In Shel Silverstein’s bestselling book, “Where the Sidewalk Ends,” readers journey through a dizzying fictional tale in which boys are turned into television sets and diamonds grow in gardens. But for Nashville residents Jim Knight and Jason Mayes, their dizzying bureaucratic journey of attempting to develop their property was terrifyingly real.
The story begins with Jim and Jason wanting to build houses for their families. However, for the past four years, the city of Nashville has tied up their plans in red tape, demanding they each build a sidewalk on their property. Yet for Jim, building a sidewalk would cause flooding on his neighbor’s property and for Jason, a sidewalk on his property would be pointless as it wouldn’t connect to any path. Nevertheless, Nashville continued to hold up their projects.
So how are things supposed to work? Well, when a city wants someone’s property—whether it’s the whole property or just part of it such as for a sidewalk—the government can take it as long as it’s for “public use.” But there’s a catch; when the city uses this power, the Constitution requires that it pay the property owner “just compensation” for the property it takes.
In this case, the city of Nashville wanted land for more sidewalks, but it didn’t want to pay for it, so some clever lawyer at City Hall tried to design a workaround.
Nashville passed an ordinance requiring that anyone who wants a permit to build virtually anything on their own private property, donate the land necessary to provide a sidewalk and pay to have it constructed—or pay the government to build sidewalks elsewhere. As a result, if Jim or Jason want to build their homes, they must give the city the very thing the city would ordinarily have to pay them for under the takings clause.
Typically, this sort of plan to circumvent the Fifth Amendment would get Nashville nowhere, because the Supreme Court has already said that you can’t get around the takings clause by making an otherwise unconstitutional demand a condition for a permit. So, when Jim and Jason sued Nashville to overturn the sidewalk ordinance, there was a strong likelihood they would win. But Nashville had one more trick up its sleeve to get free sidewalks, and, in doing so, really turned this case on its head.
Nashville made the radical claim that the takings clause only applied to takings carried out by members of the executive branch and didn’t apply to takings carried out by legislators. In other words, while a demand for property from a zoning board or the mayor would run afoul of the Constitution, the same demand would be constitutional coming from the city council.
Such an arbitrary distinction is found nowhere in the Constitution. In fact, the Supreme Court has expressly held that the takings clause does not turn on which branch of the government does the taking.
Unfortunately, the district court bought into Nashville’s little word game and upheld the Ordinance. The case is now on appeal with the Sixth Circuit Court of Appeals.
Hopefully the Sixth Circuit will see through the tricks strike down Nashville’s sidewalk ordinance, ending the absurd journey Jim and Jason have been on. Because it should be clear that the sidewalk ends when the government takes your property to build it. This is true no matter which maze of bureaucratic red tape the property owner navigates through. Our country relies on this certainty of property rights and those it must be protected.