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Broken Sidewalks Build Pathways to Controversy

The Atlanta Department of Public Works sent a series of letters sent to Ormewood Park residents in recent days regarding broken sidewalks it says they are responsible for paying to repair.

ORMEWOOD PARK — Following a 2012 complaint of a disabled man who reported difficulty in traversing parts of Delaware Avenue in his wheelchair, the Department of Public Works sent 26 certified letters to homeowners that order them to repair cracked sidewalks and driveways.

If they don't repair the sidewalks and driveway curb cuts that are uneven, cracked or broken, the city will fix them, and then charge the homeowner.

It's the first step in a larger crackdown that public works officials plan for the entire city.

The move has renewed a longstanding debate over just whose responsibility it is to pay for sidewalk repairs: Public works officials say it rests squarely with the property owner. But homeowners and at least one pedestrian safety advocacy group says its a shared responsibility, therefore the city should pay.

Some city leaders say they agree it's the local government's job to pay. But they add there's no money to pay to repair a backlog of broken sidewalks with a total price tag of $150 million according to one estimate and $250 million based on another.

At the center of it all are homeowners like Lee Jessen of Ormewood Park who received one of the certified letters.

"I'm not anti-City of Atlanta and I believe in maintaining sidewalks, but it was a shock to suddenly have a large expense due within the next month," Jessen told East Atlanta Patch.

The letter she received said she'd have to pay $846 for the sidewalk and $1,600 for the driveway. By her estimation, that's about $3.90 per square foot for the sidewalk and $5.24 per square foot for the driveway.

While she and the other property owners have 45 days to complete all work, they only have 15 days from the date of the letter to inform the city if they agree with the public works department's estimate and let it hire the contractor or find their own.

In Jessen's case, she has to let the city know by Feb. 15.

"I believe these improvements will improve curb appeal, but I'm confused and shocked at the way this information is being communicated and the lack of city support," Jessen said, adding such repairs might be tax deductable.

"I am sad that my city chooses to pay for stadiums over sidewalks," she continued, referring to a proposed bond issuance that could have Atlanta taxpayers on the hook to guarantee up to up to $300 million to pay for a $1 billion new stadium Atlanta Falcons owner Arthur Blank wants built.

The Atlanta Public Works Department says its sidewalk maintenance team will meet with affected homeowners to answer questions, though a date has not yet been set.

Who Foots Sidewalk Bill?

Public Works officials say the Atlanta city code is explicit: Property owners must pay for sidewalk repairs:

Sec. 138-14. - Maintenance of sidewalk area.

(d) Damaged sidewalk abutting the right-of-way. When the sidewalk abutting the right-of-way is damaged, it is the obligation of the abutting property owner to repair such sidewalk upon notice from the department of public works. If after receiving such notice, the abutting property owner fails to repair the sidewalk within a reasonable time, the department of public works is authorized to make such repairs and assess the abutting property owner for costs incurred.

“Per the City Code, sidewalk repair is the responsibility of the abutting property owner,” Valerie Bell-Smith, the public works department’s spokeswoman told Patch.

“If the city does the work, it is being done to address a safety hazard and the property owner is subject to receive an invoice for the work done.”

Residents do have the right to appeal the department's findings, she said.

While the crackdown is on Delaware Avenue and residents on adjoining streets will receive similar notices in coming weeks, Bell-Smith said the department is reviewing sidewalks all over the city.

Among other streets in focus in the city are commercial portions of Howell Mill Road in Home Park, she said.

"We started this off in Ormewood Park because that was one of the biggest ones," Bell-Smith said.

The trigger for that was twofold — Delaware Avenue was resurfaced last year. As a result, the curbs at intersections had to be in compliance with the federal Americans with Disabilities Act. The ADA mandates accessibility for those with physical handicaps.

But the curb cuts, which cost $140,000, were something of a half-win. While the curb cuts at the crosswalks made Delaware compliant, the sidewalks themselves weren't.

That led to Ormewood Park resident Ben Leak reaching out to 11 Alive news to share his frustrations.

"He contacted the news media and that put the city on notice that there were sidewalks in disrepair," Bell-Smith said.

"It's really to people's benefit to make sure that the sidewalks are up to code in front of their homes."

But who should pay for it is the question.

In some cases, it seems the city has paid for sidewalk repairs.

“Several sidewalks on our street have already been repaired by the city,” said Rebecca Landel-Hernandez, another Ormewood Park resident who received one of the letters.

"At least one I know of where the owner was not charged. This seems to be highly prejudicial. There are some people who have very good sidewalks which have obviously been done by the homeowners and yet they are being assessed for a new sidewalk."

