Who is responsible for sidewalk repair in NJ

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Spray-painted X's mark the spots on the Highland Park sidewalks where the borough is requiring homeowners to replace the concrete walkways. The borough has begun taking holdouts to municipal court - even as a group sued the local government this week.

(Seth Augenstein/The Star-Ledger)

HIGHLAND PARK — Two years ago, a local ordinance was passed allowing the borough to compel homeowners to fix the sidewalks in front of their houses.

Hundreds of residents complied with the borough’s request, but dozens more resisted. And it's taken two years to reach a climax: this month the borough began taking dozens of homeowners to municipal court, following up on summonses.

Some of the homeowners have decided they can fight borough hall. In a lawsuit filed Monday, they charge the venture is a town-wide system of “intimidation” to do needless repairs.

“In the past two years, Highland Park has intimidated many residents into inappropriately spending their own money for inappropriate sidewalk replacements,” said Mark Oshinskie, an attorney leading the legal opposition. “But causing even more people to unnecessarily spend considerable sums for more such dubious, damaging work is unfair and destructive.”

Experts said responsibility and liability for sidewalks is a legal gray area in New Jersey. While the town says it's acting in the interest of public safety, opponents have steadfastly refused to repair what they see as a needless financial burden.

A swath of sidewalk on Grant Avenue was destroyed when a tree fell during Hurricane Sandy. Though the homeowner says he's willing to pay for the fixes, the borough replacement program hasn't reached this part of town yet, officials say.

The ordinance passed into local law in 2012

required all homeowners to care for and maintain their sidewalks

. Local officials now mandate sidewalk slabs with a ¾-inch or greater lift to be replaced. In March 2012, borough inspectors scrutinized every foot of walkway in the town – and found that 1,244 homeowners had unsafe sidewalks. Local officials left spray-painted X’s marking the problem sidewalks. The town then sent follow-up letters, demanding fixes, while offering the homeowners to take part in a town-wide replacement program. Of the 1,244 homeowners, 490 took part of the program and made the fixes, said Stacy Kaplan, a borough spokeswoman.

Follow-up inspections of the remaining 754 who did not take part in the program have begun – and so far 81 residents have been issued a summons, officials said. Thirty of those summonses have been paid – but the remaining cases reached municipal court this month. Thirty-four violations were heard on Aug. 5, which resulted in 22 cases getting a 60-day extension, eight guilty pleas, and four dismissals, officials said.

The cost of a 4-by-4 foot replacement concrete slab ranges from $200 to $300 when done through the borough's program, local officials said.

The first-offense fines for the first homeowners found guilty in municipal court is $139, officials added.

The five plaintiffs in the legal challenge to the borough’s sidewalk program claim that the sidewalk problems were created by tree roots – most of which are on public property, said Oshinskie, the attorney.

“Living next to a public tree with vigorous roots is simply not a reasonable basis for penalizing someone by making them replace, at great cost, a sidewalk that anyone can use,” said Oshinskie.

Mayor Gayle Brill Mittler, who was a councilwoman at the time the sidewalk program was implemented, said officials were responding to complaints from elderly citizens who said the walkways had grown dangerous. Since Highland Park is such a "walkable town," the local government needed to be proactive, she said.

Scott Luthman, director of code enforcement, marks an "X" on the pads that need to be replaced by a resident on Wayne Street, as the borough-wide program began in 2012.

"It became really important to guarantee their quality of life," she said. "It's not anything we did to punish homeowners."

The town has the legal option to compel homeowners to fix the sidewalks in front of their homes, said Ed Purcell, a staff attorney with the New Jersey State League of Municipalities.

However, the Highland Park case is unique because of its ambitious scope, the attorney added.

“The novel part is the enforcement,” said Purcell.

Some residents who have complied with the borough program said they nonetheless balked at the program because of the way in which it was presented.

“I wish they had made a suggestion – instead of just making a demand,” said Donald Corr, a school psychologist who spent a few hundred dollars to replace part of his sidewalk. “It was startling, to see the X’s on the sidewalk, and get the letters.”

The sidewalks have been fundamentally changed throughout town, Corr said. As he walks his dog, he said, he sees entire swaths that are bright and have been replaced in the last year.

A sidewalk outside Highland Park Borough Hall -- and adjacent to a handicapped parking space -- is in violation of the borough's code. The slabs have risen to a lip of 1.4 inches -- nearly double the 0.75 inches that is the standard. Officials say the slab will be fixed -- and that the problem was caused by severe weather over the winter, the mayor says.

David Bell, who lives on Grant Street, has been waiting for two years to replace his sidewalk. A pin oak that was in the area between the sidewalk and the street was toppled during Sandy, its roots tearing up the sidewalk. In the aftermath of the storm, Bell immediately agreed to take part in the sidewalk repair program. But since then, the slabs are still left there, and two cones delineate a lumpy patch of earth where the sidewalk is interrupted.

“I’m going to take care of it – I just haven’t heard from them,” Bell said last week.

Even the town is not in compliance with its own laws. A sidewalk is raised 1.4 inches at the corner of borough hall – nearest a handicapped parking space, according to a measurement made Aug. 8.

The mayor said the offending slab was put out of compliance during the severe winter weather -- and the borough would be fixing it once the program reaches that part of town.