Legal challenge of Property Dedications Threatens Sidewalks

From April Bertelsen:

It is with a heavy heart that I share the following news. There has been a legal challenge in Federal court to the City of Portland’s ability to require private property dedications to build sidewalks.

The Case
The case is Marion Skoro v. The City of Portland, No. CV 06-1319-HU, filed in the United States District Court for the District of Oregon. See the attached Opinion and Order of the Judge filed on February 21, 2008. Marion Skoro, a local property owner and developer, filed the case claiming a takings for two separate properties where the City required sidewalk dedications. At SE 52nd and Cooper, the City required a six (6) foot dedication to widen the sidewalk from 6 ft to 12 ft. At SE 52nd and Woodstock, the City required a two (2) foot dedication to widen the sidewalk to 12 ft.

This is a challenge to City policy to create an accessible and sustainable transportation system. It is a challenge to the Pedestrian Design Guide, intended to help develop an environment conducive to walking, for which we are nationally known. For those of you steeped land use legal issues and case law, we are talking property rights issues, takings, and case law including Nollan vs. California Coastal Commission and Dolan v. City of Tigard.

The Ruling
To summarize the ruling, the judge ruled in favor of the plaintiff, Marion Skoro, for his property at SE 52nd and Woodstock and sent the case regarding SE 52nd and Cooper to a trial with a jury.

Next Steps
The City has not given up here. We need to make a VERY strong case to sway a jury in our favor for the SE 52nd and Cooper case. We will challenge the other in court as well.

We Need Your Help
I am contacting you because I think you have a stake in the outcome of this decision, may be able to help play a role in our challenge and/or can help share it with others that may. In the near future, we may be contacting individuals to serve as expert witnesses to help us make that case for why we require dedications to widen sidewalks, how 12 ft sidewalks provides ADA compliant accessible pathways given all the other objects located in the sidewalk zone (trees, poles, A-boards, bike parking, sidewalk cafes, newspaper boxes, etc), as well as how sidewalks benefit the abutting property owner and access to their businesses, etc.

PLEASE let me know if you take interest if helping our case or know some who does.

PLEASE share this message with your members, colleagues, etc

0 responses to “Legal challenge of Property Dedications Threatens Sidewalks”

  1. Can you give us some details, prior to this ruling, of under what circumstances the city could demand a sidewalk dedication?

    I’ve seen it happen when a property is rezoned for more units at the request of the property owner, as a condition of permitting the change. This makes sense as a way to negotiate needed improvements for the added density.

    Are there circumstances where the city can implement a sidewalk dedication arbitrarily for an existing property that is not facing redevelopment? Is there a distinction for residential vs. commercial?

    I’m aware of a couple of recent redevelopments along NE 60th ave, and interestingly a sidewalk dedication was required of one of the properties but not another, even though they are comparable developments less than a block apart.

    (60th is interesting because decades ago the street was widened but the sidewalks weren’t, leaving 3ft+6″ curb sidewalks in many areas that can’t be widened further without encroaching on private property and some buildings. Personally I favor reclaiming the street for normal sidewalks. The rest of 60th (or 57th, the route 60th diverts to) is not quite so wide.

  2. 12ft sidewalks are overboard… I doubt there is any streets in Portland, with the exception of some portions of downtown, that have enough pedestrian traffic to warrant 12ft wide sidewalks.

  3. 12 foot sidewalks are appropriate anytime you have retail frontage. The breakdown is:
    – 4 feet against the curb for street tree plantings and any obstructions, such as utility poles, street lights, parking meters, newspaper kiosks, fire hydrants
    – 2 feet against the building as a frontage zone – people don’t walk right up against the building; this also allows shop owners to put potted plants or a sign outside without obstructing the walking space
    – 6 feet clear space to walk, allowing wheelchairs to pass, and pedestrians to walk side-by-side

    This still leaves little space for sidewalk dining, which is important to activating retail areas. It’s not near enough in a bustling downtown area, where 16-20 feet is more appropriate. There is nothing excessive about 12-foot sidewalks in retail zones.

  4. The city comes around here at my property at 23rd and Everett and is constantly making trouble with the [expletive deleted] sidewalk.

    I’VE HAD IT WITH THIS [expletive deleted] CITY!

