Understanding Municipal Rights-of-Way: From Centerline to Edge (Part 2)

In my prior blog post, I discussed right-of-way fundamentals and the use of rights-of-way for travel. This post will cover sidewalks, street trees, and the areas near the outer edge of the right-of-way. In a subsequent post (Part 3), I will cover utilities, franchises, and right-of-way use permits.

Sidewalks and Parking Strips: Who is Responsible for What?

The topic of sidewalks can be a source of confusion because it is an area of overlapping responsibility. On the one hand, the general municipal duties with respect to rights-of-way apply to sidewalks: municipalities are responsible for maintaining sidewalks and repairing defective conditions when they have actual or constructive notice (Millson v. City of Lynden).  On the other hand (Birdsall v. Abrams), municipalities may adopt ordinances requiring abutting property owners to maintain sidewalks and keep them free of snow, ice, and fallen leaves (see Figure 1).

 Figure 1: Tree leaves littering sidewalk

In addition, there are statutory options for municipalities to require abutting owners to construct and repair sidewalks (see MRSC’s Sidewalk Construction, Maintenance and Repair topic page for more information).

A municipality’s ability to transfer sidewalk duties to abutting owners is limited, however. In Rivett v. City of Tacoma, the Washington Supreme Court struck down an ordinance that purported to make it illegal for abutting owners to allow dangerous sidewalk conditions to exist regardless of whether the abutting owner caused the condition. The ordinance was found to be unreasonable and unduly oppressive.

Abutting property owners may be liable if they cause or contribute to a sidewalk defect. Under the “special use doctrine,” abutting owners who make special use of the sidewalk have a duty to ensure they don’t create unsafe conditions for pedestrians. For example, in Stone v. City of Seattle, the court ruled that an abutting owner may be liable when the sidewalk defect was caused by its tenants repeatedly driving over the sidewalk due to a narrow driveway. This result did not exonerate the City—it too was liable for failing to cure a sidewalk defect.

Unlike sidewalks, which are intended primarily for pedestrian use, parking strips have multiple purposes and often contain items such as utility poles, fire hydrants, and landscaping. Although it is foreseeable that parking strips may be used by pedestrians, they are not required to be maintained in the same condition as sidewalks (Hoffstatter v. City of Seattle).

Trees in Planter Strips (“Street Trees”)

Trees can make streets feel park-like, but they also require maintenance and give rise to legal duties (see Figure 2). The traditional rule is that since a right-of-way is an easement, the abutting property owner may plant, maintain, and remove trees in the planter strip and a municipality cannot remove such trees unless they are a hazard or a nuisance (Shaw v. City of Yakima).

 Figure 2: Roots from trees on property line damaging sidewalk; tree in planter strip

However, the rules for planting and maintaining street trees have evolved over time. Nowadays, municipalities frequently regulate pruning and maintenance of street trees and require a permit for their removal. Here are links to examples of such regulations from Edmonds and Grandview. In addition, many jurisdictions require abutting owners to plant and maintain street trees in connection with development.

Finally, while it is common for municipalities to require abutting owners to maintain street trees, there are instances in which city crews will maintain street trees, such as in a historic areas or central business districts. With respect to liability for street trees, it is difficult to generalize but two questions seem relevant: (1) who planted the tree, and (2) who is responsible for maintaining it?

There is a lot of information about approaches to street tree regulations and plans on MRSC’s Street Tree topic page.

On the Edge: Where Right-of-way Meets Abutting Property

Most rights-of-way are 60-feet wide and street improvements often do not take up this entire width. Let’s call the outermost portion of the right-of-way the “fringes.” Since municipal street right-of-way is usually an easement, what happens in the fringes?

According to Nystrand v. O’Malley, the fringe area may be used by the abutting property owner “in any manner not inconsistent with the easement in the public for street purposes.” An abutting owner can therefore maintain the fringes and otherwise use it so long as the use is compatible with the city’s existing and planned future use of the right-of-way.

However, if an abutting owner plants trees in the fringe that causes root damage to a sidewalk (see Figure 2), the owner can be liable for sidewalk damage and injuries (Rosengren v. City of Seattle). Similarly, permanent structures or retaining walls in the fringe are likely not consistent with the public’s interest in the right-of-way, and additionally, may be violating setbacks.

 Figure 3: A fence beyond the property line

With respect to fences (see Figure 3), some jurisdictions appear to tolerate them in the fringes. However, some cities, such as Shoreline, require permits for fences, retaining walls, terracing, and other features.

Please stay tuned for Part 3 of this blog series when I look at utilities, franchises, and right-of-way use permits!

Questions? Comments?

If you have questions about rights-of-way or other local government issues, please use our Ask MRSC form or call us at (206) 625-1300 or (800) 933-6772. If you have comments about this blog post, please comment below or email Oskar at orey@mrsc.org.