Ashlee Urry is worried as each day passes without hearing any news. She is one of many homeowners that is expecting to receive notice from the City of Harrisville letting them know they have to fix broken sidewalks in front of their home and take care of the trees that caused the damage. “It’s stressful,” Urry said, not knowing if their sidewalk is bad enough to be cited, or how much it will cost to fix it if they are.
Public Works Director, Gene Bingham, explained that under state code, the City is responsible for making sure all sidewalks are easily accessible to persons with disabilities, and school walking routes are clear and safe. Damaged sidewalks bring the City into noncompliance and causes liability if someone gets hurt. These damages range from small rises to cracked concrete to large displacements of sidewalks.
Harrisville, like most cities, have a public maintenance program to maintain and repair damages to City property including streets, gutters, and sidewalks. However, under Title 17 of Utah State Code, cities may require property owners to assume responsibility for the care and maintenance of city property when these areas border private property. This is often referred to as premises liability.
The idea of residents caring for public property is not a foreign practice, and the majority of cities throughout the United States have some form of requirement for its residents. Common maintenance measures most people participate in are mowing the grass in the parking strip, and clearing sidewalks from snow after a winter storm. If left undone, both of these could cause a safety hazard. Cities have the discretion to choose whether or not to require property owners to have this liability and to what extent.
The US Constitution originally only used the term “property” to ensure that taxes could not be unequally levied by Congress in order to give advantage to one state over another. Eventually amendments were adopted to provide protection to individuals from illegal search and seizure of their property, and require proper reimbursement for property seized by the government, or eminent domain.
Under the Constitution, no expressed powers have ever been given to a government that allows the enforcement of private property owners to care for public property. However, some argue that this right falls to the States since it was never expressly given to the federal government.
A quick search of the Utah Supreme Court rulings didn’t find a specific case where a city’s right to impose such liability was ever questioned. However, a 2007 case involving the City of Nephi placed liability on a property owner for planting trees in a parking strip that obstructed one driver’s vision resulting in a fatal crash.
For years, Harrisville has been warning residents of nuisance trees that have been planted too close to the sidewalk, particularly within parking strips, causing rising and cracking of curbing and sidewalks. Harrisville has a list of appropriate trees for these areas that have root systems that tend to grow deep rather than on the surface. These trees also don’t grow as full to cause vision obstructions to drivers. This list is included with new resident packets from the City, available on the City’s website and at the City Building.
Last year, someone was hurt while walking on damaged sidewalks caused by stray tree roots. During talks with the City’s insurance company, Utah Local Government Trust, the Harrisville City Council decided that a formal ordinance needed to be adopted. The Council officially adopted changes to the Nuisance Vegetation Ordinance just last December.
Bingham pointed out that the “ordinance just brought everything in line with what the city had been doing all along.” Now with a formal ordinance, or City law, in place, this policy can be legally enforced with costly consequences.
City Code Inspector, Ken Martin, explained that as long as there is an enforceable ordinance on the books, if anyone were to get hurt because of damages sidewalks, the liability would belong to the homeowner and not the City. “If anyone were to file a report with the City because they got hurt, we would have to turn around and say, sorry, the property owner is responsible.”
Currently, Harrisville is focusing on heavily damaged sidewalks caused by trees growing too close to walkways. These trees will need to have roots cut back, or even be entirely removed. Certified arborist, Cory Maw, was asked to look at pictures of the most damaged areas and give his opinion to the City Council of what property owners should do with their trees. Maw estimated costs could range from $250 to $2500 or more. However, property owners are free to seek other opinions and estimates.
In addition to tree maintenance costs, portions of the sidewalk will also need to be repaired. Bingham said this would cost about $84 for one sidewalk slab to be ripped out and replaced. City Council members agreed to allow homeowners to use the City contractor and have sidewalk work done at the city price, a solution the Council hope will help save residents money.
Martin said that while currently the City is focusing on severely damaged sidewalks cause by trees, residents are responsible for the upkeep and repair of all sidewalks and curbing on their sidewalks regardless of how the damage occurred, including weather, vegetation and rot.
Sidewalks that do not border private property are still the responsibility of the City, however. Council Member Bruce Richins pointed out that there are damaged sidewalks along Hwy 89 during the July 9 City Council meeting. These sidewalks will be replaced by the City.
City administrator, Bill Morris, said technically residents have 10 days to comply once being notified of any compliance issues. Due to the heavy cost burden with both dealing with the trees and replacing sections of sidewalk, the City code enforcement inspector, Ken Martin, will work with residents on a case-by-case basis.
Martin explained that as each homeowner contacts him, he will meet with them individually to assess the damage and come up with a correction plan. This plan is then given to the City Council who will decide how to ultimately work with the resident.
For now, Urry and her family wait to see when they will eventually have to comply. “I just don’t know what’s going to happen, if it’s going to happen and it does cause some worry.”
