This is a special opinion to the Mirror by Diane D’Amico.
This opinion is based on a petition from the property owner at 640 Washington Avenue (corner of Fig Street and Washington Avenue) for relief from the strict application of Town Code Chapter 62, Section 62-4. The property owner did install a sidewalk along the lot frontage on Washington Avenue, which connects to the existing sidewalk ramp. Being a corner lot there is the requirement to install a sidewalk along the Fig Street lot frontage as well. The problem is that to construct the sidewalk to VDOT standards, it would be very close to the home while leaving a large swath of land next to Fig Street. See this story for more details.
The Council directed staff to contact legal counsel and begin researching the status of enabling legislation to support the Town Code section in question. Counsel conducted research and found the documents providing the state legislative basis for the local ordinance. At Thursday’s Regular Meeting, Town Council voted to compel the homeowner to construct the sidewalk. Below are Diane D’Amico’s opinion:
The ordinance which the owners seek relief is Town Code Chapter 62, Section 62-4 which states that the town council “may require and compel the owner of property within the town to construct or maintain sidewalks abutting on the property of such owner along existing streets” and that the town may “constitute a charge upon the property and the collection thereof may be enforced in the same manner as is provided by law for the enforcement of the collection of taxes on real estate in the town.”
The contention of the homeowners is that since the sidewalk is in the VDOT right of way it must be constructed to VDOT standards–but, VDOT wants them to tie the walks in line with the next available sidewalk:
Regarding Agenda item 7B Unfinished Business, Petition for Relief of Sidewalk Requirement regarding the Towns authority to compel property owners to install sidewalks.
Having studied the accompanying documents it is my opinion that the Town does NOT have that authority.
Section 170 of the 1902 Constitution of Virginia gives the Town the authority to tax or assess for sidewalks. It does not appear the Town took advantage of that authority.
Chapter 96 Acts of Assembly 1930 gives the Town unequivocal authority regarding property owners and sidewalks with the strong wording “empowered to compel”. This ordinance also adds the phrase “construct or maintain” to the tax and assess powers in Section 170. Thus, it seems in reading this Act that the Town is given the absolute power over both the installation and maintenance of sidewalks by property owners and has the authority also to tax and assess for those sidewalks.
However, the resulting Ordinance No. 144 of the 1930 Town Code does not take advantage of those powers. Rather than use
the word compel or shall instead it uses the word may, to wit, “that said Council may, through its Street Committee, or such other agency as it may time to time designate, require and compel any property owner …to construct and/or maintain sidewalks…”. The word may is not mandatory. So even though the words require and compel appear in this ordinance they do not carry the necessary weight because of the word may used earlier in the text.
Even if you would like to think in terms of “what did the Council intend” then you must deal with the absence of a Street Committee, lack of a designated agency, failure to prepare a prioritized sidewalk installation plan, non-enforcement of the sidewalk maintenance component, and frankly, the subjective enforcement of the ordinance over time. Both Chapter 96 and Ordinance No. 144 speak to the presence of an “emergency”. That emergency seems lost in time. Perhaps this ordinance was used to correct that emergency and then it became another law, unenforced and forgotten.
Now the Town is trying to compel a property owner to install a sidewalk along Fig Street as they have done to the rest of us who have built new homes. Upon their authority being questioned an attempt is made to find some enabling legislation to allow the Town to continue this practice. The legislation is not there. The subjective application of sidewalk installation needs to stop immediately and those who have been forced to put in new sidewalks should be reimbursed for that expenditure.