Residents react to sidewalk order

Editor's Note: ARTICLE EDIT 10.21.2021 12:44 p.m.

Since publication of this story, The Sentinel has received documents which establish that Cottage Grove Municipal Code regarding property owner sidewalk responsibilities date back to at least 1964. This article has been edited to reflect the new information.

Following a Cottage Grove City Council decision to issue a sidewalk order to property owners on Taylor Avenue last week, residents have spoken up to air their frustrations over the move.

“They’re not representing us when they behave this way,” said resident Sherry Hallum, adding that the order felt overly aggressive.

The sidewalk order applies along Taylor Avenue eastward from 10th Street, impacting 11 properties. It gives property owners six months to bring their abutting sidewalks up to city standards. If property owners do not want or refuse to perform the work, the city has the right to do the work and put a lien on the adjacent property.

Though the municipal codes regarding sidewalk responsibilities and liabilities date back to at least 1964 (and were last updated in 1996), the fact that property owners are responsible for their abutting sidewalks has taken many residents by surprise.

Under Chapter 8.12 of city code, it states that “the owner of real property abutting a sidewalk shall maintain the sidewalk in good repair and safe condition” and “the owner of real property abutting a sidewalk shall be liable to any person injured because of failure by the owner to maintain the sidewalk in good repair and safe condition.”

Elsewhere, Chapter 12.08 describes the duties of Cottage Grove landowners to improve adjacent sidewalks that have fallen into disrepair when required by order of the city council and the city’s right to attach liens.

Though it also states that those receiving sidewalk orders have 30 days to come into compliance, Councilor Mike Fleck at the council meeting moved to amend the order to extend that window to six months. The rest of the council supported the amendment.

The sidewalk order came about in large part due to citizen complaints about safety. On Sept. 24 and 25, 2021, city staff and councilors received letters stating that two senior community members had recently fallen on the sidewalks. One fall occurred just last month, during which the senior tore his pants, sustained a knee wound and hit his head, prompting family to take him to the hospital.

City staff subsequently walked the area of concern and noticed several areas of disrepair and missing driveway approaches. In addition, much of the stretch has a rolled curb and is under five feet wide, which does not meet city standards.

In exploring solutions for residents, City Engineer Ron Bradsby laid out some options, starting with city responsibilities.

“The city has to hire a contractor to replace the rolled curb. That’s on the city,” he said at the Oct. 11 city council meeting. “We’re going to explain to the property owners that if they want, they have an opportunity to let the city’s contractor come in and do their sidewalk as well if they do not want to perform it.”

Resident Responses

However, the city’s reaction to these complaints came as a surprise to Taylor Avenue residents.

“We approached the city about this I guess not being fully aware that the sidewalks were the homeowners’ responsibility,” said resident Yvonne Miller. “[We were] trying to open up dialogue with the city and felt like all of a sudden, it was just out of nowhere that, ‘Hey, this is your responsibility and fix this.’ It just happened so fast.”

Miller said she was disappointed more conversation didn’t take place before any decision was made.

Other residents impacted by the order seem to be in consensus that the sidewalk order is an undue financial burden and the process neglected to allow for a properly seeking other solutions.

Miller said she was worried for families who were still financially struggling through the economic impacts of the pandemic, especially those residents who are retired and on fixed incomes. Other residents expressed similar worries that their current financial situations are too precarious to take on the extra cost of construction.

At last week’s city council meeting, city staff had received some quotes on construction cost. 

With each of the 11 lots at 60 feet in length, and at $10.50 per square foot, it would cost the property owners $3,150 each for removal and replacement of a five-foot sidewalk. Resident driveways, however, vary in width and construction costs were quoted at $18.50 per square foot.

Though more quotes are being sought, some residents felt that the sidewalk order itself felt threatening.

In the event a property owner cannot pay, they may opt for a lien to be placed on their property after the city completes work, but this is not necessarily an attractive option for many. When a home lien is placed on a property, it can be more difficult to sell the home, obtain a mortgage or refinance the property.

