Ordinance Amendment: Abutting Property Owner Liability for Defective SidewalksCity of Dubuque
City Council Meeting
Action Items # 04.
Copyrighted
July 1, 2024
ITEM TITLE: Ordinance Amendment: Abutting Property Owner Liability for Defective
Sidewalks
SUMMARY: City Manager recommending to adopt an amendment to correctly state
Iowa law for Ordinance Section 10-1-2: Sidewalk I nstallation and Repair
deleting liability of the abutting property owner for failure to repair
sidewalks.
ORDINANCE Amending City of Dubuque Code of Ordinances Section
10-1-2: Sidewalk Installation and Repair Deleting Liability of the Abutting
Property Owner for Failure to Repair Sidewalks
SUGGESTED Suggested Disposition: Receive and File; Motion B; Motion
DISPOSITION:
ATTACHMENTS:
Description Type
MVM Memo City Manager Memo
Memo Staff Memo
Ordinance Ordinance
THE CITY OF
Dubuque
DUB TEE1.
All -America City
Masterpiece on the Mississippi
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TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Ordinance Amendment: Abutting Property Owner Liability for Defective
Sidewalks
DATE: June 26, 2024
Senior Counsel Barry Lindahl is recommending City Council adopt an amendment to
correctly state Iowa law for Ordinance Section 10-1-2: Sidewalk Installation and Repair
deleting liability of the abutting property owner for failure to repair sidewalks.
The current language was adopted by the City Council based on an Iowa City ordinance
following the opinion of the Iowa Supreme Court in Madden v. City of Iowa City, 848
N.W.2d 40 (2014) which upheld the liability of an abutting property for sidewalks
defects.
In Splittgerber v. Bankers Trust Company, N.W.2d , decided June 14, 2024,
the Iowa Supreme Court overruled Madden "to the extent it permitted the imposition of
sidewalk maintenance duties and liability beyond what the legislature has expressly
authorized in Iowa Code 364.1(2)." Although that section of the Iowa Code does provide
for liability for failure to promptly remove ice and snow from sidewalks, it does not
provide for liability for other sidewalk defects.
The attached ordinance amends Section 10-2-1 removes the liability language.
The City still has the authority to require the abutting property owner to make repairs to
sidewalks and to assess the cost to the property owner if the City makes the repairs.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Mic ael C. Van Milligen
MCVM:sv
Attachment
cc: Crenna Brumwell, City Attorney
Cori Burbach, Assistant City Manager
Barry Lindahl, Senior Counsel
Gus Psihoyos, City Engineer
THE CITY OF
DUB E
Masterpiece on the M,4sissippi
BARRY A. LINDAH[L,1[,B`6aQ.
SENIOR COUNSELI
MEMO
To: Michael C. Van Milligen
City Manager
DATE: July 1, 2024
Dubuque
AEI.B®enea Cif
I
2007-2012.2013
2017*2019
RE: Ordinance Amendment: Abutting Property Owner Liability for Defective
Sidewalks
City of Dubuque Code of Ordinance 10-2-1(B) provides in part:
B. Duty Of Abutting Property Owner To Maintain: The abutting property owner must
maintain the area from the back of the curb to the right of way line, and must keep such
area in a safe condition free from defects, debris, nuisances, obstructions or any other
hazard. The abutting property owner is liable for damages caused by failure to maintain
such area. The abutting property owner must maintain such area in a safe condition, in a
state of good repair, and free from defects. The abutting property owner is liable for
damages caused by failure to maintain such area. Notwithstanding the obligations
imposed hereunder, the property owner may not remove diseased trees or dead wood or
plant, trim, remove or treat any tree or plant material on public right of way without first
obtaining a permit from the city forester. (Ord. 57-14, 9-2-2014)
The italicized language was adopted by the City Council based on an Iowa City ordnance
following the opinion of the Iowa Supreme Court in Madden v. City of Iowa City, 848
N.W.2d 40 (2014) which upheld the liability of an abutting property for sidewalk defects.
In Splittgerber v. Bankers Trust Company, N.W.2d , decided June 14, 2024, the
Iowa Supreme Court overruled Madden "to the extent it permitted the imposition of
sidewalk maintenance duties and liability beyond what the legislature has expressly
authorized in Iowa Code 364.1(2).° Although that section of the Iowa Code does provide
for liability for failure to promptly remove ice and snow from sidewalks, it does not provide
for liability for other sidewalk defects.
The attached ordinance amends Section 10-2-1 removes the liability language.
