City mulls sidewalk, right of way issues in east Sidney development area

A smaller right of way along portions of the Toledo St. extension—soon to be Pole Creek Crossing—and Greenwood Rd. will make for some inconsistency in sidewalk placement.

The city previously requested an extra seven feet of right of way from landowners along the Pole Creek Crossing extension as well as along the area slated for improvement on Greenwood Rd. The city is usually granted 80 feet of right of way for streets.

Because Toledo St. and Greenwood Rd. are former county roads which were incorporated into Sidney, the city only has 66 feet of right of way. The city requested that landowners along the route to make up the difference to allow ample room for safe sidewalks and underground utilities which must be placed within the road’s right of way.

Seven of the 11 landowners along the east side of Greenwood Rd did not donate the right of way while three of the owners on the north side of Pole Creek Crossing also declined to donate the right of way.

Although the city council had discussed treating those who donated the extra ground differently than those who did not, the council did not take any such action at Tuesday’s meeting. The council had previously discussed the possibility of requiring those owners who didn’t gift the extra right of way to install their own sidewalks.

City attorney J. Leef highlighted some issues with this possible plan. She found several Nebraska court cases that went to the U.S. Supreme Court which make it clear that it is the city’s duty to ensure the public has reasonably safe conditions for travel.

“I think it opens us up to some liability if we were to do that and not get the sidewalk put in,” Leef said.

Charging some residents for the sidewalk while providing it for others would also pose problems, she pointed out. This wouldn’t violate state statute or local ordinance but it could clash with the 14th amendment, which guarantees citizens equal protection.

“We can’t treat some citizens differently than other citizens,” Leef said.

When the city created the street improvement districts it stated that the roads were for the general benefit of the public. Unless this language was changed, the city would be running afoul of the 14th amendment if it treated some along the routes differently than others, in Leef’s opinion.

Those who donated the right of way should be treated differently, opined councilman Mark Nienhueser. Those who chose not to donate the extra space caused an irregular right of way along the roads.

“I don’t know,” Nienhueser said. “It just felt to me that the folks that were good enough to donate their right of way to the project for the benefit of both the city and their property should fall under that consideration, but for those who decided not to contribute to that, why should they be treated the same?”

Leef agreed that this was a good argument, but the city would have to change the street improvement district to allow this.

“It would have just been nice for continuity to have that sidewalk back away from the curb on that arterial street from a safety standpoint,” Nienhueser said. “Now you’re going to crowd the sidewalk closer to the back of the curb and it’s not the safest situation on that.”

The sidewalk in the areas where the right of way was not granted to the city will be seven feet closer to the road than the areas where the right of way was granted.

In the road plans, the city had to shift many of the utilities to the side of the street with the wider right of way.

Councilman Roger Gallaway wondered if the current plan would work, or if the city should be concerned about consistency along the length of the streets.

“We’ve made it work in the plans that we bid out,” said city manager Gary Person. “We didn’t have any other choice because we didn’t have the right of way.”

Condemnation of this land would be very time consuming and city needed to get street construction underway, especially with all the new development going on in the east Sidney area.

“I understand the explanation, I just think it’s unfortunate that we’re not consistent in how we develop it from one end to the other,” Gallaway said.

The city’s current plan for the sidewalk is a 13 foot green space between the road and the sidewalk where the right of way was granted and a seven foot space where it was not.

This summer the city will employ a college student to do a sidewalk assessment on every sidewalk in town. By the end of the season, the council will receive a full report. This study will determine which properties have no sidewalks and which are deficient. After that the council will have to decide what to do with this information.

Responsibility for installation and maintenance of sidewalks, if not an arterial street for the good of the public, is the landowner’s and not the city’s.