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Kingsport to consider banning structures on public right of way

Matthew Lane • Nov 5, 2019 at 9:07 AM

KINGSPORT — The Board of Mayor and Aldermen will consider a change to city code tonight that will — for the most part — prohibit temporary or permanent structures placed on the public right of way.

The amendment will directly impact the Ballad Health protest that's been taking place across the street from Holston Valley Medical Center for more than 180 days. For more than four months, the protesters have used a number of canopies for shelter, placed on the right of way, in the grassy area between the sidewalk and East Ravine Street.

The change to city code will be considered during the Board of Mayor and Aldermen's regular meeting tonight at city hall. The meeting begins at 7 p.m. If approved, the change would require a second vote (most likely in two weeks) and take effect 10 days afterward.

Violators could be fined $10 to $50 each day.

Dani Cook, who has been leading the Ballad protest since its inception back in May, said the timing of this measure is suspect and believes the case law cited in the amendment is not applicable to the protest.

“Myself and the other members of our protest are considering this a violation of our First Amendment rights and will treat it accordingly,” Cook said.

A CHANGE IN CODE

This proposed amendment to the city’s code of ordinances deals with encroachments, structures or objects on or in the public right of way. The amendment states these items:

- Have a detrimental effect to the aesthetic appearance and natural beauty of the city.

- Can cause damage to the public right of way.

- Can hinder the maintenance of the surface of the public right of way.

- Can endanger the public safety.

“We’re talking about mainly the area between the street and the edge of the sidewalk,” City Attorney Mike Billingsley explained. “This will govern that and it gives the city the authority to remove some items if left unattended or seek a penalty in city court for violations.”

QUESTIONS FROM THE BMA

Members of the Board of Mayor and Aldermen asked some questions about the proposed change, whether it included the sidewalks downtown, if benches and flower pots on the sidewalk would be affected and if residents could place structures on the right of way.

Sidewalks would be included, with Billingsley noting that all downtown sidewalks are already owned by the city. Any benches, flower pots or trash cans located there would fall under this amendment.

Alderwoman Jennifer Adler said the city may need to think of an exception for these downtown items. Billinglsey said the city could set up a permitting process and noted some of these items could fall under a different, existing ordinance dealing with trees and shrubs.

“Under current code could I as a homeowner store something on the right of way now? Like a tote or a play house?” Adler asked.

“You’re allowed to use the right of way if it’s your land and does not interfere with the city,” Billingsley said.

However, other members of the Board of Mayor and Aldermen quickly pointed out in this discussion how landscaping, fencing and driveways could be removed from the right of way if the city needed to perform utility work, such as installing a new sewer line.

Finally, the discussion turned to First Amendment rights, with Adler asking if this amendment includes an exception for the exercise of your rights under the First Amendment. Billinglsey said it does.

If a structure facilitates free speech, then it’s allowed, Billingsley said, citing a court case where a table was used to distribute leaflets. The court ruled the table was allowed. However, the chairs the people were sitting in while distributing the information were not allowed.

“The government has a right to maintain its property and the property it uses,” Billingsley said. “You do not have a constitutional right to put a structure in the right of way. The idea is the structure doesn’t remain, but the person could remain as long as they want to.”

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