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-41131 FAx (563) 583-10401 EMAIL balesq@cityofdubuque.org
The City still has the authority to require the abutting property owner to make repairs to
sidewalks and to assess the cost to the property owner if the City makes the repairs.
I recommend that the attached ordinance be submitted to the City Council for
consideration and adoption.
BAL:JLM
cc: Crenna Brumwell, City Attorney
Gus Psihoyos, City Engineer
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-41131 FAX (563) 583-10401 EMAIL tsteckle@cityofdubuque.org
Prepared by: Barry Lindahl, Esq. 300 Main Street Suite 330 Dubuque IA 52001 563 589-4113
ORDINANCE NO. 43-24
AMENDING CITY OF DUBUQUE CODE OF ORDINANCES SECTION 10-1-2:
SIDEWALK INSTALLATION AND REPAIR DELETING LIABILITY OF THE ABUTTING
PROPERTY OWNER FOR FAILURE TO REPAIR SIDEWALKS
WHEREAS, City of Dubuque Code of Ordinances Section 10-1-2 provides that
abutting property owners must maintain the area from the back of the curb to the right of
way line and the abutting property owner is liable for damages caused by failure to
maintain such area; and
WHEREAS, Section 10-1-2 is no longer a correct statement of Iowa law; and
WHEREAS, the City Council now desires to amend Section 10-1-2 to correctly
state Iowa law.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF DUBUQUE, IOWA:
Section 1. City of Dubuque code of Ordinances Section 10-1-2 is amended to read
as follows:
10-1-2: SIDEWALK INSTALLATION AND REPAIR:
A. Installation:
1. The owner of any lot or parcel in the city, that abuts upon any improved public
street that has concrete or stone curb shall, at the owner's cost, install to standard city
specifications a sidewalk along the full length of the portion of the lot or parcel abutting
the public street when said lot or parcel is developed or redeveloped or at the direction of
city council. For purposes of this subsection, "development or redevelopment" means any
improvement that creates a new parking lot, new principal structure, garage, carport,
covered deck, or covered patio on the lot or parcel or changes the footprint of the parking
lot, principal structure, garage, carport, covered deck, or covered patio on the lot or parcel.
2. Upon application and for good cause shown, the city manager may grant a full
or partial exception to the above requirement. (Ord. 44-09, 9-8-2009)
B. Duty Of Abutting Property Owner To Maintain: The abutting property owner must
maintain the area from the back of the curb to the right of way line, and must keep such
area in a safe condition free from defects, debris, nuisances, obstructions or any other
hazard. The abutting property owner must maintain such area in a safe condition, in a
state of good repair, and free from defects. Notwithstanding the obligations imposed
hereunder, the property owner may not remove diseased trees or dead wood or plant,
trim, remove or treat any tree or plant material on public right of way without first obtaining
a permit from the city forester. (Ord. 57-14, 9-2-2014)
C. Notice To Replace, Repair Or Reconstruct:
1. Whenever the city manager shall determine that the conditions of any sidewalk
as described in subsection B of this section exist, the city manager shall serve notice by
certified mail on the abutting property owner, as shown by the records of the county
auditor, requiring the abutting property owner to replace, repair or reconstruct the
sidewalk.
2. If the city manager determines that the replacement, repair or reconstruction
of the sidewalk is not practicable because of circumstances beyond the control of the
abutting property owner, the city manager may allow or require a temporary repair of the
sidewalk until such circumstances no longer exist. (2007 Code § 41-102)
D. Collection Of Costs Of Replacement, Reconstruction Or Temporary Repair By City:
If the abutting property owner who has been notified pursuant to subsection C of this
section to repair, replace, reconstruct, or temporarily repair the sidewalk shall fail to repair,
replace, reconstruct, or temporarily repair such sidewalk within thirty (30) days after the
mailing of such notice, the city manager may cause the required action to be performed
and assess the costs against the abutting property for collection in the same manner as
a property tax. (2007 Code § 41-103)
E. Installments: If any amount assessed against property under subsection D of this
section exceeds one hundred dollars ($100.00), the assessment may be paid in ten (10)
annual installments, in the same manner and with the same interest rates as provided for
assessments against benefited property under the code of Iowa. (2007 Code § 41-104)
F. Procedures For Levy: The procedures for making and levying a special assessment
pursuant to subsection D of this section and for an appeal of the assessment are the
same procedures as provided under the code of Iowa. (2007 Code § 41-105)
G. Sidewalk Inspection Policy: The city manager shall develop, with the approval of
the city council, a written sidewalk inspection policy which shall govern the repair,
replacement, reconstruction or temporary repair of sidewalks. (2007 Code § 41-106)
Section 2. This ordinance shall take effect upon publication
Passed, approved, and adopted this 1st day of July, 2024.
