Responsibility for the Public Part?

By Roger Huebner, General Counsel, IML
and Jerry Zarley, Paralegal, IML
(September 2004)
This monthly column examines issues of general concern to municipal officers. It is not meant to
provide legal advice and is not a substitute for consulting with your municipal attorney. As
always, when confronted with a legal question, contact your municipal attorney as certain unique
circumstances may alter any conclusions reached herein.
Most residents of single-family homes have a portion of public property that abuts their
private property. Whether it abuts from the front, one of the sides, or in the back, and whether it
is the strip of lawn between the public street and the private property line (a.k.a. the public rightof-way,
parkway, shoulder, cause-way, or berm), the sidewalk, or a combination of both,
someone has to maintain that piece of public property. Grass and weeds that get out of control
on the public lawn raise aesthetic and public health concerns. Broken, uneven, and/or slippery
sidewalks raise public safety concerns regarding injuries.

Q: Who is responsible for maintaining the public property that abuts private property?
A: Home rule municipalities in Illinois can require
, through properly enacted ordinances, the
abutting property owner/resident to cut/trim the grass and weeds on the public lawn,
but nonhome (Newton is non homerule)
rule municipalities cannot enforce such regulations.

All municipalities in Illinois, whether
home rule or non-home rule, can require the abutting property owner/resident to keep the
sidewalk clear of ice and snow. However,
no municipality in Illinois can require an abutting
property owner/resident to maintain a public sidewalk to ensure that it is even and free of cracks
or breaks.

Home rule municipalities in Illinois can require property owners/residents to cut the grass
and weeds of the abutting or fronting lawn strip that is actually owned by the municipality. This
is true whether the strip of lawn abuts the private property or is between the street and the
sidewalk that abuts the property, because no Illinois statute prohibits or limits a home rule
municipality’s ability to do so.
However, there is no statutory authority to enact and enforce such
regulations. Therefore, non-home rule municipalities cannot require residences to maintain the
abutting or fronting public lawn.

The Illinois Constitution of 1970 authorizes home rule municipalities to enact and
enforce regulations that pertain to local affairs unless that area of regulation is limited or
prohibited by statute.1 An exercise of power pertains to a home rule unit's government and
affairs where it relates to problems that are local in nature rather than state or national.2
Clearly,
whether a resident appropriately maintains that little strip of lawn fronting or abutting his or her
private property is a local concern because any potential effects from the lack of care only affects
the immediate community. However, non-home rule municipalities can only regulate on matters
where they have the specific statutory authority.3
Since no Illinois statute addresses the
maintenance of the strip of lawn fronting or abutting private property, non-home rule
municipalities cannot require the abutting resident to maintain that piece of public property, but
home rule municipalities can because it is clearly a local affair.
Pursuant to a provision in the Illinois Municipal Code,4
all municipalities have the
authority to require residents to keep the sidewalk that fronts, abuts, or surrounds their property
clear of ice and snow, or other obstructions.5
In City of Carbondale v. Brewster,
6
the City
brought a complaint against a landowner for the violation of a city ordinance enacted pursuant to
the enabling statute in the Illinois Municipal Code. The ordinance required that persons in
control of property fronting or abutting paved sidewalks either remove snow and ice from such
sidewalks or cover them with abrasive materials within 24 hours after a snowfall or freezing
precipitation. Defendant claimed, and the trial court found, that the ordinance was an
unreasonable exercise of the city’s police power, and the trial court declared the ordinance (and
the enabling statute) invalid. However, the Illinois Supreme Court determined that the ordinance
was a valid exercise of the city’s police power because the ordinance was closely related to and
in furtherance of public safety and welfare. In addition, the means chosen by the city to protect
public safety and welfare was not arbitrary or unreasonable because the burden upon the
landowner did not amount to unjust discrimination. Therefore, requiring owners/residents to
clear ice and snow from the abutting or surrounding sidewalk is a valid exercise of a
municipality’s police power.
However, municipalities cannot require residents to repair abutting or fronting sidewalks
when they are defective or dangerous. In Doak v. City of Moline,
7 a jogger who tripped and fell
on an uneven and sunken portion of a sidewalk, brought suit against the city for the injuries she
sustained. The city filed a third party complaint against the abutting owner of the property for
failing to maintain the sidewalk pursuant to a city ordinance. The ordinance required the
abutting owners of city sidewalks to maintain the sidewalk as to proper alignment, grade, and
surface. The landowner filed a motion to dismiss and, after a hearing, the trial court determined
that the city had a non-delegable duty to maintain its sidewalks, and the ordinance attempted to
place that duty on abutting landowners. Therefore, the trial court found that the ordinance was
unenforceable and granted the landowner’s motion to dismiss.
On appeal, the city argued that its ordinance was a valid exercise of its police power and,
therefore, it legally imposed an affirmative duty on the abutting landowner to maintain the sidewalk.
Citing Brewster,
8
the appellate court noted that an ordinance requiring a landowner to
remove ice and snow from the abutting sidewalk was a valid exercise of police power because
such a requirement is not disproportional or unrelated to a legitimate classification as to amount
to unjust discrimination. The appellate court noted that the time, effort, and expense of snow and
ice removal of an abutting sidewalk is incidental to the enjoyment of property. However, the
appellate court determined that the ordinance in the present case was much more burdensome.
The great expense required to maintain a sidewalk’s alignment, grade, and surface cannot be
compared to that of snow and ice removal. Furthermore, this type of maintenance is the
obligation of the municipality and it cannot be delegated. Therefore, the appellate court held that
the city’s ordinance requiring abutting landowners to maintain the city sidewalk’s alignment,
grade, and surface was unenforceable because this type of maintenance to municipal property is
the obligation of the municipality and is non-delegable.
In conclusion, all home rule municipalities in Illinois can enact and enforce reasonable
ordinances requiring their residents to keep the abutting or fronting public lawn mowed pursuant
to their home rule powers, while non-home rule municipalities cannot enforce such regulations
because they do not have the statutory authority to do so. However, it is important that home rule
municipalities enacting such a regulation sufficiently note the purpose of the regulation within
the ordinances preamble or whereas clauses. All municipalities have the statutory authority to
enact and enforce an ordinance requiring residents to keep the abutting or fronting sidewalks
clear of ice, snow, and other obstacles. However, no municipality can require abutting residents
to repair defective sidewalks. If your municipality is considering enacting a new ordinance, or
amending an old one, with regards to the maintenance of the public property that abuts or fronts
private property, we encourage you to work closely with your municipal attorney.

1
Art. VII, Sections 6(a), (g), & (h).
2 DMS Pharmaceutical Group v. County of Cook, 345 Ill. App. 3d 430, 803 N.E.2d 151, 280 Ill. Dec. 921 (1st Dist.
2003); appeal denied, 208 Ill. 2d 535, 809 N.E.2d 1285, 284 Ill. Dec. 339 (2004).
3
Art. VII, Section 7.
4
65 ILCS 5/1-1-1 et seq. (West 2002 & Supp.).
5 65 ILCS 5/11-80-13 (West 2002).
6
78 Ill. 2d 111, 398 N.E.2d 829, 34 Ill. Dec. 838 (1979); appeal dismissed, 446 U.S. 931, 100 S.Ct. 2145, 64 L.Ed.
2d 783 (1980).
7
323 Ill. App. 3d 597, 753 N.E.2d 544, 257 Ill. Dec. 349 (3d Dist. 2001); appeal denied, 198 Ill. 2d 589, 766 N.E.2d
239, 262 Ill. Dec. 619 (2002)
Illinois City council did not read this guide before the last codebook update.