America the Messy Yard Police State
Repair the sidewalk or go to jail?Source
Sidewalk lawsuit breaks ground
JOE FERGUSON Sun Staff Reporter | Posted: Sunday, May 23, 2010 5:00 am
Two local businessmen are ignoring the old adage that you can't fight City Hall.
The owners of a 16-unit apartment complex near downtown Flagstaff have filed a lawsuit against the city seeking at least $5,000 in damages. The fight itself is over who should pay for relatively minor repairs of a city-owned sidewalk.
But if they win, businesses and homeowners throughout the city might not have to shovel snow on their sidewalks next winter.
The dispute started more than a year ago when one of the business owners, Mike Souris, complained about the poor condition of city-owned sidewalks adjacent to the apartment complex.
A week later, the city replied to his letter, telling him he had 10 days to fix the sidewalk or the city's street department would make the repairs and bill him for the work. The letter cited a city code making the business owner responsible for the sidewalk.
Souris and his business partner, local attorney Gerry Nabours, refused to pay, and in October the city placed a lien on the apartment complex on the northeast corner of Cherry Avenue and Bonito Street.
Fast forward to today and the two sides are headed to court over who should pay for the repairs made to the sidewalk.
The outcome of the court case could have wide implications for an untold number of residents and businesses that are required to clear city-owned sidewalks of snow and ice during the winter.
Sitting in his office downtown, Nabours said the city cannot force him or any business to repair the city-owned sidewalk. Pulling out a copy of the city code cited in the first letter, Nabours said he can't find any language that would force him to be responsible for the maintenance of any city-owned property.
In a letter to the city, Nabours notes that the city doesn't believe the owners of the property caused the damage to the sidewalk, only that their business is responsible to repair the damage.
Nabours said the city has referred to an opinion by a previous Arizona attorney general that cities have the legal authority to require property owners repair sidewalks adjacent to their property. The opinion, however, was written 54 years ago and was never part of any legal ruling or adopted law.
Nabours offers his own list of legal citations as a counterpoint. He contends that the city charter doesn't cover the sidewalk issue and the state constitution has language related to eminent domain, which he argues is applicable in this case.
"It is an illegal tax levied on businesses," he said.
City attorney Pat Boomsma declined to comment on the case, although the city has filed a motion to essentially dismiss the case.
The case is scheduled to be heard in Coconino County Superior Court next month.
Joe Ferguson can be reached at email@example.com or 556-2253.