Attest:
�� ) -7
Adrienne Breit#elder, City Clerk
EFFECT OF AMENDMENT
10-1-2: SIDEWALK INSTALLATION AND REPAIR:
A. Installation;
1. The owner of any lot or parcel in the city, that abuts upon any improved public
street that has concrete or stone curb shall, at the owner's cost.. install to standard city
specifications a sidewalk along the full length of the portion of the lot or parcel abutting
the pubiic street when said lot or parcel is developed or redeveloped or at the direction
of city council. For purposes of this subsection, "development or redevelopment" means
any improvement that creates a new parking lot, new principal structure, garage,
carport, covered deck, or covered patio on the lot or parcel or changes the footprint of
the parking lot, principal structure, garage, carport, covered deck, or covered patio on
the lot or parcel_
2. Upon application and for good cause shown, the city manager may grant a full
or partial exception to the above requirement. (Ord. 44-09, 9-8-2009)
B. Duty Of Abutting property Owner To Maintain: The abutting property owner must
maintain the area from the back of the curb to the right of way line, and rnust keep such
area in a safe condition free from defects, debris, nuisances, obstructions or any other
hazard. Th-A a-h- 11-in , hreperty is xner is liable for dar.tiage caused by failuFe !a rr aint i
S, �a—The abutting property owner must maintain such area in a safe condition, in
a state of goad repair, and free from defects. The abbi ing prepe4y .weer in linhln fnr
dar.,age Ga user♦ by failure t...r niRtain A-rPA �ithstanding the obligations
imposed hereunder, the property owner may not remove diseased trees or dead wood
or plant, trim, rerneve or treat any tree or plant material on public right of way without
first obtaining a permit from the city forester. (Ord. 57-14, 9-2-2014)
D. Notice To Replace, Repair Or Reconstruct;
1. Whenever the city manager shall determine that the conditions of any sidewalk
as described in subsection B of this section exist, the city manager shall serve notice by
certified mail on the abutting property owner, as shown by the records of the county
auditor, requ`iHng the abutting property owner to replace, repair or reconstruct the
sidewalk.
2. If the city manager determines that the replacement, repair or reconstruction of
the sidewalk is not practicable because of circumstances beyond the control of the
abutting property owner, the city manager may allow or require a temporary repair of the
sidewalk until such circumstances no longer exist. (007 Code § 41-102)
D. Collection Of Costs Of Replacement, Reconstruction Or Temporary Repair By
City, If the abutting property owner who has been notified pursuant to subsection C. of
this section to repair, replace, reconstruct, or temporarily repair the sidewalk shall fail to
repair, replace, reoonstruct, or ternporadIy repair such sidewalk within thirty (30) days
after the mailing of such notice, the -city manager may cause the required action to be
performed and assess the casts against the abutting property for collection in the same
manner as a property tax. (007 Code § 4 1 -103)
E. Installments: If any amount assessed against property under subsection a of this
section exceeds one hundred dollars ( 100.00), the assessment may be paid in ten (10)
annual installments, in the same manner and with the same interest rates as provided
for assessments against benefited property under the code of Iowa. (2007 Code § 41-
104)
F. procedures For Levy- The procedures for making and levying a special
assessment pursuant to subseclion D of this section and for an appeal of the
assessment are the same procedures as provided under the code of Iowa. (2007 Code
§ 41-105)
G. Sidewalk Inspection Policy; The city manager shall develop, with the approval of
the city council, a written sidewalk inspection policy which shall govern the repair,
replacement, reconstruction or temporary repair of sidewalks. (007 Code § 41-106)
STATE OF IOWA SS:
DUBUQUE COUNTY
CERTIFICATE OF PUBLICATION
I, Kathy Goetzinger, a Billing Clerk for Woodward
Communications, Inc., an Iowa corporation, publisher
of the Telegraph Herald, a newspaper of general
circulation published in the City of Dubuque, County
of Dubuque and State of Iowa; hereby certify that the
attached notice was published in said newspaper on the
following dates:
07/07/2024
and for which the charge is 68.91
Subscribed to before me, a Notary Public in and for
Dubuque County, Iowa,
this 8th day of July, 2024
lic in and for Dubutlue County, Iowa.
