, which are "critical infrastructure";

(2) To "benefit homeowners and neighborhoods by providing a safe and designated path for connecting to schools, parks, libraries, businesses, and transit, and thus homes connected to nearby attractions increase in value";

(3) To reduce the number of people killed on Nashville's streets while walking;

(4) To provide for the "timely and cost-effective provision of sidewalks within the public right-of-way in the areas of greatest need and where the impact of Nashville's growth is greatest, aligned with the General Plan and related strategic plans in Nashville and Davidson County";

(5) To "create a publicly transparent, documented, noticed, and appealable process for the consideration of hardship waivers, in whole or in part, to the various provisions of Title 17.20.120";

(6) To "facilitate safe and convenient pedestrian movements for residents, employees and/or patrons";

(7) To "reduce dependency on the automobile, thus reducing traffic congestion on the community's streets and protecting air quality";

(8) To "designat[e] ... accessible and safe path[s] for walking," in order to "increase homeowner and community health and social connections";

(9) To "minimize conflicts between vehicular and pedestrian movement along corridors and within and around centers identified in the General Plan" and "offset a portion of the vehicular traffic consequences of population growth and increased density";

(10) To "create[e] a safe and convenient sidewalk network along the streets, corridors and centers ... where the impact of Nashville's growth is greatest"; and

(11) To "create greener, safer, and more accessible streets for all users."

(BL2019-1659, Doc. No. 1-2, at 1–2.)

Another purpose of the Sidewalk Ordinance is to further Metro's interest in effectively managing stormwater flow by ensuring that sidewalks are built according to uniform engineering standards approved by the Department of Public Works. (Doc. No. 20-4, Metro's Supp. Answers to Pl.’s 1st Set of Interrogs. ¶ 7.)

In an undated slide presentation regarding the Sidewalk Ordinance, supposedly shown to unidentified "stakeholders"⁴ by unidentified Metro representatives, increased time and expense are identified as "challenges" to funding sidewalks through a Metro capital project, while one advantage of "private development" is that property owners are responsible for sidewalks on their "own property." (See Doc. No. 20-4, at 25.)⁵

Plaintiff James Knight

Plaintiff James Knight owns a lot at 411 Acklen Park Drive in Nashville. The property is zoned for medium-density residential development, meaning that the construction of a single-family home on the lot is allowable under existing zoning. The lot at 411 Acklen Park Drive does not border or connect to any lots with sidewalks. As a condition of issuing a permit to construct a single-family home on the lot, Metro required Knight either to construct a sidewalk on the property or pay an in-lieu fee of $7,600.

In 2018, Knight demolished the existing 790-square-foot home on the lot. In 2019, Knight applied for a building permit to build a 2,651-square-foot residence, with a 323 square-foot garage and porches covering an additional 468 square feet on the lot. After Knight applied for a building permit, Public Works advised his project manager, Erick Stevenhagen, that constructing a sidewalk on the property would create water runoff issues that could cause water pooling and flooding on neighboring properties. The problem was not entirely attributable to building a sidewalk; it was also partly attributable to Knight's desire to build a bigger house than the existing house on the lot, which would have increased the percentage of the lot covered with impervious surfaces.⁶

In October 2019, Knight filed a Codes Waiver Zoning Request, asking the Zoning Administrator to waive Knight's compliance with the Sidewalk Ordinance. The Zoning Administrator denied the request upon the recommendation of the Planning Department on January 15, 2020. Knight appealed to Metro's Board of Zoning Appeals ("BZA"), requesting that he be allowed to proceed without building a sidewalk or paying the in-lieu fee. The BZA conducted a hearing on his case on May 21, 2020. It denied Knight's petition but offered him the choice of building an "alternate sidewalk that is reviewed with Public Works"—presumably using permeable building materials—or paying the in-lieu fee.

When Metro refused to remove the condition that Knight either build a sidewalk on the lot frontage or pay the in-lieu fee, Knight refused to comply or to grant an easement for a sidewalk at 411 Acklen Park Drive, and his building permit expired. He states that, "[b]ut for the sidewalk condition, [he] would have proceeded with the project, agreeing to Metro's other requirements for building a home on the property." (Id. ¶ 20.) To date, he has not built a home at 411 Acklen Park Drive. He states that, if the sidewalk condition is removed, he will "obtain another construction permit and proceed with building a single-family home at 411 Acklen Park Drive." (Id. ¶ 21.)

Plaintiff Jason Mayes

Plaintiff Jason Mayes owns a lot at 167 McCall Street in Nashville, within the urban services district. The lot is zoned for low-medium density residential, meaning that the construction of a single-family home on the lot is allowable under existing zoning. The lot at 167 McCall Street does not directly border or connect to any lots with sidewalks. There is a sidewalk on the opposite side of the street from 167 McCall Street.

At the time Mayes acquired the lot, it was vacant. In November 2019, Mayes applied for a permit to build a new single-family home with 2,375 square feet of living space and a 640-square-foot garage. As a condition of issuing a permit to construct a single-family home on the lot, Metro required that Mayes either construct a sidewalk on the property or pay an in-lieu fee of $8,883.21. Mayes’ request for a waiver of the sidewalk requirement was denied. Mayes paid the in-lieu fee, was...