Atlanta City Councilwoman Carla Smith, whose District 1 includes Ormewood Park, has fielded numerous calls in the wake of the letters.

Smith, who formed a sidewalk task force with District 5 Councilwoman Natalyn Archibong last year to look at the repair issues and come up with solutions, said in a perfect world, the city would pay for the sidewalk repairs.

The city doesn't have the money to pay for it and changing the legislation to put the onus on the municipal government won't help either, she said.

"If we were to change the legislation, that would mean immediately, the city would have to go out and fix the sidewalks," Smith said. "There's no easy solution."

Indeed, the city's streetscape is a mishmash of sorts that reflect different styles and annexations over the years. Some neighborhoods have poured concrete, others bricks and still others hexagonal pavers.

And of course, there are parts of some neighborhoods, such as Lake Claire, that don't have sidewalks at all.

"The city inherited whatever was there," Smith said, adding she's been pushing for public works officials to meet with affected residents.

Sally Flocks, president and chief executive of PEDS, an advocacy group for pedestrian safety and rights, said the city should repair the sidewalks, not kick it back to property owners.

"I think that is a really bad way for paying for sidewalk repairs," Flocks said. "The city needs to come up with a system that's more fair."

The city streets are maintained by the municipal government, so the sidewalks should be, too, she said.

"The property owners are not responsible to pay for potholes," said Flocks, who also is a member of the task force Smith and Archibong formed. "For pedestrians, the sidewalks are the road, they are their network."

Do It Yourself?

The city did have Quality of Life bonds that were used to tackle the backlog of needed infrastructure improvements.

But that ended last year.

The city is considering a new bond referendum — something Smith, Archibong and Kwanza Hall, who represents District 2, all say they would support.

Hall, whose district includes Old Fourth Ward and Inman Park, pushed legislation in 2011 that created a Sidewalk Trust Fund.

The idea is when the city makes repairs to sidewalks on private property, the money goes into the "lock-box" that is the trust fund.

The goal was that over time, the trust fund would generate enough funding that could be directed to additional sidewalk improvements. But it wasn't intended to fully fund all sidewalk improvements.

"We don’t have all this extra cash from the property taxes," Hall said, adding some 22 cents of every dollar generated from property taxes goes to the city, the smallest share of a three-sliced pie. The bulk of tax money goes to the Atlanta Public Schools and then the county.

"It's not like there's a whole lot of extra money," Hall said. "The way to solve the problem is to look at creating another quality of life bond issuance."

Meanwhile, different areas of the city have tried to get other sources of funding or just do it themselves.

The Boulevard corridor, which runs through Old Fourth Ward, secured $1.25 million from the Atlanta Regional Commission to pay for a sidewalk improvement project that begins this year.

Midtown and Downtown created their own commercial tax improvement districts in their business corridors to pay for sidewalks that needed repair.

Even residential neighborhoods are looking to address their issues directly.

"We are investigating funding repairs of sidewalks along our main thoroughfares, Oakdale and McClendon, because we think it’s potentially a good use of our resources given that the city won’t invest in them," said Steve Cardwell, president of the Candler Park Neighborhood Organization.

"The future of our sidewalks will be something that we work define as part of our master planning exercise."

Some Ormewood Park residents who received the letters are considering whether or not to do the same and hire a single contractor to do the repairs on Delaware.

Archibong, whose district includes Lake Claire, Kirkwood and East Atlanta, said she hopes the task force will come up with a list of best practices culled from around the country that might work here.

Smith said one promising solution is installing rubber sidewalks to address problems of shifting streets and pathways caused by tree roots.

The city of Santa Monica, Calif. was among the first municipalities in the United States to use them.

The task force also will look at the city's own processes to see how much of the municipal red tape can be streamlined.

"My personal position is the city needs to find the money to do it," Archibong said. "Finding the money is going to be the 5,000 pound gorilla in the room."

Until then, she said she's afraid the city, and ultimately, the taxpayers, will be at risk for personal injury lawsuits.

Last year, Alex Jenkins, who is blind, obtained a $3 million settlement with the city following injuries he suffered in 2008 when he fell over pieces of broken sidewalk in front of his East Lake home.

Jenkins had complained to city officials for years about the problem, including to Archibong, his councilwoman, who, in turn, pushed the public works department to fix it.

But the repairs weren't made until after Jenkins was injured and sued the city.

"We paid $3 million," Archibong said, "for something that would have cost $2,000 or $3,000 to fix."