  5. In case you haven’t noticed, I have one hell of a [expletive deleted] problem with bureaucrats in general and specifically [expletive deleted]City of Portland bureaucrats coming around business people and/or private citizens and telling us how to spend money, usually on useless nonsense to satisfy some absurd regulation.

    The [expletive deleted] City of Portland is out of control and needs to be whipped back into its place.

  6. People who sit behind desks all days making reports and attending “meetings” have no business telling the rest of us-

    (ya know, the one’s that actually do real work)

    -what to do and how to do it.

    [expletive deleted] BUREAUCRATS!

  7. The simple fact is the City does NOT need 12 foot wide super-sized sidewalks in most location. There are very few exceptions with some parts (not all) of downtown being one of them.

    On NE 102nd for example, the existing sidewalk on the East side of the street has been torn up between the Gateway Shopping Center and Glisan Street to replace it with a wider one by digging front yards and drivways. This is nothing more than a government taking of private property without compensation. It is also a waste of City resources, especially when the money could be used to repave and maintain streets, add less costly six foot sidewalks where they do not exist, and demonstrates one reason why Commissioner Adams’ frivolous request for a street maintenance fee is so out of touch with reality.

  8. Terry –

    We’re talking about a 12ft ROW here which can include planting strips, utilities, building frontage zones, etc., which leaves a 6ft or so continuous pedestrian zone.

    Are you sure that the 102nd Ave sidewalk improvement project constitutes a government taking? In most areas, the work should be happening entirely within the existing public ROW. 102nd Ave. has a wide ROW.

  9. The city really ought to stop and think about what they’re doing. They’re asking voters to approve a Street Maintenance fee/tax in November at the same time this is coming up. Imagine the horror of the city getting additional funding for something, but instead has to spend all of it in legal costs and monetary court settlements. Imagine everyone paying more for… nothing!

    BTW, I’m very familiar with this stretch of 52nd, as I briefly lived in the Woodstock Neighborhood and still sometimes need to use the sidewalk lining the street (I’m not going to get started about the 71, and believe me, you don’t want me to).

    Wasn’t Dolan vs. Tigard about essentially the same issue, the only difference being that it was for a pedestrian trail (Fanno Creek Greenway) instead of a sidewalk? And wasn’t there a Supreme Court ruling that eventually led to the City of Tigard having to purchase the stretch of property outright, just like anyone else would have to do if they wanted to use the personal land of someone else?

  10. When the ADA mandated curb cuts at intersections, mostly for wheelchair users, every pedestrian benefitted. Same thing happened with low-floor MAX trains and low-floor Tri-Met buses – everyone benefitted from the mandate. When will the handicap-vans be declared obsolete and replaced with low-floor vans? When GM opens up a new plant in Indonesia?

    When the Ross Island Bridge was rehabbed a few years back, ODOT refused to widen the sidewalk more than its then 5′ width – too bad when a wheelchair user meets another in the middle. And ODOT put a steel barrier against the concrete ballistrade instead of between the traffic lanes and the sidewalk. Oh sure, ODOT, protect your precious concrete work and leave pedestrians in danger.

  11. I’d forgotten about the Ross Island bridge. It is completely legal for me to ride my bicycle across it, and since the sidewalk isn’t big enough, I’d have no choice but to use a travel lane. The speed limit on the bridge is 45 or something, but I’d probably only do 20… And it wouldn’t take very many bicycles doing that before it really slowed down car traffic on the bridge. Yet Terry is saying that cyclists should have to pay extra for “their” special infrastructure, instead of the car drivers that would be the ones that would actually benefit from widening the sidewalk…

  12. “too bad when a wheelchair user meets another in the middle”

    Has anyone ever seen one wheel chair on the Ross Island Bridge?

    The idea that at some point two wheelchairs would meet in the middle of Ross Island Bridge and not be able to pass each other is hillarious.
    How about two seniors using walkers?
    Two mothers with twin strollers each?
    Two really fat people?

    It’s amazing that some people are concerned about imaginary scenarios like this.

  13. 39th needs to be widened another 5 feet, minimum. I’m thinking Paris Boulevard style street widening.

    Just the other night a bus mirror came within inches of a couple – almost took their heads off. And they were standing in the middle of the sidewalk, near the Hawthorne Theater.

  14. 39th needs to be widened another 5 feet, minimum. I’m thinking Paris Boulevard style street widening.

