Public Sidewalks and Municipal Program Responsibilities

Paul G. Sanderson

Sidewalks are part of the public highway, but they present local officials with problems that differ from those seen in the area reserved for automobile traffic. As you consider whether your municipality should have a policy to encourage construction and maintenance of sidewalks, there are several stakeholders whom you should consult. The level of disagreement as to where and how sidewalks should be constructed or maintained may surprise you. Unfortunately, there are no easy answers to these questions. Let’s describe several of the differing perspectives.

The Planner
Sidewalks are really important to the planner. The proponents of the “new urbanism” school of planning encourage the adoption of policies that promote housing, work places, shops, entertainment, schools, parks, and civic facilities essential to the daily lives of the residents, all within easy walking distance of each other. This philosophy seeks to reduce the reliance upon the automobile and increase the reliance on pedestrian travel.

Two of the guiding principles of this planning movement are (1) walkability, with a goal for pedestrian-friendly street design and most amenities located within a 10-minute walk of home and work, and (2) connectivity, achieved through development of an interconnected street grid network to disperse traffic and improve the walking experience along with a hierarchy of narrow streets, boulevards, and alleys for a pleasurable walking experience.

The planner will recommend to local land use boards that pedestrian facilities be required as part of all new or rebuilt residential and commercial projects by making them a requirement of the subdivision regulations and the site review regulations. If the land use boards adopt such a policy, it will support the goals of improving the livability, sustainability, and energy efficiency of public spaces.

Stormwater
An environmentalist concerned with stormwater would likely agree that pedestrian travel is important and should be accommodated but would have a very different idea of how the pedestrian facility should be designed and where it should be placed. Instead of a dense, compact, raised paved area, the goal is a “low impact” design (LID).

The official LID website outlines the program goals: “LID seeks to design the built environment to remain a functioning part of an ecosystem rather than exist apart from it. … LID provides technological tools to plan and engineer any type of urban site to maintain or restore a watershed’s hydrologic and ecological functions.” The LID approach includes five goals: to encourage conservation measures; to promote impact minimization techniques such as impervious surface reduction; to provide for strategic runoff timing by slowing flow using the landscape; to use an array of integrated management practices to reduce and cleanse runoff; and to advocate for pollution prevention measures to reduce the introduction of pollutants into the environment.

Stormwater designers want sidewalks to be constructed at or below the level of the vehicular portion of the highway, using materials and construction techniques that will allow stormwater to infiltrate into the earth rather than run off to accumulate in retention areas. These goals are not just a wish or desire; they are consistent with the federal Clean Water Act, which is implemented through the National Pollutant Discharge Elimination System (NPDES) permit system of the U.S. Environmental Protection Agency (EPA). Many New Hampshire municipalities must comply with the NPDES Phase II stormwater permit requirements of the federal law. How future sidewalks are constructed will have an impact on how the municipality complies with these legal requirements.

Pedestrian Safety
The Federal Highway Administration (FHWA) component of the U.S. Department of Transportation has devoted a significant amount of time and research to issues of pedestrian and bicycle safety. The FHWA works closely with the Department of Transportation in every state, including New Hampshire.

The FHWA advocates a set of nine “Proven Countermeasures for Pedestrian Safety,” of which the traditional raised pedestrian sidewalk is but one of the techniques available to designers. In fact, many states have chosen to simply alter the design of the shoulder area of the vehicular travel area to accommodate pedestrians rather than build a separate sidewalk. However, facilitating vehicle movement runs counter to the planner’s desire to increase walkability, and the barriers often needed to safely separate cars from pedestrians prevent installation of desirable stormwater designs.

Again, these matters are not simply wishes or desires. To the extent that the municipality seeks state or federal funding for transportation related infrastructure improvements, the project must be designed to applicable federal standards. One program often used in New Hampshire for such funding is the Transportation Enhancement/Congestion Mitigation Air Quality program, which has many specific design requirements.

To make matters still more complex, in New Hampshire, Class I, II, III, and III-a highways are managed and regulated by the state Department of Transportation, while Class IV, V, and VI highways, as well as all municipal trails, are managed and regulated by the municipality. While it is certainly possible for state and local officials to confer and reach agreements about how sidewalks in these areas should be designed and constructed, the statutes remain clear as to who is in control of which class of highway and whose decision will be implemented.