Sally Flocks February 08, 2013 at 09:22 PM
This also seems like a good case for a pro bono attorney to take on. Is selective enforcement legal or illegal? And can cities delegate the financial cost of repairs to the public right of way to abutting property owners in states where neither the state code nor the state constitution authorize them to do so?
Some Guy February 08, 2013 at 10:09 PM
Mine will be repaired with a tiller and sod if I get such an asinine letter.
PLD February 09, 2013 at 01:57 PM
While the 300 million would be paid from the Hotel/Motel tax, there is another estimated 200 million for infrastructure improvement for a new stadium that would be paid directly by City of Atlanta residents - new roads for a stadium while our own streets go unpaved.
Chuck February 09, 2013 at 02:22 PM
so... the City Code says, "When the sidewalk abutting the right-of-way is damaged..." "Abut" means "Be next to or have a common boundary with" Most sidewalks in the city don't abut the right-of-way... they lie within the right-of-way. I suspect these Ormewood Park sidewalks also lie within the right-of-way. A sidewalk that abuts the right-of-way would lie outside of the right-of-way (in someone's private property), but touching it. I'm not a lawyer.
Jason in GP February 09, 2013 at 03:57 PM
So there's been no complaints ever in any other neighborhood in the city? Ormewood Park is the only 'hood with bad sidewalks? This selective/random/arbitrary enforcement reminds me of the once every year or so Park Atlanta swings through my quiet neck of the woods and writes thousands of dollars worth of pointless (aside from being a money grab) tickets. And, add in that SE Atlanta has received less investment by the city than any other area, it stinks. But, yeah, it is my responsibility to maintain my sidewalk - I just wouldn't want to be given a 45 day ultimatum to do it.
Scott February 09, 2013 at 09:32 PM
I am one of the residents to whom the notice was sent. The sidewalk abutting my house is composed hexagonal poured concrete sections, none of which is broken or damaged in any way. There is, however, an accumulation of gravel built up as a result of past torrential rainfall that has washed gravel from nearby Ayr Place, a GRAVEL-PAVED road. While I fully understand the need for wheelchair accessibility on city sidewalks, I don't believe that I should have to pay $1100 for something that can be fixed with a wheelbarrow and a shovel. Furthermore, although the city wasted money in actually installing the yellow-colored curbs to access the ~13 feet of uneven gravel road, I wonder who is going to have to pay to pave the road to bring it in compliance?
Ken Boff February 10, 2013 at 03:32 PM
The sidewalks in front of my house are in surprisingly good condition. They are pea-gravel concrete, not the hex pavers that cause so many problems. One damaged section was replaced with poured concrete and is smooth and safe. I can't see how $4000 of repairs and improvements, as stated in the letter I received, would improve the condition of my sidewalks at all. What criteria were used to evaluate the sidewalks needing repair/improvement?
Atlanta Lawyer February 10, 2013 at 04:37 PM
Seems potentially unconstitutional to me, though I have not researched the case law. If anyone would want to be a plaintiff, speak up. I would probably do it pro bono, if it is clearly unconstitutional. Probably would bring it as a class action, which would scare the crap out of the City if it is not legal. There is probably a Georgia case on point, saying either this is or is not constitutional. On its face, it would appear to violate the tax uniformity clause of the Georgia Constitution. But again, actual legal research is required.
Scott February 10, 2013 at 05:51 PM
I'd be happy to be plaintiff, especially given the fact that the pre-dated letter, January 31st, was postmarked on the 5th of February and arrived sometime on the 6th or 7th, giving me exactly 5-6 business days to make a decision as to whether to pay the city or to get a contractor (and still pay the city $40.00 for a permit). It feels like government extortion.
Sally Flocks February 10, 2013 at 07:44 PM
The Atlanta City Council's Sidewalk Task Force is meeting on Thursday, Feb 14 from 5:30 - 7:00 PM in one of the committee rooms at City Hall. The two subcommittee chairs, myself included, will make presentations. The subcommittee I chair is charged with identifying best practices and recommending policy changes and appropriate funding mechanisms. I intend to include quotes from some of the comments above and encourage property owners who received letters from Public Works regarding damaged sidewalks to attend. As President of PEDS, I am eager for Atlanta's sidewalks to be repaired. Yet sidewalks are public assets, just like the streets. Repairs to each should be paid for with taxpayer dollars, not by extracting payments on short notice from abutting property owners. Atlanta has a high poverty rate -- which means a program relying on such payments is doomed to failure. I'm glad to hear an attorney is considering acting on this.
Scott February 10, 2013 at 09:03 PM