    I can’t even imagine how much that would cost. And it would be a hell of a lot of property displacement for, basically, an extra parking lane, slightly wider sidewalks and some curb strips.

  15. “Just the other night a bus mirror came within inches of a couple – almost took their heads off. And they were standing in the middle of the sidewalk, near the Hawthorne Theater.”

    You wouldn’t be prone to exaggeration would you?

  16. I understand, from my time working in PDOT, that the City generally only takes property for a wider sidewalk when there is new development. There may be some legal loophole for when the City might be able to do so on an existing development with no new permits on file, but I don’t remember this happening. So, generally the City waits until something new happens, then will implement whatever new regulations are in effect (i.e. wider sidewalks, etc.). Since in many properties, nothing new has happened since before newer pedestrian-friendly regulations were enacted, this could be a drastic change from the last time there was permit activity, which might have been during a more pro-auto, what-the-hell-are-pedestrians age.

    52nd & Woodstock could use wider sidewalks, IMHO. The sidewalks there are rather narrow, without the usual planter strip between the pedestrian and the cars (which is found a few blocks away on both 52nd and on Woodstock).

    Hopefully, this court case is won by the City.

  17. “Hopefully, this court case is won by the City.”

    NO MAAM-

    I want the [expletive deleted] City to get its [expletive deleted] [expletive deleted] KICKED!

  18. JohnE lightly dismisses pedestrian use of the Ross Island Bridge. The view is fantastic, invigorating, but the sidewalk too vulnerable to motor vehicle traffic passing within inches at speeds that average and exceed 45mph. Maybe JohnE could go to work for ODOT and express his sense of humor by displaying little cartoon dead bodies on his bumper for every pedestrian fatality that occurs due to his own professional indifference. “Ha Ha. So funny. That JohnE, he’s a kidder…”

  19. Wells, I agree that John E’s comments about pedestrians were insensitive and short-sighted, but let’s not get too personal when criticising those remarks.

  20. I have friends that have crossed the Ross Island on bicycle, and lived to tell about it. A critical mass ride over that bridge might turn a few heads though…


  21. To get to the other side. :-)

    But seriously, I’ve seen issues crop up on normal surface streets which have substandard sidewalks. (For example, NE 60th has less than 4′ sidewalks in many places).

    When people pass in 2 directions, someone must step onto a lawn or into the gutter/parking area. This may be a satisfactory compromise in some situations, but on the Ross Island Bridge there is no margin of safety for someone stepping off the sidewalk – the traffic is immediately adjacent.

    On 60th, I’ve seen mobility device (wheelchairs, power scooters, etc.) users arrive in opposite directions, and one person will have to back up until a driveway or other suitable paved exit is available, so that the other may pass. I’ve even talked to one such person who rides for several blocks in the street, with traffic, rather than risk the narrow sidewalk which has driveway cuts so steep that if they aren’t hit at just the right angle a wheelchair could be toppled.

    The risk of this happening on the Ross Island Bridge is fairly low, but not so low that there isn’t a de facto ban against mobility device users. The cost of having to back up at least half the length of the bridge if another user should be coming the other way, or of any obstruction such as rocks and debris is encountered, is just too high to risk proceeding out over the bridge in the first place.

    Consider that our population is aging, and more and more people will be using mobility devices in the future. At the same time, battery technology is improving and these devices will have greater and greater range.

    Maybe the Ross Island Bridge isn’t the perfect example, but I’m aware of numerous examples around town where the lack of a 6′ through zone presents an impediment to self-mobility, which undoubtedly results in more LIFT rides being required, and those are the most expensive transit rides of all. Anything we can do to encourage and facilitate mobility among the populace by people with special needs benefits society as a whole in many ways.

  22. Last week, Terry said this with regard to the 102nd Ave. improvement project:

    “This is nothing more than a government taking of private property without compensation.”

    This is a very strong accusation, so I wrote to PDOT to see if compensation was involved where the public ROW was expanded. Here’s the response I received:

    None of the project is taking property without compensation. […] In all cases
    the property was appraised by an independent appraiser, the city paid for all of the property used for the project, including construction easements. All of the property owners with one exception have agreed with the compensation offered.

    Additionally I learned that most places along 102nd Ave. had a 7′ ROW for sidewalks (including utility poles, signs, furnishings, etc.) and that the project is expanding this to 15′.