For many years, the New Hampshire Department of Transportation policy has been that it will not maintain a sidewalk in any area under its responsibility other than a sidewalk on a bridge. In areas where new state highways are created or existing highways are altered, the department will not construct a sidewalk within its right of way unless the municipality commits in writing to assume all ongoing maintenance of the sidewalk. In such areas, the state department retains all control over design, location, and specifications of the sidewalk, even though it will not maintain the area once opened to the public.

Maintenance
The local public works department or the local road agent maintains public sidewalk facilities once installed and accepted as part of the adjacent highway. If the design includes a vegetated strip between the sidewalk and the traveled way, there will be concerns about vegetation control. The maintenance task may range from mowing of grassed areas to control of shrubs and trees to maintain the width and walkway and prevent the growing vegetation from interfering with the movement of people and vehicles, or interfering with overhead or underground utility installations. Vegetation maintenance is also a safety issue if the plantings begin to restrict the ability of motorists to see at an intersection, or if the plantings obscure traffic control signs or signals, or if dead or diseased portions of trees pose a hazard to motorists, pedestrians, or adjacent utilities.

The surface of the sidewalk facility requires ongoing maintenance in order to deal with cracks or deterioration of pavement materials, the influence of tree roots, or failures in drainage. Every winter and throughout the season, the sidewalk must be cleared of accumulated snow and ice. This involves more than just storm events, since the freeze/thaw cycle results in new ice formation from adjacent snow banks at unpredictable intervals. Plows used for the highway cannot be used on walkways, thus necessitating the purchase and use of specialized equipment and the dedication of sufficient operator time. The deicing salts used in the roadway may do significant damage to vegetation adjacent to the walkway, and thus different deicing strategies may be needed. Ongoing maintenance is a significant financial and operational responsibility, and in a time of reduced resources, the public works department may conclude that it does not need or desire more sidewalks to be added to its long list of responsibilities.

Entering into such an agreement is not something that should be undertaken lightly. Maintenance responsibilities are imposed by state statute. See RSA 231:3 for municipal highways and RSA 230:3 for state highways. Under New Hampshire law, sidewalks are expressly made a part of the highway, and maintenance responsibilities apply to the sidewalk. See Gossler v. Miller, 107 N.H. 303 (1966) and Hall v. Manchester, 40 N.H.410 (1860). Thus, when a municipality voluntarily assumes a duty to maintain an area which it has no duty to maintain under statute, there is a shifting of risk, responsibility, and potential liability from the state to the municipality, which could at some point result in a significant expenditure of local taxpayer funds. Under these agreements, the state department does not relinquish ownership or control of its right of way and could thereafter take actions that make it more or less difficult to maintain the sidewalk area, even if the municipality objected to the action. This could include changes in speed limits, changes in drainage structures or patterns, additions of signs, or additions of utility poles or other obstructions in the sidewalk area. There is no statute describing the duties of the state as to sidewalks on state highways, including the state highway version of the “insufficiency law.” See RSA 230:78 – :82. In fact, the state is not liable for injuries occurring in the municipally-maintained areas of Class II state highways. See RSA 230:82.

There is no statute that compels a municipality to construct a sidewalk or make special provisions for the safe movement of pedestrians. In the cities, abutting landowners may be assessed up to half the cost of constructing a sidewalk. See RSA 231:111 – :112. However, once constructed, abutting landowners cannot be held responsible for the maintenance of sidewalks, either financially or by requiring the abutter to work on the sidewalk. See RSA 231:113 and State v. Jackman, 69 N.H. 318 (1898). This prevents municipalities from enacting an ordinance requiring abutters to remove snow from sidewalks at their own expense during the winter months. Municipalities are protected from liability under the “insufficiency law,” RSA 231:90 – :92-a, for injuries arising out of defects in the sidewalk, and for injuries occurring during weather related hazards, in accordance with the procedures set forth in those statutes. Municipalities are not liable for injuries occurring in state maintained portions of state highways.

Access for the Disabled
Finally, public sidewalks are part of the local program of services available to everyone, and if they are provided, the federal Americans with Disabilities Act (the ADA) requires that they be made accessible to the disabled as well. The particular provision in question provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.

Until recently, there was a question about whether a sidewalk was classified as a “facility” or a “program” under this federal law. The question is important, because a “facility” which was constructed prior to the effective date of the act (January 26, 1992) need not come into compliance until it is modified. However, a “program” must be readily accessible to and useable by persons with disabilities, and this requirement applies to all existing facilities, regardless of when they were constructed or modified. See the federal Department of Justice website (www.ada.gov/smtown.htm) for an explanation of the responsibilities of small municipalities under the ADA.

