Goshen News, Goshen, IN

Local News

August 3, 2012

Who is responsible for sidewalks: The city, the state or you?

GOSHEN — With the hole in the sidewalk in front of the Dew Drop Inn fresh in the minds of Goshen residents, one question remains unanswered: Who is responsible for sidewalk maintenance  — the city or the property owner?

According to the Goshen city code — well, that’s not very clear.

The code addresses sidewalks several times, but doesn’t outright say who owns, or must maintain, what property. However, sidewalks are lumped under public right of way under Title 3, section 3, of the code. The section defines public right of way as “any street, avenue, boulevard, highway, road, thoroughfare, sidewalk, alley or any other property which is owned or controlled by a governmental entity.” In the same section, public property is defined as “all real property which is owned or controlled by a governmental entity, and shall include any public rights-of-way, public buildings, parks and waterways.”

According to Planning and Zoning Administrator Rhonda Yoder, new developments in the city make sidewalks part of the public right of way, if they fall within that space.

“When a new subdivision is built, the developer tends to put new sidewalks in,” Yoder said. “They dedicate the public right of way to the city and they do a maintenance bond (an agreement between the city and the developer for any repairs needed in a set amount of time, typically three years, where the developer is responsible). Once that time is up, it would fall to the city’s responsibility (for maintenance). But sidewalks are more of a gray area.”

By these definitions, sidewalks are public property, just like streets are public property. Since the city is responsible for maintaining city streets, it should follow that the city is responsible for the sidewalks, too.

However, that’s not the case, thanks to state laws and property lines.

In the Indiana state code, Title 36, Article 9, Sections 36 is known as the “Barrett Law Funding For Counties and Municipalities.” This section goes into detail of what counties and other entities can and can’t do — including who must deal with sidewalks.

The law, as found through the state’s website, states that “the works board may require the owners of abutting property to construct or repair the owners’ own sidewalks or curbs if the works board.”

Abutting property means that if your property goes to the sidewalk, your property abuts the sidewalk — which means you’re responsible for its maintenance, and the city can make you construct or repair sidewalks abutting your property.

However, the city does share some responsibility, according to city attorney Larry Barkes, especially when considering unique property lines that go into the middle of some of the older streets in Goshen, as well as considering new subdivisions and dedicated right of way to the city.

“In practical matters, both the business owner, home owner and municipality would have some shared liabilities and responsibilities (for maintenance),” Barkes said.

The city’s Sidewalk and Curb Reconstruction Program, also known as the 50/50 Program, is a way to fund the repairs of the city’s sidewalks, according to Barkes and a handout from the Engineering Department.

The program is not a direct product of the split responsibility, but a solution to sidewalk problems, Barkes said.

“It’s somewhat of a recognition of that shared responsibility,” he said. “It also allows the money set aside for these repairs to be stretched further.”

Applications can be submitted to the program through Aug. 31, and they are available through the Engineering Department.

Outside of repair and replacement of sidewalks, maintenance in the form of raking leaves and shoveling snow is not legally required, according to Barkes.

“I don’t believe (that maintenance is legally required),” he said. “There was a resolution passed a while ago that encourages people to shovel snow and take care of the sidewalks.”

Even with all of this considered, the sidewalks on Main Street prove to be even more complicated. Main Street is a state highway, with private property on either side. Focusing on the downtown district, from Pike Street to Madison Street, Main Street’s zoning puts property lines right to the front of the businesses, not to the center of the street.

More specifically, the downtown zoning district, B2 zoning, requires no setbacks for properties with touching or shared walls, such as the downtown businesses. This means that the businesses can (and do) go right up to the property ownership line, and that the sidewalks are not owned by the businesses.

Does that mean that the state controls them? According to Toni Mayo at the Indiana Department of Transportation (INDOT), the state agency uses a “rule of thumb” for sidewalks and other properties.

“When the state comes in to repair or pave a state road, we take of it curb to curb,” Mayo said. “That means anything on back of the curb isn’t ours.”

While this is the general rule of thumb, Mayo said she wouldn’t be able to speak concretely on the sidewalk in downtown Goshen until after a public records request, which was not returned to The Goshen News before press time.

Yet, in the same way that the city and owner share responsibility for city sidewalks, the state and business owners share responsibility for the sidewalks along state roads, including in downtown Goshen, according to Barkes.

Practically, though, should residents be worried about more problems like the hole in front of the Dew Drop Inn?

According to City Civil Engineer Mary Cripe, no, they shouldn’t.

“There are vaults under the sidewalk on Main Street, leading to many of the businesses,” she said. “Some were used as coal chutes, or basement access or other reasons. Since the incident at the Dew Drop Inn, we have had the fire inspector and a representative from the building department in each building along Main Street to assess the situation. It’s a lot of work, and we need to get an inventory on sidewalks.”

Gina Leichty, director of Downtown Goshen Inc., which coordinates First Fridays, said the event today will be safe for all.

“It seems like (the city) is taking all of the good precautions to keep everyone as safe as possible,” Leichty said. “The city has multiple offices working on this right now, and they’re working with downtown business owners to make sure First Fridays is as safe as possible.”

For more information on the city code, visit www.goshenindiana.org, click on “City Government” and then “City Code” on the left-hand side of the page. For more information on the state code, including the Barrett Law, visit www.in.gov/legislative/ic/2010.

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