Northeast US - Sidewalk repair along state-owned Right of Way (ROW) 1

[RHTPE]

I have been asked to serve on a task force to determine the best course of action for my local municipality. This is perhaps more of a legal question than an engineering one, but I'm hopeful that someone has encountered a similar situation.

We have a mill village area that was developed long before the road along the mill was taken over by the State. The original mill owner had constructed a sidewalk along the road. At some point in time (many decades ago) the State improved the pavement and a bridge and may (or may not) have performed repairs to the sidewalk.

The sidewalk has since fallen into a state of disrepair. The State DOT disavows any responsibility for the maintenance of the sidewalk, even though it may be within their ROW. The mill owner feels the responsibility belongs to some entity other than himself, as the sidewalk serves a (very) small portion of the general public and is (technically) not on his property. The Town disavows all responsibility as they did not construct the sidewalk nor did they require its construction.

My questions for the members of the Forum:
1. Has anyone been involved in a similar situation and, if so, how was it resolved?
2. In a community in excess of 2 centuries old, how do local ordinances handle situations like this (we have no such ordinance)?
3. Does anyone have language for such an ordinance?

Keep in mind that this is not a small city - this is a small mostly rural/suburban (sidewalk-free) town. Our subdivision regulations suggest that sidewalks may be required, but the Planning Commission is loath to require them, as in all situations to date any sidewalks in new subdivisions would not connect with existing sidewalks that actually led somewhere. Which is probably why we have no local ordinance that addresses the sidewalk maintenance issue.

Ralph
Structures Consulting
Northeast USA

 

[Ron]

My first impression is that the owner of the ROW has the maintenance responsibility. Consider the municipality's aversion to sidewalks, why not just remove the poorly maintained ones and be like the rest of the area.

 

[RHTPE]

Ron, I would agree, but politics has a way of pushing things in unlikely directions.

Most of the distressed portions are actually at curb cuts for driveways & loading zones that benefit the abutting mill owners. My first reaction is that if the property owner benefits from the impervious surface (concrete sidewalk) then it should be his/her obligation to maintain it.

In many more urban areas of CT the municipality has the authority (by ordinance) to compel the abutting property owner to make the repairs, or the municipality can make the repairs and then bill (or lien) the property owner. Our municipality has no such ordinance. Nor am I convinced that one is needed, but then Common Sense is no longer common.


Ralph
Structures Consulting
Northeast USA

 

[bimr]

Agree with Ron.

How much sidewalk are you talking about?

The cost of removal should not be significant, and if the mill owner then determines that the sidewalks are necessary, the mill owner will pay to reinstall.

 

[RHTPE]

bimr & Ron, What may not have been clear enough, even though the title of my post said it, is that the sidewalk is on the State's highway ROW. Of course, the state DOT maintains that it is the Town's problem and not theirs.

bimr, I would agree that the removal cost would be minimal, however once removed it must be replaced or paved and cannot be left as exposed base material. If the Town were to effect the removal and the mill owners did nothing, I would suspect the Town would be held liable for any damage resulting from the lack of paved surface.

My limited research into policy & ordinances of other CT towns has found that perhaps 50% assess the abutting property owner(s) for all of the costs, about 25% split the cost with the property owner(s), and the remaining municipalities bear all of the costs. Prior to 1982 our state statutes specifically allowed the cities & towns to put the financial burden on the property owner(s). In 1982 the statutes were revised to remove this explicit authorization. Subsequent to that revision there remains a rather implicit collection of statutory language that, in the interest of "public improvement", still allows the local municipality to put the burden on the property owner.

This will be a "fun" group to work with, although after having served for 15 years on the PZC, this should be much simpler. More to come I'm sure.

Ralph
Structures Consulting
Northeast USA

 

[Ron]

Ralph,
I would think that the property owner would have no right to affect changes to public ROW. Further, the property owner would have to get indemnification from the state for damages in the event of an injury on the sidewalk if they replacement it. If I were the property owner, I would not make any changes, would require that the ROW owner correct or remove the "dangerous" conditions and stand my ground. If the sidewalk provides a safety function I would push for repair rather than removal.

The state or other political body can usually correct the issue and then assess the property owner for the improvement as you've discussed. What's fair? Look at the assessments for new water lines being put in where there were none before.

Politics often get in the way of good engineering. In that case, we have the obligation to point it out to them, particularly if public health, safety or welfare is involved.

