December 10, 2008
Dear Sir:
Your question is: Under its regional planning authority, can the City’s Regional Planning
Commission require a developer to build sidewalks in addition to streets in a development
outside the city?
The Municipal Code, Article I, '' 78-26-31, reflects that the city has a regional planning
commission. As Article I, ' 78-31 itself points out:
The regional planning commission shall have the powers, duties
and responsibilities set forth in T.C.A.'' 13-3-101B13-3-105, 133-201B13-3-203, 13-3-301C13-3-303, 13-3-401B13-4-105, 13-4301B13-4-309 and 13-7-201B13-7210.
I am working under a handicap on this question because while I have the city’s zoning
ordinance, I do not have its subdivision regulations. But I will assume that it contains regulations
governing standards and procedures for the acceptance of roads and streets. I will address the
state law that might have a bearing on your question.
There is no language in the general law governing either municipal planning or regional
planning that addresses the question of whether subdivision regulations can require that
developers build sidewalks, it seems abundantly clear that municipal and regional planning
commission subdivision regulations can require developers to construct roads and streets. In
Foley v. Hamilton, 659 S.W.2d 356 (Tenn. 1983), the Tennessee Supreme Court took great pains
to lay out the state statutes that govern regional planning commissions’ subdivision regulations,
and the part roads play in those regulations. The court itself stated the facts and the law that
applied to them:
The facts adduced at trial reveal that the subdivision in question
was developed in 1973 by Hamilton and Roberts, d/b/a HamiltonRoberts Development Co., and although not located within the
corporate limits of the City of Gatlinburg, said subdivision was
within five miles of the city and thus within the territorial
jurisdiction of the Gatlinburg Regional Planning Commission
pursuant to T.C.A. ' 13-3-102. Therefore, pursuant the
Commission’s authority under T.C.A. ' 13-3-403, the subdivision
had to conform with the Commissions subdivision regulations,
[emphasis is mine] enacted in January, 1973, and a plat of the
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subdivision had to be approved by the Commission before said plat
could be recorded and lots therein offered for sale by the
developers. [At 357]
Of course, the subdivision regulations required that roads be built to a certain standard.
The court outlined the statutes governing subdivision regulations, and declared that “The
common thread running through this legislative system is protection of the public, guaranteeing
that adequate streets will be provided when property is subdivided.” [360]
If under Foley a regional planning commission’s subdivision regulations can include a
requirement that a developer build roads or streets in his development, does such authority
extend to sidewalks. I have found no case directly on this question, but in the very recent
unreported case of Jenkins v. Southland Capital Corporation, 2008 WL 4335076 (Tenn. Ct.
App.), one of the grounds raised by the plaintiff in attempting to recover damages for deaths and
personal injuries was that the defendant had not constructed the sidewalks along a certain road,
as required by the Shelby County/Memphis Subdivision Regulations. Apparently, no issue was
raised about the right of those governments to enact sidewalk requirements in those regulations,
although the case was resolved on statute of limitation grounds.
I assume that the subdivision regulations in at least several cities contain sidewalk
construction requirements. But apparently the subdivision regulations in your City do not. The
question that appears to follow is whether sidewalks are a part of roads and streets. Surprisingly,
I can find no cases on that question with respect to roads, but the answer is generally and
specifically yes with respect to streets.
Tennessee Code Annotated, ' 13-3-401 defines “Road” or “roads” as “means, relates to
and includes roads, streets, highways, avenues, boulevards, parkways, lanes or other ways or any
part thereof.” [Emphasis is mine.]
It is said in 10A McQuillin, Municipal Corporations, ' 30.111 (3rd ed.) that:
Street in its broad and general sense includes sidewalk, that is, a
sidewalk is part of, and included within the term street.
Furthermore, a street used only by pedestrians is nevertheless a
public highway, and a street within the legal meaning of that term.
So in statutes and ordinances the term “street” is construed to
include sidewalks unless the language with which it is associated
changes or restricts its signification....
The law in Tennessee is the same: a sidewalk is a part of a street or roadway, and a city
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has the authority to determine what kind of transportation is allowed (and presumably required) in
the street or road easement, including pedestrian traffic via. sidewalks.
Tennessee Code Annotated, ' 55-8-101 et seq. contains the Rules of the Road for
the operation of motor vehicles in Tennessee, and defines both “street” and “highway” as “the
entire width between boundary lines of every way when a part thereof is open to the use of the
public for purposes of vehicular traffic.” [Subsections (22) and (61)] In addition, it defines
“sidewalk” as that portion of a street between the curb lines, or the lateral lines of a roadway, and
the adjacent property lines, intended for the use of pedestrians. [Subsection (56)]
In Blackburn v. Dillon, 225 S.W.2d 46 (Tenn. 1946), it was held that municipalities have
the discretion as to what forms of public travel are permissible within the right-of-way. In that
case, the width of the street easement was clearly 40 feet, and the only question was whether the
city had the authority to authorize a sidewalk within that easement as a form of public travel. The
court held that the answer was yes, which also declared that A[t]he term street in ordinary legal
signification includes all parts of the way, roadway, gutters and sidewalks [Citing Elliot on Roads
and Streets 4th ed.), ' 23, p.25. [At 47]
It stands to reason that if the city could construct a sidewalk as part of the street, and could
require developers to build “streets” it could require developers to build sidewalks, they being a
part of a streets.
It is also said in City of Memphis v. Hood, 345 S.W.2d 887 (Tenn. 1961), with respect to a
person who was unhappy with the fact that the city was going to build a sidewalk on part of the
land he had dedicated to the city for a street, that:
The fact that this disputed strip is now going to be only half used as
a street and the other for sidewalks and things of that kind is all in
sense part of the widening of the street, even
though this particular thing , the way it is now done, was not in the
minds of the parties at the time they dedicated it.... [At 893]
That is the best case I can make at the moment for the proposition that subdivision
regulations can require the construction of sidewalks as a part of a road or a street. The law
governing city streets as opposed to county roads probably supports that proposition better as to
city streets than it does as to county roads. But an argument can be made that roads and streets are
the same thing for the purposes of sidewalks being a part of them.
I am prepared to spend much more time on this question, but I understand that you needed
something on this question right away. But I am not sure that additional research on it will
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produce a better answer.
Sincerely,
Sidney D. Hemsley
Senior Law Consultant
SDH/