Cracks in the pavement

Missoula's sidewalk debate runs both ways

| August 15, 2013

Here is how nice Missoula is: The most consistently divisive issue in city politics is who should pay for sidewalks. This controversy has dwarfed even the urban chicken debate. While other cities mull bankruptcy and default on their pension plans, Missoulians grapple with how to divide the cost of fixing pedestrian walkways.

That doesn't mean feelings run any less strong. Consider Robert Hubble, who in late July filed a lawsuit in U.S. District Court alleging that by making him pay to replace the sidewalk in front of his Beckwith Street home, the city violated his Fifth Amendment rights.

It's possible the founders did not anticipate Hubble's problem, and his claim that Missoula has wielded its "police powers" to seize his property is somewhat dramatic. But the city has certainly caused him a lot of trouble with his sidewalk.

In July 2011, Public Works replaced the sidewalk in front of Hubble's home as part of a block-long improvement project. It also built a curb across the bottom of his asphalt-and-gravel driveway. Officials initially said they would replace his driveway, but then Public Works withdrew that offer on the grounds that the original driveway was too narrow to satisfy municipal code. Shortly thereafter, the city presented Hubble with a bill for $4,000.

Hubble's complaint argues that the city had no right to bill him for sidewalk repairs in front of his house "without conducting the required analysis of the benefit to Hubble." He also alleges that the concrete was poured improperly, which might shock anyone who arrived in Missoula within the last 48 hours. The paved surfaces in this town look like a birthday present your kid wrapped himself.

These are interesting legal issues, by which I mean extremely boring legal issues that touch on such exciting concepts as building codes and the consistency of concrete. What I am really interested in is what Hubble's lawyer told the Missoulian last week:

"We don't quibble with [the city's claim that replacing sidewalks improves air quality,]" Quentin Rhoades of Sullivan, Tabaracci and Rhoades said. "But it's a means to improve air quality for the entire community. ... They shouldn't go around and expect individual homeowners to foot the bill for things that the city thinks will benefit the entire community."

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That is an absolutely valid argument from Hubble's perspective. Why should he pay for some project to help the whole town? The city wanted a new sidewalk in front of his house, not him. If it's their decision to fix it, it shouldn't be his responsibility. And if he is responsible for the sidewalk in front of his house, he should decide when it needs fixing.

From the perspective of 68,000 people living together in a valley, however, Hubble's argument does not make sense. Each of us pays for improvements to the community that we do not individually enjoy. I keep giving money to schools and the police department, even though I have no children and nothing worth stealing. Fines from my various traffic citations pay for city stoplights, even though they don't benefit me when I'm waiting at them.

This sort of unfair imposition on the individual for the benefit of the community is called the social contract, and historically it has worked well for us. The difference is that most people contribute to the well-being of us all a few dollars at a time, whereas Hubble got a bill for four grand.

So here lies the dilemma for we good people of Missoula. The city is growing. It would be nice to walk the streets without twisting our ankles and dashing ourselves on frozen lakes. It would also be nice to keep taxes low, and it would be super if the city could do that without, as Hubble put it, "running roughshod over the people of Missoula in a self-righteous, pitiful and unprofessional way."

Everybody wants to go to heaven, but nobody wants to die. Like the two incontrovertible truths that we should all have nice sidewalks and the city shouldn't obliterate anybody's driveway, those ideas are fine in principle and present problems in practice.

I don't know what is the right thing to do in Hubble's case, because it brings into conflict two of the defining principles of Missoula: We're all in this together, and we've all agreed to leave one another alone. What we have here is a libertarian community. It's kind of a contradiction in terms.

I do know that this problem is going to keep arising as the city expands. More Missoulians means more people to look out for, and so anything that benefits the whole community is necessarily more worthwhile. It means higher property values for people like Hubble, and probably more instances where the individual is asked to sacrifice for the group.

Whether we do that fairly or unfairly will test both the skill of our government and the values of our community. Maybe in the case of Robert Hubble's driveway, both sides have failed.

Dan Brooks writes about politics, culture and lying at combatblog.net.

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Improvements that benefit the community shouldn't be charged to individuals, but to all taxpaying residents of the city.

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Posted by Pachistima on 08/20/2013 at 4:29 PM

Welcome to the City of Missoula where the Communitarian law reigns! All the mob for the mob! And they, the mob, rule against the "one". Where the mob mentality is at liberty to mandate that government uses it's power to enforce the "mob rule". All in a country where(supposedly) no one is above the Law, government included. Where the majority/mob rule is trumped by the LAW. And that doesn't mean "statutes".

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Posted by niam on 08/15/2013 at 12:11 PM
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