The speed of the process was also a common criticism. All residents interviewed by The Sentinel said they received their notices of the possible sidewalk order on the Friday before the Monday night city council meeting, giving only days to generate a response. Miller said she was away that weekend, causing her time to be even more limited.

Others disagreed with the municipal code outright.

One Taylor Avenue resident who asked not to be named said he did not think the rule made sense.

“We pay taxes. We shouldn’t have to pay for this, too,” he said.

During the city council meeting, resident Gerren Castle said he didn’t think old sidewalks should have been grandfathered into the 1996 city code as not all residents would be responsible for equally-aged sidewalks. However, historical documents of the city's code show property owners have been responsible for upkeep and liable for abutting sidewalks since at least 1964.

Another complaint was that not all of the stretch of sidewalk under the order is in the same condition. The western half closer to 10th Street is relatively well-maintained and residents on this side don’t see the urgency to do repairs.

“I don’t think it’s fair,” said resident Maudie McGrady, who lives on the western half. “I know eventually I need to get it done, but I don’t think we should be forced to do ours when there’s no issues right now.”

Another point of criticism has been the city code’s 30-day window to come into compliance with sidewalk orders. McGrady said that she contacted a contractor immediately after receiving her notification in the mail about the possible order.

“They said 30 days is not long enough,” she said. “He said he would even go to the city council and tell them that they needed to extend it more than 30 days.”

Why Sidewalk Orders?

One of the troubles residents are having in making sense of the issue is the seeming arbitrary nature of the sidewalk order. Sidewalk orders are very rarely issued and there are no clearly established criteria for staff or councilors to turn to before making a decision.

Though city staff can recommend a sidewalk order, ultimately the decision rests with the city council. Once issued, the city engineer is responsible for delivering the notice to the property owners.

Bradsby explained that while the city council can choose to issue sidewalk orders as it sees fit, there is no hard and fast rule regarding which sidewalks to prioritize. Instead, he said, a common criterion for city staff is safety.

Public Works and Development Director Faye Stewart confirmed that the safety concern was a prime motivator in recommending last week’s order.

“There’s at least one injury caused from the disrepair of the sidewalk and the [citizen] request was to get the sidewalk repaired, so that triggered the order option,” he said.

At the Oct. 11 city council meeting, councilors were sympathetic to the situation, but still unanimously voted to issue the order.

Councilor Fleck told The Sentinel that a two people falling on the sidewalk in a short window of time was the main driver in his decision to vote for the order and he felt the six-month extension was a more reasonable window for residents.

However, he added that he’s willing to revisit the topic and weigh options such as extending the window again to the summer.

At the council meeting, some councilors and staff expressed concern that extending the order to six months would also extend the amount of time residents would be liable for any injuries on their abutting sidewalks.

However, city code does not stipulate that a sidewalk order must be issued for a resident to be liable. In fact, all Cottage Grove residents are liable at all times for their sidewalks, regardless of notices.

This point in itself has come as a shock to many residents, but holding property owners responsible for their abutting sidewalks has been established in Oregon case law for more than a century.

Two points, though related, are often addressed separately in Oregon Supreme Court rulings: responsibility for maintenance and liability for injuries.

Many cases have specifically revolved around liability for injuries sustained as a result of poorly maintained sidewalks rather than property owner responsibility for that maintenance.

In 1917, the Supreme Court of Oregon ruled in favor of the City of Vale over a citizen complaint in which a sidewalk had fallen into disrepair. The plaintiff was seeking to recover damages for an injury sustained while stepping into a hole of a defective sidewalk. 

The court ruled that “by virtue of its city charter, the city was exempt from liability.”

Case history has further established that in order to exempt a municipal corporation, an “equivalent remedy” must be provided. In many cities, the primary duty of constructing and repairing sidewalks has been placed upon the owner of abutting property and municipal codes expressly declare the owner liable for failure to perform that duty.