This would be a great start, but keep in mind that the meeting is a day before the "decisions" are due back to the City of Atlanta, and will likely not delay the deadline for the letter recipients unless some kind of temporary legal decision is put into place that will allow us buy more time.
Atlanta Lawyer February 11, 2013 at 12:01 AM
Scott, Send me your contact info and a copy of the City's letter to jfwoodham@gmail.com.
FamilyOfFour February 11, 2013 at 01:08 AM
Most cities require the homeowner to maintain the sidewalks outside their homes. Especially clearing snow and homeowners are liable if someone slips and falls dure to non removal of snow/ice, etc. But cities planted trees who's roots ruin sidewalks AND the city doesn't want you to remove the trees either. Did you know that over 100 cities are implementing rubber sidewalk programs. Rubber pavers are made from recycled tires. In 2008 a “new” version of this sidewalk technology was introduced which recycles both tire rubber and plastic. Just a thought. :)
Sally Flocks February 11, 2013 at 02:58 AM
Sec. 138-103 of the City Code gives Public Works the authority "to inspect the sidewalks along public right-of-way, to see that the sidewalks thereon are in a safe and suitable condition for public use and travel, to condemn promptly pavements on such sidewalks that are unsafe or unsuitable for public travel, and to cause repairs to be made in accordance with city law and to charge the cost of the repair to the abutting property owner."
MH February 11, 2013 at 02:56 PM
Anyone else wondering how a homeowner can be legally responsible for the maintenance of a sidewalk in front of his property, and then win a $3 million settlement from the city for tripping over it when it wasn't maintained?
Edjuardo Julio February 11, 2013 at 03:23 PM
What is so frustrating is that there are so many blocks around Delaware where the city repaired the sidewalk at no cost to the residents. It is selective billing and that is simply unfair.
Atlanta Lawyer February 13, 2013 at 07:14 AM
OK, I am not giving anyone in particular legal advice, nor is this comment intended to, nor shall it create, an attorney-client relationship, whether express or implied. Assuming the sidewalks are located within the city right-of-way, which they are in virtually all older neighborhoods in the city, this ordinance does not apply. The ordinance in question only addresses itself to sidewalks which are located outside the public right-of-way, meaning sidewalks which are located on private property. My guess is that none of you has a sidewalk located on your private property. If the city was going to do work on your private property and then bill you for it, they would first have to at least get a temporary construction easement from you in order to come onto your property. Otherwise, that is something commonly known as "trespass". The fact that the city is not requesting temporary construction easements very strongly indicates the sidewalks are all located in the right-of-way (the city does not need an easement to access its own property). If I received this letter from the city, I would respond in writing telling the city to go pound sand, and if you the city file a lien against my property, I will sue you for slander of title. You folks who have surveys from when you purchased your homes, get them out and see if the sidewalk in question is actually located within the depiction of your property lines. If not, I would include a copy of that survey with my letter to the city.
Atlanta Lawyer February 13, 2013 at 07:18 AM
If anyone wants me to write a letter on their behalf let me know. I would need a copy of the letter the city sent to you, and ideally, a copy of your survey if you have one. jfwoodham@gmail.com
Sally Flocks February 13, 2013 at 12:36 PM
Please explain why Sec. 138-103 of the City Code, which gives Public Works the authority "to inspect the sidewalks along public right-of-way, . . . to condemn promptly pavements on such sidewalks that are unsafe or unsuitable for public travel, and to cause repairs to be made in accordance with city law and to charge the cost of the repair to the abutting property owner" doesn't apply to sidewalks within the right of way. The City has similar ordinances for sidewalks in the right of way and sidewalks abutting the ROW.
Atlanta Lawyer February 13, 2013 at 12:56 PM
Sally, I am not giving legal advice here, but the plain language of the ordinance speaks for itself. First of all, "along" the right of way does not mean "within" the right of way. "Along" is another way of referring to "abut". More importantly, the following language is dispositive on this issue: "to condemn promptly pavements on such sidewalks that are unsafe or unsuitable for public travel, . . . .". The city does not "condemn" its own property. The city condemns private property for public purposes. The reference to condemnation in the ordinance can only refer to private property, and therefore this condemnation reference simply ends the discussion. Case closed. The city is trying to screw these people with an ordinance that plainly does does not permit this BS.
Atlanta Lawyer February 13, 2013 at 01:09 PM