  23. What does the Office of SUstainable Development have to say about the more concrete in big ass sidewalks. More concrete, more heat island effect, and more global warming.

  24. Bob,

    You articulated about narrow sidewalks as a rationale for wider sidewalks by stating how a person must step off the sidewalk when two people pass, and how when two mobility devices meet, one must take refuge in a driveway for the other to pass. Then too you must agree to apply that same rational to substandard narrow streets, either where two cars can not pass, or where the lanes are a narrow substandard width. One example of streets being two narrow can be found in my own neighborhood, A couple of years back there was an estate sale on one of those narrow streets that attracted a large number of people who legally parked their vehicles on both sides of the street. That made it impossible for a garbage truck to go down the street without some people having to move their cars.

    Additionally, I have yet to see documentation of two mobility devices crashing with each other because of narrow sidewalks, but there have been reports of motor vehicle crashes due to narrow lanes. PDOT however is foolishly planning to make upper West Burnside more substandard than it already is with 10 ft and 10 ft 6 inch lanes all for the sake of super-sizing the sidewalks. I am sure that you are aware the width of a TriMet bus in addition to many large trucks is 10 ft 6 inches mirror to mirror. Therefore a bus or large truck will not even fit in a 10 ft lane and has no safety margin in a 10 ft 6 inch lane. Furthermore, West Burnside is an alternate truck route to the tunnels on Highway 26.

    As for your comment about a de facto ban against mobility device users on the Ross Island Bridge, the public is paying a high price to have low floor busses in Portland just so mobility devices can be accommodated, and these busses do cross the Ross Island Bridge. Conversely, since there is another option for people using mobility devices to travel across the Ross Island Bridge, the issue of narrow sidewalks is far less of a problem than sub-standard streets that do not allow or can not accommodate trucks to travel on them, and far less of a problem than the proliferation of curb extensions that create real difficulties for large trucks making turning movements.

    Finally, you missed my main points about the sidewalks on 102nd, tearing up existing sidewalks to add super-wide sidewalks is simply unnecessary, whether the new sidewalks are 12 ft or the absurd super size of 15 ft; and the money could be better spent adding considerably smaller width sidewalks where there are no sidewalks at all. .

  25. Terry: I was thinking the same thing about the 102nd sidewalk construction going on.

    102nd already had continuous sidewalks on both sides of the street throughout the entire project area. Little-to-non-existent foot traffic does not warrant spending highly limited transportation dollars on doubling the sidewalk size. What other “improvements” are there? Reduced lane width on an already busy street? Pedestrian scale [whatever that means] lighting?

    Meanwhile, Near-by Glisan, Stark, and Division have curbs but a kind of grown over mud, gravel, and weed mixture to walk on and regular old street lights. Me thinks our priorities are all out of whack.

  26. “you missed my main points about the sidewalks on 102nd”

    You claimed it was an illegal taking without compensation. That seems like a pretty main point to me, and a serious accusation. So, I contacted the office responsible and discovered that in fact property owners were being fully compensated.

    Regarding the lack of a report of two people with mobility devices “crashing”, I never said that. I said there wasn’t room for them to pass, and I’ve seen this happen with my own eyes.

    Regarding the inability for vehicles to pass bidirectionally on narrow residential streets, how would you propose widening those streets? Removal of planting strips and trees? Just for the sake of bidirectional traffic which is rarely an issue … how many estate sales each month happen on your block?

  27. If the street is so narrow that there isn’t room for a garbage truck to get down it when there are cars parked on both sides, it seems like the easy solution is to make parking on one side illegal. Much like I wouldn’t advocate putting bicycle parking on the 4 foot sidewalk in front of my house, I don’t think cars should be allowed to park streets so full that you can’t get a fire truck down them…

    Certainly you could widen the street, but my guess is that the street is wide enough already for two fire trucks to get down it in opposite directions if it wasn’t full of parked cars at the same time.

    Nowhere do I see any mention of a plan to widen the sidewalk out so wide that two people in mobility devices can pass each other at the same time that two people in mobility devices are stopped along the edge of the sidewalk “just cause that would be nice.” The sidewalks in downtown are wide enough for that, but it has a lot to do with the fact that they see a lot of traffic. Much the same as how a lot of streets are several lanes too…

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