City of Missoula Broke Constitutional Limits When Charging Homeowner for Sidewalk Repairs, Lawyer Argues
An argument over who should pay for an expanded sidewalk and other damages has resulted in a lawsuit against the city of Missoula. The suit, filed on July 29 in U.S. District Court argues that Robert Hubble should not be required to pay the $4,001.82 bill for the replacement of his sidewalk, a sidewalk that his lawyer claims was fully functional and only a few inches shorter than it is now after the city replaced it.
Hubble's lawyer Quentin Rhoades argues that the tiff between the Hubble family and the city of Missoula is an example of deprivation without due process, and that the city never properly evaluated the cost and benefits to Hubble before sending him the bill.
Rhoades also notes that the city replaced the sidewalk to improve air quality and that this claim makes the charges against his client unreasonable, because the intended benefit was not specifically to his client, but to the community as a whole.
"It seems like fairness would dictate that if you're going to benefit the entire community you should ask the entire community to fit the bill, to shoulder the burden of those benefits," Rhoades said.
Furthermore, the lawsuit also claims the city failed to replace Hubble's private walkway (from sidewalk to front porch) correctly, leaving an indentation that gathers water and creates ice in the winter. Rhoades says that before the lawsuit, the city rejected multiple requests to fix the problem.
"We tried," Rhoades said. "We spent a couple years exchanging letters with the city attorney's office trying to persuade them that, while they do have the power to do what they've done here - they've got an easement that they're allowed to improve, and they've got other statutory powers that they are allowed to use to force people to do this - [but] they can't force [the Hubbles] to pay for it."
The Hubbles say they dealt with multiple difficulties throughout the process including a damaged water sprinkler system, a private walkway that now collects water and forms ice in the winter, and a long period of time in which their driveway was inaccessible and unusable. The basic argument though is that the city has breached the Fifth and Fourteenth Amendments to the U.S. Constitution.
"The Constitution of the U.S., and the state of Montana for that matter, in our point of view, requires them to pay for it. If they're going to make an improvement that benefits not the local property, because it already has a serviceable sidewalk, but benefits the entire community because it serves a public policy goal that you happen to have, then you pay for it... that is the community [should pay for it]."
On top of the constitutional breach, Rhoades says the city has treated his clients with an "almost mocking" attitude. The Hubble's personal walkway (see picture above) now becomes a slipping hazard in winter, which Rhoades says the city is refusing to repair.
"We complained to the city about that, asking them to come back and fix that, and they just said 'well, you're obviously not shoveling your snow well enough.' That is just very frustrating and frankly offensive it seems to me. Even if you think you have the power to do this, you can't come in and damage someone's property. And if you do, you know, you're representing the whole city... go and fix it. Don't be so cavalier and almost mocking in your response to the fact that this is a dangerous situation for these folks and they have to deal with this every winter. They're worse off than they were before the sidewalk was installed."
A picture of the sidewalk before work was finished can be seen below.
Rhodes says that scores of Missoulians have been directly billed by by the city unfairly. A final decision on the lawsuit is expected within the next twelve months.