MEMORANDUM
FROM:
Sid Hemsley, Senior Law Consultant
DATE:
December 5, 2001
RE:
Slum Clearance Ordinance
When I got your e-mail on the question of whether a city could require the
demolition of dangerous structures, I knew that if your city had an MTAS-prepared
code, it probably had the slum clearance ordinance. For that reason, your later
discovery of that ordinance caused no problems.
Under that ordinance, the city does have the authority to require the demolition of
dangerous “dwellings” used or intended to be used for human habitation, and to
demolish such dwellings itself. That ordinance was passed under the authority of
Tennessee Code Annotated, title 13, chapter 21. A similar ordinance was upheld by
the Tennessee Supreme Court in Winters v. Sawyer, 463 S.W.2d 705 (1971).
It needs to be noted here that the city can expand the application of that
ordinance. Tennessee Code Annotated, title 13, chapter 21, now authorizes a
municipality to pass a slum clearance ordinance that applies to “structures.” The term
“structures” is defined to include “any dwelling or place of public accommodation or
vacant building or structure suitable as a dwelling or place of public accommodation.”
[Tennessee Code Annotated, '13-21-101(9)] Municipalities are authorized by the same
statutes to provide by ordinance for the demolition of “structures” that meet the
qualifications for demolition under that ordinance. [Tennessee Code Annotated, ' 1321-102] I am enclosing an updated version of the slum clearance ordinance from the
MTAS sample municipal code.
Dangerous buildings can also be demolished through the Standard Building
Code and the Unsafe Building Abatement Code, and, alternatively, through the BOCA
National Property and Maintenance Code. I will not go into detail on those ways
because a municipal lien against property for the recovery of the cost of demolition by
the municipality probably requires authorization by statute. Tennessee Code
Annotated, title 13, chapter 21, provides such authorization. While the BOCA Code
provides for such a lien, the lien must be authorized by statute. For that reason, MTAS
recommends the use of the slum clearance ordinance for the demolition of dangerous
buildings.
Finally, the fire marshal can in some cases order the demolition of dangerous
buildings that constitute a fire hazard, under Tennessee Code Annotated, ' 68-102-117.
There appears no limitation on the kind of buildings covered by that statute. That
statute also provides for certain criminal penalties, and for the recovery against the
owner for the cost of the demolition.
The demolition of a building under any statute or ordinance should be
approached by the city with caution, and near certainty that the building is dangerous
within the necessary level to satisfy a court. In Winters v. Sawyer, above, the Court
upheld the validity of the ordinance providing for demolition of buildings after notice and
hearing, and subject to judicial review, but warned that it “...will again reiterate the
statement of Mr. Justice Green in Jackson v. Bell, supra, that such statute or ordinance
should be administered with caution.” The Court went on to note that the order of
demolition in that case involved five buildings, “four of which, among other things, are
shown to be fire hazards due to inadequate electrical wiring. The fifth dwelling is shown
to be in very dilapidated condition.” The cautionary note applies to any statute or
ordinance under which a building is subject to demolition. It has been pointed out that
one of the greatest potential liabilities of municipalities in the codes enforcement area is
the demolition of dangerous structures, and that there are many lawsuits in this area.
[Banks, Marianne Landers, City Attorney, Georgetown, Texas, Practical Tips for
Limiting Liability for Municipal Code Enforcement, Paper, IMLA Conference, October 8,
1966.]