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Is the city in violation of its own charter installing new sidewalks in University Hills?

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Posted on: January 6, 2016

BY REBECCA BENNETT — Whether or not the city was violating its own charter by installing sidewalks on some University Hills streets came up during the discussion of an updated draft sidewalk policy at the Dec. 4 Hyattsville City Council Meeting.

According to Article VII of the Hyattsville City Charter, the city has control of the public rights of way and the city can do whatever it deems necessary to maintain those public rights of way in good condition.  The charter says the city can “grade, lay out, construct, reconstruct, pave, repave, repair, extend or otherwise alter sidewalks on city property along any public way or part thereof.”

Article VIII of the charter is titled “Public Way and Sidewalk Improvements,” and under Section 1 — titled “Written approval from property owners required prior to permanent improvements; exceptions” — it states that the city council is required to get written approval from 50 percent of the property owners before installing sidewalks.

The City Council is hereby empowered and authorized to construct roadbeds, sidewalks, curbs,gutters and street and alley improvements, or any or all, in the City, in such cases as it may determine the same to be necessary for the public benefit, and for the benefit of the abutting land and of the owners of such abutting land, provided that, before any permanent street, sidewalk, curb and/or alley improvements shall be made under the provisions of this section, the City Council shall obtain from more than fifty percent (50%) of the property owners of record abutting upon such street, sidewalk, curb and/or alley their written approval of such permanent improvement and/or improvements; provided, however, that where there is a gap not exceeding one (1) block in length in the permanent paving of a street and such street is permanently paved for at least one block distance in each direction from such gap, no written approval of any property owners need be obtained for the construction by the City Council and assessment of the costs thereof under this Article of a permanent roadbed, curbs and gutters in such gap to connect the aforementioned permanently paved portions of such street.

City Attorney Richard Colaresi said the city only needs fifty percent approval from property owners if the property owners are expected to pay for he improvements with a tax assessment.  He said governments exists for a very long time and code inconsistencies frequently happen.  “The legal principles involved are where there are two sections of the code that appear to be in conflict with each other, you must read them in a way that they both apply, given the circumstances,” he said.

The city attorney said he clarified this in the draft of the new sidewalk policy:

Except as specifically authorized by the City Council as provided in the City Charter and Code all new installation of sidewalks or redesign of existing sidewalks in the public rights of way shall be paid for by general revenues and not by special assessment of adjacent property owners. In the event the City Council intends to levy a special assessment of adjacent property owners for sidewalks, the City shall follow the procedures in Article VIII of the City Charter. In all other instances Article VII of the City Charter shall apply.

“In reading this, it appears to me that we’ve already violated our own laws,” Councilmember Patrick Paschall (Ward 3) said.

“I think we require a detailed analysis of exactly why it is that C8-1 does not apply in circumstances where we make the choice not to assess against residents,” Paschall said, but later said he does not require a report on whether or not the city violated the charter with the University Hills project.

He said he doesn’t think Article VIII only applies when the city assesses residents to pay for improvements. “I don’t see Article VIII in conflict with Article VII.  The conflict is that we didn’t obtain the 50 percent to make the improvements.”  He went on to say he didn’t like the policy of obtaining 50 percent landowner approval, but that the laws dictate they do so.

Council President Edouard Haba (Ward 4) said he feels the city should update Article VIII to include language to state it only applies when residents are levied for taxes.

The council’s executive committee will review next steps at their meeting later this week, which includes some combination of legal analysis of the existing law, the possible addition of clarifying language to Articles VII or VIII, and continuing to flesh out a new sidewalk policy.

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