Recently, the National League of Cities joined other groups in asking the U.S. Supreme Court to hear an appeal by the City of Arlington, Texas, from a decision of the Fifth Circuit Court of Appeals. The case is reported as Frame v. The City of Arlington, 632 F.3d 177 (2011) Petition for certiorari denied on February 21, 2012, U.S. Supreme Court docket No. 11-746. The Fifth Circuit Court of Appeals found that sidewalks are a “program.” The City asked the Supreme Court for review, and to find that sidewalks are “facilities,” and thus preserve the discretion of municipal officials to determine when to rebuild sidewalks. The appellants argued that finding sidewalks to be a “program” could cause significant financial impact to public works programs throughout the county. The government, joined by other groups, including the AARP, argued the opposite.

The Supreme Court declined to hear the case, in part because three other federal appeals courts had previously determined that newly constructed or altered sidewalks constitute a “service, activity or program” for purposes of the ADA, making municipalities responsible for their continued accessibility. These cases are Kinney v. Yerusalim, 9 F.3d 1067 (3d Cir. 1993); Barden v. City of Sacramento, 292 F.3d 1073 (9th Cir. 2002); and Ability Center of Greater Toledo v. Sandusky, 385 F.3d 901 (6th Cir. 2004). In the Sacramento case, the Supreme Court had also declined to take up the City’s appeal.

Since the obligation to maintain sidewalks is a “program access” obligation, the statute of limitations on an alleged ADA violation does not begin to run until the plaintiff (the disabled person) knows or should know that he or she is being denied the benefits of those sidewalks. Thus, any sidewalk must be made and kept accessible at all times. This ruling is consistent with decisions of the New Hampshire Supreme Court. See the Court Update column in the November/December 2011 issue of New Hampshire Town and City magazine (available at www.nhlgc.org) where we detailed in a question and answer format the result of Tinker v. Town of Tilton, Docket No, 2009-0012, decided June 10, 2009. The New Hampshire Supreme Court also determined that the municipality had an ongoing obligation under the ADA to keep a sidewalk maintained in all seasons to permit access by disabled persons.

The exact specification of what constitutes an “accessible sidewalk” is also an issue that is somewhat unclear. The task of defining the specification has been assigned United States Access Board. The Board is a coordinating body among federal agencies to directly represent the public, particularly people with disabilities. It includes representatives from federal departments and members of the public appointed by the President. The detailed products of their efforts are found at http://www.access-board.gov/prowac/, which will eventually be adopted as a federal administrative rule. These new requirements, once effective, must be incorporated into future projects that construct or alter a public sidewalk.

Conclusion
The sidewalk issue will be presented before local officials in a variety of ways, and often with conflicting advice.

Planners and advocates for the disabled will argue that increased opportunity for pedestrians is both good public policy and a reasonable accommodation for the needs of our disabled citizens. They will argue that sidewalks should be wide and flat, and well separated from motor vehicle traffic; sidewalks should be four-feet wide, free of obstructions, and contain all of the design elements which make it easier for those without sight or hearing, or with limited mobility, to negotiate the pedestrian facility.

At the same time, the environmentalist will argue for different materials, and much less of a separation from motor vehicle traffic. The key issue here is stormwater.

The road agent or public works official may suggest that the sidewalk is not necessary at all, and that the needs of the pedestrian can be accommodated within the limits of the traveled way. For them, the costs of maintenance, especially in the winter months, will suggest that the budget cannot sustain the duties imposed.

As local officials, this is where discretion is the key. There will be places where safety can only be maintained by a raised sidewalk separated from traffic by curbs or other barriers. There will be places where the amount of traffic is low, and accommodations can be placed within the traveled way. There will be places with sensitive environmental impacts where an LID compliant design is the best answer. Only by receiving all of this information and evaluating each specific site in light of all of the information can a reasonable decision be made.

Paul Sanderson is a Staff Attorney with the New Hampshire Local Government Center Legal Services and Government Affairs Department. Local officials in New Hampshire Municipal Association member municipalities may contact LGC’s legal services attorneys for more information on this and other topics of interest, Monday through Friday, 8:30 a.m. to 4:30 p.m., by calling 800.852.3358, ext. 3408. School officials should contact the New Hampshire School Boards Association attorney at 800.272.0653.

Additional Resources

The following links provide more information related to topics discussed in this article:

New Urbanism

Low Impact Design

EPA, Stormwater Program

FHWA, Pedestrian and Bike Safety

FHWA, Highway Design

ADA, Small Town Responsibilities

United States Access Board