 

[RHTPE]

Ron,

Thanks for the input. You make some very valid points. I have not yet agreed to serve on this committee, though I'm inclined to. I know a number of the people involved, including one of the mill owners, so I'm assured of some rather raucous meetings. It is not yet clear to me exactly what the charge of the committee will be - once that is established things could get interesting.

Ralph

Ralph
Structures Consulting
Northeast USA

 

[Ron]

Ralph....it would probably be good for you to be on that committee. They need the clear thinking you'll provide, which is often absent in such. I think you could make a lot of positive impact.

Ron

 

[ACtrafficengr]

You need to check your state's highway law. For example, Section 140 of NY's highway law requires towns to maintain sidewalks on state and county roads:

The town superintendent shall, subject to the rules and regulations of the department of transportation, made and adopted as provided in this chapter:
.
.
.
18. Maintain all sidewalks in the town constructed by the state adjacent to state highways and all sidewalks in the town constructed by the county adjacent to county roads and, when authorized by the town board, cause the removal of snow therefrom, and the cost thereof shall be paid from the miscellaneous or other town funds.

There is another section that allows the town to foist it off on the adjacent property owners, but I don't think this is fair unless it only benefits them and none of their neighbors.

 

[engineered2005]

In my past experience, even though the sidewalk exists in public ROW, the sidewalk is typically to be maintained, in acceptable condition by the property owner that said sidewalk fronts. This is the common reason when driving through small towns that there are often many different conditions of sidewalk along a single street. In addition to maintenance (re physical condition), clearing snow and ice is also typically the responsibility of the property owner.

My advice for you, from being both and engineer and a township supervisor (rural township, but same types of experiences), I would suggest a cost sharing replacement by the town and state. You may want to also look into acquiring federal funds for a streetscape type project since you're in a historic area. In my opinion, some sort of cost sharing mechanism will be the easiest route to resolve this dilemma with all parties mostly pleased.

 

[RHTPE]

blg923:

As with all things political, the answers depend on who you talk to and what their particular vested interest is.

From what I have learned from our local & State leaders, the State's position is that sidewalk maintenance is the Town's problem, even though it may be located in the State's highway ROW. Current state statutes are fuzzy on this topic after they were revised in 1982, so there is only vague authority hinted at in the statutes to support the position that the Town could push the costs on to the property owners.

The Town fathers do not want to set a precedence by assuming the cost of the sidewalk repair/replacement in this particular location, as this is a small local "village" area with a number of sidewalks along residential lots. All of them are quite old and in varying states of disrepair. Most are on ROWs associated with town roads and only a small percentage are in the state highway ROW.

The sidewalks only benefit those who live in this village and provide no benefit to the bulk of the town's residents. Even at that, there really is little benefit to those who live in the "village" as there are no amenities to which one could walk. Keep in mind that the original purpose of the mill village has been long gone. Many of the 2-3 family houses are now rental properties owned by the descendants of the original mill owner.

I am beginning to think that they all should be removed and replaced with curbs, top soil and grass. The only ones that should remain (in a replaced or repaired state) are those that serve as pavement for loading areas and driveways.


Ralph
Structures Consulting
Northeast USA

 

[ACtrafficengr]

I am beginning to think that they all should be removed and replaced with curbs, top soil and grass.

This is always an option, but since this is removal of a safety feature, you'll want to do your due dilegence, with proper documentation. Sidewalks are associated with a 50-88% reduction in walking-along-the-road crashes. That being said, most pedestrian crashes involve crossing the street, not walking along it.

NYSDOT has a pedestrian traffic generator checklist in their highway design manual used to determine if sidewalks are warranted. Your state DOT may have something similar.

I'm not a lawyer, but I think that if you can show that you used good engineering judgement, backed up with a documented and objective process, the liability risk for your town and yourself will be considerably reduced. Consulting with your town's counsel may be a good idea.

Your Local Technical Assistance Program, the Technology Transfer Center at the University of Connecticut may be able to help you, too, or at least connect you to other towns that have faced the same problem.

 

[engineered2005]

Was going to say the same thing as AC...in the type of area you're describing, what happens when someone is killed walking along the shoulder since an adequate pedestrian path is not provided? I understand you say there isn't much pedestrian traffic but we're in the times where we put ADA ramps in the middle of nowhere (with no connecting sidewalk) as a just in case measure.

Brian|PA EIT|Civil-Highway Engineer
Consulting Southcentral PA
PSU 2009|BS Civil

 

[dicksewerrat]

In Minneapolis, the City can require a sidewalk in front of a property. The property owner pays for the sidewalk and maintains it. However since the sidewalk is on the City ROW, when someone falls down the city pays the lawsuits.