A�OA 8� JANET K. PAPE
y Commission Number 199659
My Commission Expires
12/11/2025
Ad text :
CITY OF DUBUQUE
OFFICIAL PUBLICATION
ORDINANCE NO. 43-24
AMENDING CITY OF DUBUQUE CODE OF ORDINANCES SECTION 10-1-2:
SIDEWALK INSTALLATION AND REPAIR DELETING LIABILITY OF THE
ABUTTING PROPERTY OWNER FOR FAILURE TO REPAIR SIDEWALKS
WHEREAS, City of Dubuque Code of Ordinances Section 10-1-2
provides that abutting property owners must maintain the area
from the back of the curb to the right of way line and the
abutting property owner is liable for damages caused by
failure to maintain such area; and
WHEREAS, Section 10-1-2 is no longer a correct statement of
Iowa law; and
WHEREAS, the City Council now desires to amend Section
10-1-2 to correctly state Iowa law.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF DUBUQUE, IOWA:
Section 1. City of Dubuque code of Ordinances Section 10-1-2
is amended to read as follows:
10-1-2: SIDEWALK INSTALLATION AND REPAIR:
A. "Installation:
"1. The owner of any lot or parcel in the city, that
abuts upon any improved public street that has concrete or
stone curb shall, at the owner's cost, install to standard
city specifications a sidewalk along the full length of the
portion of the lot or parcel abutting the public street when
said lot or parcel is developed or redeveloped or at the
direction of city council. For purposes of this subsection,
"development or redevelopment" means any improvement that
creates a new parking lot, new principal structure, garage,
carport, covered deck, or covered patio on the lot or parcel
or changes the footprint of the parking lot, principal
structure, garage, carport, covered deck, or covered patio on
the lot or parcel.
"2. Upon application and for good cause shown, the
city manager may grant a full or partial exception to the
above requirement. (Ord. 44-09, 9-8-2009)
B. Duty Of Abutting Property Owner To Maintain: The
abutting property owner must maintain the area from the back
of the curb to the right of way line, and must keep such area
in a safe condition free from defects, debris, nuisances,
obstructions or any other hazard. The abutting property owner
must maintain such area in a safe condition, in a state of
good repair, and free from defects. Notwithstanding the
obligations imposed hereunder, the property owner may not
remove diseased trees or dead wood or plant, trim, remove or
treat any tree or plant material on public right of way
without first obtaining a permit from the city forester. (Ord.
57-14, 9-2-2014)
C. Notice To Replace, Repair Or Reconstruct:
"1. Whenever the city manager shall determine that the
conditions of any sidewalk as described in subsection B of
this section exist, the city manager shall serve notice by
certified mail on the abutting property owner, as shown by the
records of the county auditor, requiring the abutting property
owner to replace, repair or reconstruct the sidewalk.
"2. If the city manager determines that the
replacement, repair or reconstruction of the sidewalk is not
practicable because of circumstances beyond the control of the
abutting property owner, the city manager may allow or require
a temporary repair of the sidewalk until such circumstances no
longer exist. (2007 Code ? 41-102)
D. Collection Of Costs Of Replacement, Reconstruction Or
Temporary Repair By City: If the abutting property owner who
has been notified pursuant to subsection C of this section to
repair, replace, reconstruct, or temporarily repair the
sidewalk shall fail to repair, replace, reconstruct, or
temporarily repair such sidewalk within thirty (30) days after
the mailing of such notice, the city manager may cause the
required action to be performed and assess the costs against
the abutting property for collection in the same manner as a
property tax. (2007 Code ? 41-103)
E. Installments: If any amount assessed against property
under subsection D of this section exceeds one hundred dollars
($100.00), the assessment may be paid in ten (10) annual
installments, in the same manner and with the same interest
rates as provided for assessments against benefited property
under the code of Iowa. (2007 Code ? 41-104)
F. Procedures For Levy: The procedures for making and
levying a special assessment pursuant to subsection D of this
section and for an appeal of the assessment are the same
procedures as provided under the code of Iowa. (2007 Code ?
41-105)
G. Sidewalk Inspection Policy: The city manager shall
develop, with the approval of the city council, a written
sidewalk inspection policy which shall govern the repair,
replacement, reconstruction or temporary repair of sidewalks.
(2007 Code ? 41-106)
Section 2. This ordinance shall take effect upon
publication.
Passed, approved, and adopted this 1st day of July, 2024.
/s/Brad M. Cavanagh, Mayor
Attest: /s/Adrienne N. Breitfelder, City Clerk
Published officially in the Telegraph Herald newspaper on
the 7th day of July, 2024.
/s/Adrienne N. Breitfelder, CMC, City Clerk
It 7/7