In addition: "and to cause repairs to be made in accordance with city law" refers back to Sec. 138-14(d). The phrase "in accordance with city law" means that Sec 138-103 must yield to the city law provision of Sec 138-14(d), which clearly refers only to sidewalks on private property, thus not referring to sidewalks in the right-of-way. Sec. 138-14(d) is the controlling provision, which guides the application of Sec. 138-103.
Jarod Apperson February 13, 2013 at 01:18 PM
@Atlanta Lawyer - True or False: You are leading an effort to invalidate the Beltline's TAD? http://www.atlantaprogressivenews.com/interspire/news/2012/07/11/lawsuits-challenge-beltline-incs-existence-beltline-tad-and-perrybolton-tad.html True or False: You were sanctioned by a superior court judge for "unethical...and possibly illegal" conduct? http://www.bizjournals.com/atlanta/stories/2009/06/29/daily64.html
Atlanta Lawyer February 13, 2013 at 02:20 PM
Jarod, You sound like an obvious BeltLine Nazi. True or false? I love you BeltLine Nazis who are OK with the City's unconstitutional use of other people's money to build you a bike path, but when the city comes after you for sidewalk money, you cry like a baby. You can't have it both ways buddy. You either are against the city's perpetual violations of various laws, or you endorse all the violations. You can't pick and choose the violations that suit you. I already "invalidated" the BeltLine TAD in 2008. By the way, I body slammed it again just last week on February 4, 2013, once again at oral argument before the Supreme Court of Georgia. Here is a replay of that oral argument for your pleasure, just so you can see it going down in flames once again. You see how Justice Nahmias surgically dissects former Chief Justice Norman Fletcher. Classic stuff. http://www.gasupreme.us/media/oa/020413-S13A0333.php
Atlanta Lawyer February 13, 2013 at 02:23 PM
Jarod, I also destroyed the Atlanta Development Authority's and the Development Authority of Fulton County's respective "phantom" bond/developer subsidy programs at oral argument at the Supreme Court in 2010. Here is a replay of that for your pleasure: http://multimedia.dailyreportonline.com/2010/05/video-john-woodham-in-sherman-v-fulton-county/ I could write a Grishom type novel on the Michael Johnson affair and Shirley Franklin's involvement, but it would not be fiction. Let's just say that good ol' Shirley Girl and Kasim have done about everything possible to stop me from beating their ass at the Georgia Supreme Court and killing their legacy projects, but all their attempts have failed. Kasim's $300 subsidy to Arthur Blank's new stadium is the one I am taking down next. I guess you support that stadium project because you support the BeltLine. No difference between the two. Both are illegal and unconstitutional use of taxpayer money. Cheers.
Jarod Apperson February 13, 2013 at 02:36 PM
I wouldn't describe myself as a Beltline Nazi, but I do support the project. I may be wrong, but my impression is that you are filing all of your lawsuits because you don't believe in any projects being funded by the government. I happen to disagree with that view and believe that local government has an important role to play in managing public goods such as sidewalks and the Beltline. In fact, I would like to see Atlana fund sidewalk repairs and maintenance through a tax system. I do think it is important for any action taken by the city to be legal, so I appreciate your work in that respect. But ultimately, I think I probably disagree with you on what role our government should play in managing the city's public goods.
Péralte Paul (Editor) February 13, 2013 at 02:44 PM
Thanks, Jarod.
FamilyOfFour February 13, 2013 at 03:18 PM
I see the stadium as a private location that you have to pay to use. As well as lots of people making tons of money off of using it. Unlike the beltline that anyone can use for free. It also increases our home values and decreases traffic saving me money in the long run. I support taxes being used to group into a large pot to fund large projects that everyone can benefit from, not just a select few. Anyone can go for a walk or bike ride. Very few people can attend a football game. Am I missing something?
Jarod Apperson February 13, 2013 at 08:42 PM
@FamilyOfFour - that seems logical to me. I agree that there is a big difference in funding infrastructure (sidewalks, transit, roads) vs. a stadium. I'm not at all excited for us to spend any public money on this thing. I do think that the Georgia Dome brings in tourism, which is why it makes some sense to fund it with a motel tax, but from what the AJC is reporting, the other people hosting events at the Dome are happy with its quality. http://www.ajc.com/news/news/local/repair-costs-aging-dome-disputed/nWNLk/
Denise d February 19, 2013 at 01:46 PM
I work for a company that repairs sidewalks and driveways. I saw the price someone had quoted above and we can beat that. We don't try to break our customers banks to make a buck. If anyone is interested our website is summit cd.com go check us out. I hate that this is going on and I hate when contractors try to tAke advantage of situations.
Kelly Daugherty December 11, 2013 at 01:27 PM
Take a look at www.correctyourconcrete.com

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