Knight v. Nashville

Home improvements are (still) not a government license to steal

About the Case

The City of Nashville is once again holding building permits hostage until private property owners agree to foot the bill for publicly owned infrastructure, namely sidewalks throughout the city. Nashville has decided sidewalks are a priority. The problem is that Nashville does not know how to pay for them. Looking for a source of funding, Nashville has resorted to using its building permits as currency. Not only is this not good public policy, but it is also unconstitutional because building a house in one part of Nashville does not create a need for sidewalks across town. Southeastern Legal Foundation has teamed up with Beacon Center of Tennessee and plaintiffs Jim Knight and Jason Mayes and filed a federal lawsuit to stop Nashville’s extortionate law. 

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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.

The problem is, that if Nashville wants sidewalks, then Nashville needs to pay for them. It 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.

 

Case Status

Won

Court

Sixth Circuit Court of Appeals

Why This Matters

“It makes no sense to demand sidewalks in exchange for a building permit. It is also unconstitutional,” Braden Boucek, SLF director of litigation explains. “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.”

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. SLF attorney Cece O’Leary explains, “This is significant because they are not adding density to Nashville or increasing pedestrian traffic and the demand for infrastructure.”

Kimberly Hermann, SLF general counsel, discusses the lawsuit and states, “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.”

Nashville has been warned, encouraged to address legal takings issues, and offered solutions to change its ordinance that clearly violate fundamental constitutional private property rights under the U.S. and Tennessee Constitutions and state law,” said Hermann continues. “They refused to do so, and we have joined with The Beacon Center of Tennessee to challenge this illegal government action.”

Why This Matters

“It makes no sense to demand sidewalks in exchange for a building permit. It is also unconstitutional,” Braden Boucek, SLF director of litigation explains. “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.”

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. SLF attorney Cece O’Leary explains, “This is significant because they are not adding density to Nashville or increasing pedestrian traffic and the demand for infrastructure.”

Kimberly Hermann, SLF general counsel, discusses the lawsuit and states, “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.”

Nashville has been warned, encouraged to address legal takings issues, and offered solutions to change its ordinance that clearly violate fundamental constitutional private property rights under the U.S. and Tennessee Constitutions and state law,” said Hermann continues. “They refused to do so, and we have joined with The Beacon Center of Tennessee to challenge this illegal government action.”

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