Citizens Asking for Concrete Answers on Sidewalks

20141019_142256Do you have an uneven sidewalk in front of your house? If you’re one of the residents who has resisted calls to repair it, you might want to mind a new law under consideration.

The Borough Council introduced an ordinance at the Oct. 21 council meeting that set specific rules about how uneven a walk can be before residents have to repair it. The new ordinance replaces a similar ordinance passed two years ago. In an order issued Sept. 12, state Superior Court Judge Travis Francis ruled that the previous ordinance was too vague to be enforced.

Borough officials hope to remedy that fault this time.The council voted unanimously to introduce the new updated ordinance. It is expected to receive a second reading and approval at the Borough Council’s Nov. 12 meeting. Although he joined his colleagues in supporting the measure, Councilman Philip George expressed reservations about the financial hardship the ordinance imposes particularly for particularly those residents on fixed incomes.

About 1,100 residents were cited under the previous ordinance. Most of those cited already have made the repairs, either privately or through a borough program that allowed them to use a borough-appointed contractor.

That program, now expired, was made possible by a municipal bond and allowed residents to pay for the repairs over a five-year period. Mr. George following the council meeting expressed a desire to see a similar program available in the spring; and municipal workers once again can assess the state of sidewalks in the borough.

“I’ve been advocating that we reopen it and look for grants,” Mr. George said. “I do want to see if there is money available for seniors who cannot afford it.”

The initial ordinance was prompted by complaints that sidewalks in the borough had become uneven and were falling into disrepair, creating unsafe conditions for pedestrians.

“We took that pretty seriously,” said Mayor Gayle Brill Mittler, who was on the Borough Council at the time the previous ordinance was approved. “We’re required to make our sidewalks safe for pedestrians.”

Under the ordinance, both past and anticipated, residents themselves must keep their sidewalks level and in a state of good repair, or risk being fined. And that is what is causing the trouble.

Borough officials argued that state statute assigns homeowners the task of maintaining their sidewalks. Residents who filed a lawsuit over the previous ordinance contend that taking care of the sidewalks is a job for the borough, not for homeowners.

“The whole point of the lawsuit is that the residents do not own the sidewalks, and most of the damage was caused by trees that the borough owns. That’s what we’re fighting,” said Pat Iurilli of Benner Street, one of the four residents signed to the lawsuit.

But according to Edward Purcell, associate counsel with the New Jersey State League of Municipalities, residents throughout the state do own the sidewalks on their property, and need to take care of them the same as any other part of their property.

“I’m not aware where that is not the case,” said Mr. Purcell.

The court ruling did not address the broader issue of the borough’s authority to require residents to maintain their sidewalks at the resident’s expense. The ruling was just focused on the adequacy of the borough’s standard for determining a sidewalk to be deficient. Once the revised sidewalk ordinance is adopted the borough’s sidewalk program should be in compliance with Judge Francis’ order.

Public-use sidewalks are made possible when a municipality acquires an easement for the affected property. That easement also allows power companies to erect utility poles, and the water and sewerage utilities to lay pipes, among other uses.

With the easement in place, the municipality installs the sidewalk, and then sends a bill to the owner of the property on which the sidewalk is located. If the owner fails to pay, the municipality may impose a tax lien on the property, which ultimately would be incorporated into the mortgage of the next person to buy the property.

Not so fast, according to Mark Oshinskie. An attorney living on Wayne Street, Mr. Oshinskie argued the suit that led to Judge Francis’ ruling.

Even if one were to accept the argument that the sidewalks are the responsibility of residents to maintain, that responsibility is not absolute. If a vandal is caught breaking windows, the vandal is the one liable for the cost of new windows, not the property owner.

In the same way, Mr. Oshinskie argued, because the sidewalks have been lifted by roots of trees that the borough owns, planted and maintains, it is the responsibility of the borough to pay for sidewalk repairs.

“It’s only become bad in the town’s eyes because of the town’s trees,” said Mr. Oshinskie. “Fundamentally they could put some numbers in there to make it more specific, but the problem is that 95 percent of the sidewalks that are raised or damaged, were damaged by municipal-owned trees.”

The issue probably won’t be settled with the passage of the new ordinance, but for the borough at least there is nothing to argue.

“It’s irrelevant what causes the problem,” said Borough Attorney Ed Schmierer. “If you have a dangerous sidewalk, you have to fix it.”


One thought on “Citizens Asking for Concrete Answers on Sidewalks

  1. The issue that bothers me is the $75 we had to pay for a permit to fix our sidewalk that cracked because of a tree that the Borough planted. This was on top of the $200 plus per sidewalk square! We believe in sidewalk safety, so we complied right away. We were shocked that we needed to get a permit in order to complete the process.