Builders who sued Nashville over sidewalk rules get refund. What about everyone else?
The Metro Nashville Council on Tuesday approved settlements for a handful of Nashville builders who sued the city over an ordinance requiring them to build a sidewalk or pay a fee. The ordinance was effectively struck down by a federal appeals court in May.
At the time of the court's ruling, it wasn't clear what it meant for other property owners who were affected by the ordinance, but now, some could be eligible for a refund of the money they spent to comply with it in the past 15 months.
The settlements approved Tuesday night were to property owners involved in a pair of lawsuits against the city. James Knight and Jason Mayes, who the appeals court ruled in favor of in May, received $224,343 in reimbursements and attorneys' fees. April Khoury, Old South Construction, Aspen Construction and MRB Developers, whose case was still pending but "unlikely to yield a positive outcome for Metro," received a total of $150,674 in reimbursements, interest and attorneys' fees.
Metro's website now includes a form for property owners to submit a claim for the cost of sidewalk construction or the fee they paid in lieu. Residents must meet a few qualifications for their claims to be considered, so not everyone who paid to comply with the ordinance since it was passed in 2017 will be getting their money back.
Metro's website says that the costs to comply with the ordinance must have been incurred on or after May 10, 2022, one year prior to the 6th U.S. Circuit Court of Appeals' ruling, for a claim to be considered.
The property owner must also be able to show that they sought a variance from the ordinance from the Board of Zoning Appeals or paid the in-lieu fee under protest. Metro Associate Director of Law Allison Bussell told The Tennessean it based its claim guidelines on their interpretation of applicable law.
Reimbursement of in-lieu fees will come from the In-Lieu Sidewalk Fund that the fees were paid into, Bussell said. The department is still in discussions about whether sidewalk building costs will come from the In-Lieu Sidewalk Fund or another source.
The Beacon Center, a Nashville political organization whose attorneys represented the plaintiffs, said the appeals court ruling was a "victory for property owners" in Tennessee. The group hoped Metro would offer eligibility for refunds to people who had been affected before 2022.
"I think it is disappointing that Metro has chosen not to extend the refund process to more individuals that have been affected by this unconstitutional law," said Beacon Center Legal Affairs Director Wen Fa.
Fa said he expects that Metro "might raise as a defense ... the statute of limitations," which would be one year if a claim was handled in court.
"We are still researching those issues," Fa said.
For decades, Nashville has invested little public money in sidewalks, placing pedestrians in growing danger as city streets grow busier. Last year, 49 pedestrians died, up from 39 in 2021. The city has determined it would need 1,900 miles of new sidewalks to address the problem, but it lacked the resources to build even 100 miles in 20 years.
The sidewalk ordinance was the Metro Council's way to speed up sidewalk construction in the city. It applied to anyone looking to build single-family or two-family homes in areas Metro deemed of "greatest need," and to those looking to develop or redevelop multi-family homes and nonresidential buildings.
Wesley Smith, policy and government relations manager for Walk Bike Nashville, said while the ordinance was imperfect, it was still able to deliver "miles and miles of sidewalks across our city that without that mechanism would not exist today."
Smith said he hopes that Nashville can convince the General Assembly to pass legislation allowing the city to charge impact fees to developers as a way to boost funding for sidewalk construction, something that has been attempted and failed in the past.
"Without a mechanism like impact fees that they have in Williamson County, ... it's really hard for Nashville to keep up its infrastructure," Smith said.
Evan Mealins is the justice reporter for The Tennessean. Contact him at emealins@gannett.com or follow him on Twitter @EvanMealins.
This article originally appeared on Nashville Tennessean: Nashville sidewalk settlement: What it means for other builders