In Cottage Grove’s case, both responsibility and liability have been allocated to property owners, thus meeting the standards for the city to exempt itself.

Regardless of the city’s rights, however, in Taylor Avenue residents’ eyes, there have been at least two opportunities in recent years for the sidewalk to be addressed and upgraded.

The first came with the construction of the new Harrison Elementary School, which began in 2017. Directly across the from the sidewalk in question, South Lane School District installed new sidewalks and ramps along the entire frontage of the school’s property.

There were, however, no requirements for the school district to commit to construction projects not abutting its property and the opposite side of the street was not included in the upgrade.

Another chance came with the sprawling Safe Routes to School project, which started in 2019.

The nearly $1.7 project addressed key safety concerns on five routes to Harrison Elementary and Lincoln Middle schools: East Harrison Avenue from South River Road to South Third Street; South Fourth Street from Central Pacific Railroad to Grant Avenue; Grant Avenue from South Fourth Street to South Sixth Street; Fillmore Avenue from South Fourth Street to South Sixth Street; and Taylor Avenue from South Fourth Street to South Eighth Street.

Previously, these locations had been identified as areas of concern in street analyses by city staff.

Taylor Avenue residents across from Harrison Elementary School have expressed confusion as to why their sidewalk was not included in the project.

Miller even received a project update notice from the city in August 2019 which stated that her property was “within the project area.”

In a letter to Miller addressing this, City Manager Richard Meyers explained that “in order to prepare a grant that would be eligible for funding, the application for the project had to be specifically tied to projects that improve safety of children walking to school. One of the major criteria for funding is demonstrated incidents or crashes associated with children.”

Indeed, the Safe Routes to School project was in part prompted by testimony about safety issues.

Initial concerns about the safety of routes to Lincoln Middle School were raised in public testimony in October 2015 by a city police officer who advised the city to pay attention to the corner of South Fourth Street and Fillmore Avenue, a high-traffic area next to the middle school with no crosswalk.

In a subsequent public hearing in 2018 regarding the project, a resident mentioned seeing a student hit by a car at that very intersection, though the student reportedly continued walking from the incident.

But because this specific portion of Taylor Avenue by Harrison was not brought up as an area of concern during city council meetings or public comment, it was not included in the project, Meyers went on to explain.

While a route with safety signs and a crosswalk does exist to help navigate children to the school’s side of the street, residents have stated that children regularly use their side of the street when traveling to and from school and that the city should not wait for a child to be hurt before taking action.

Unfortunately, getting another Safe Routes to School grant for this sidewalk is not a secure option. The next chance to apply may be up to a year and a half away and the grant is increasingly competitive.

Though grants may be hard to come by, sidewalk orders aren’t the only way to get citizens to take care of their sidewalks. The city can, for instance, notify a property owner of their sidewalk being out of compliance and provide solutions – a more common strategy which has been used in the past.

Currently, there is no set method for determining how to prioritize pedestrian walkways. The city’s Transportation System Plan, a 2015 document, outlines needs for pedestrians and, while it identifies connectivity gaps in the city, it does not provide insight into safety concerns.

Cottage Grove city engineers told The Sentinel that a prioritization mechanism would go a long way in the city council and staff being able to make more informed decisions.

As luck would have it, the city has recently received a grant from Oregon Department of Transportation to create a Bike and Pedestrian Master Plan for the entire city. The plan will help establish a prioritized list of trouble spots and provide a reference point for future construction decisions — information which may influence whether to issue sidewalk orders.

As it’s a lengthy process, Stewart estimated the plan may not be ready until the end of next year.

Until its completion, then, residents on Taylor Avenue are keen on having more dialogue with the city about the reasonableness of issuing an order, finding solutions or at least being part of the bidding process.

Some residents still worry that the city’s order as a response to their concerns sends the message that citizens should not appeal to their city for help or they might suffer financial consequences.

With half a year left on the clock, residents remain hopeful the coming months will yield viable solutions.

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