Richard A. Cornelius, P.E.

http://WWW.amlinereast.com

 

[RHTPE]

An update for all who have offered their input:

I have been formally appointed to the Committee assigned with an as yet undeclared charge. No doubt this will result in a lot of discussion on a political level. Time will tell what the attorney(s) and the State legislators tell us that the Town can or cannot do.

Unfortunately in matters such as this Common Sense sometimes runs contrary to what the politicians and the courts may ultimately decide. Keep in mind that this is a small rural community that needs sidewalks as much as the Las Vegas suburbs need lawns.

I will report back after the Committee has its first meeting.


Ralph
Structures Consulting
Northeast USA

 

[Ron]

Ralph,
My condolences!
Keep us updated on your progress. Even though it will be a pain, you will provide a lot of value to the group if they will listen!

The stages of a committee member.... ...................


Good luck!

Ron

 

[racookpe1978]

In talking with the other legal entities who do NOT want to put up the repair money ...

(1) get a minimum-cost "make it safe" repair estimate.

(2) get a "threat assessment" estimate from a lawyer for a person who is killed/injured because the sidewalk was not repaired.

(3) get each "official" letter from each agency who refuses your repair budget to send a letter acknowledging the cost for repairs, and denying their ability/desire to make repairs and denying their responsibility for any subsequent injuries for any citizen injured on their right-of-way.

You will find no "official" wants to go on the record claiming they have no responsibility (big pockets) for a known hazard requiring a relatively small amount for repairs. That is, after all, what got GM in trouble right now.

 

[RHTPE]

racookpe1978:

Thanks for your input. As I see things right now, and this may change, is that:
- The mill buildings, church and residential buildings were constructed by one entity prior to the state acquiring the ROW.
- This was a typical New England mill village, i.e. the workers' housing, a store, post office, school & church as well as the mill were all under one owner.
- I do not yet know if there was a sidewalk constructed at the time the village was established.
- At some point in time after the village was established, the state acquired the highway ROW.
- I do not yet know for sure, but I suspect once the state acquired the ROW road improvements were made. It is not yet known if the state constructed (or reconstructed) the sidewalks.
- As the mill declined and the patriarch passed on, ownership of the buildings passed to various family members.
- Prior to 1982 state statute allowed each town to establish by ordinance a policy by which the town could initiate repairs and pass the costs along proportionately to each property owner.
- The town did not establish an ordinance as allowed by statute.
- In 1982 the state statute was revised making it much more difficult for the town to establish an ordinance addressing the matter of sidewalk maintenance. Remember, this is a rural community with little majority desire to have sidewalks.
- According to preliminary research done by our state senator, the state is not responsible for sidewalk maintenance even if it is within the state-owned ROW.
- My exploration of the statutes finds that if there is a clear public benefit, an ordinance could be established.
- The current local budget climate is such that using tax-payer dollars to fund the needed repairs will be met with extreme opposition. This financial pinch also applies to all of the affected property owners.
- The charge of the Committee I will be serving on has not yet been established.

I am simply exploring the situation and floating it out there for others to comment on based on their experience(s) with such matters. Realistically, I feel it is a legislative and/or legal matter and not an engineering matter. Being a rather pragmatic person, I see the benefit(s) of a renovated sidewalk accruing to the property owners and little, if any, benefit to the vast majority of the town's residents. But as you so realistically point out, who will be liable should someone get injured or die from injuries sustained because the repairs are not done?

Ralph
Structures Consulting
Northeast USA

 

[BigInch]

Seems like somebody should be able to solve the problem around there. Why not put it out for pubic opinion survey or a vote as to who should furnish the appropriate right of way for the sidewalk and who should pay for its installation.

Or just tell the mill that it would be a nice bit of PR to do it and if they refuse, the city will do it for "free", being that it should be relatively easy to raise their tax valuation, appropriate extra right of way from their property and then after being made public property, the city could build it without any further argument from them.

Problem solved!

I hate Windowz 8!!!!

 

[RHTPE]

BigInch:

There are no ROW issues - the State owns it.

The sidewalk exists and is very poor condition.

The State insists that (by statute not yet read) maintenance is the Town's problem, not theirs.

Since much of the "sidewalk" serves as driveway aprons (for the mill) as well, the taxpayers will balk if the Town covers the cost.

Dunning the mill owner(s) and the other property owners for the cost is a bit dicey since the Town never established an ordinance to address this prior to 1982 (see previous post).

It will be an adventure to work this out.

Ralph
Structures Consulting
Northeast USA