Permitting for Commercial Photography in Public Parks not a Violation of the First Amendment

by Eric Christianson

Havlak v. Village of Twin Oaks

Federal 8th Circuit Court of Appeals, July 26, 2017

The Village of Twin Oaks in St. Louis County, Missouri (population approximately 400) is home to an 11 acre park with walking trails, a lake, waterfall, gazebo, and a “Claude Monet-style” bridge. This picturesque park offers a number of good backdrops for photographs. Especially after renovations and upgrades in 2011, the park became an extremely popular location for commercial photography. Sometimes as many as eight photographers and their subjects were competing for locations in the park at the same time. The large numbers of wedding parties began to dominate park facilities including using the restrooms as dressing rooms. Some photographers had subjects pose in dangerous areas or even set up outdoor studios for, “shooting multiple subjects in an assembly-line fashion.”

To limit the disruption caused by this activity to other users of the park, the local Board of Trustees erected signs notifying photographers of the previously existing ordinance prohibiting all commercial activity (including photography) in the park. They also asked the county police officer who enforces the village’s ordinances to remind commercial photographers of the ordinance and ask them to leave. Josephine Havlak a local professional photographer filed a lawsuit against the city claiming that the ordinance was a violation of her First Amendment right of free speech. She claims that commercial portraiture conveys, “an expressive message in a manner similar to the work of American portrait painter John Singer Sargent.”

In response to the lawsuit, the Board of Trustees amended its park ordinance to create a permit process for the commercial use of park facilities.  The permit costs $100 and its issuance is based on five factors including: (1) risk of damage or injury, (2) disruption of the public’s use of the park, (3) crowding due to anticipated attendees, (4) the nature of the requested activity, and (5) the time and duration requested for commercial purposes. The Board members expressed that this permitting process helped to balance the interest of commercial photographers with other park users. The permitting fee helps to fund the administration of the permit, including especially the increased burden that commercial users place on police officers. Havlak, however, was not satisfied with the permitting process and, although she has never applied for a commercial permit, amended her lawsuit to request that the permitting process be struck down as an overbroad violation of the First Amendment. The district court denied Havlak’s request, and she appealed to the Federal 8th Circuit Court of Appeals.

Courts generally permit content-neutral restrictions that place “time, place, or manner” restrictions on protected speech, but any sort of prior restraint like a required permit does draw the court’s scrutiny. A previous decision by the 8th Circuit stated that: “Any permit scheme controlling the time, place, and manner of speech must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication.” The permitting process must also contain “narrow, objective, and definite standards” The court used these elements to analyze the ordinance.

Content Neutrality Any restriction on speech that regulates content is subject to a higher level of scrutiny. The factors used to determine whether a permit will be issued by the Village of Twin Oaks do not include the content of any commercial speech. Nevertheless, Havlak claims that the higher burden on commercial photographers, restricts her message of “family, peace, tranquility, and love.” The court did not find any evidence that the Village showed any intent to discriminate against these or any other values.

Narrowly Tailored In restricting speech, courts require that laws be “narrowly tailored” to serve a significant government interest. In this case, the government interest is clearly to reduce congestion and maintain park safety. Havlak argued that the law was not narrowly tailored in four ways: (1) it applies to groups of all sizes no matter how small (2) it does not focus solely on areas with a history of congestion (3) the application period (2 days for small groups, 14 days for larger groups) could chill artistic expression, and (4) the administration fee is too high. In all four cases the court found that the law was in fact narrowly tailored to advance government interests.

Ample Alternatives Restrictions on the time place and manner of protected speech are generally allowed as long as ample alternatives are present. Havlek argued that this park is so unique that no alternative venue could possibly exist. The court pointed out that the natural attributes of the park exist throughout the St. Louis Metro Area and that Havlak had not even used this park before she knew of the ordinance despite doing hundreds of photo shoots a year.

Licensing Discretion When regulating protected speech a law must contain “narrow, objective, and definite standards” to guide the licensing authority. This is to prevent the government from having too much discretion to discriminate against speech they find objectionable. Havlak argued that the ordinance is “impermissibly vague” and that the Village has unconstitutionally broad discretion to approve or deny permits. Here too the court sided with the Village finding that the factors used to determine whether a permit would be issued are sufficiently specific to guide the issuance of permits.

In the end, the court concluded that the Village of Twin Oaks’ permitting process survives constitutional scrutiny. Despite this permitting process, Havlak remains free to express her message of family, peace, tranquility, and love.

Failure to sue the proper party proves fatal to rezoning challenge

Rita Aust, et al. v. Platte County, PC Homes L.L.C., Kelly Jo Yulich Trust, Arlene Kagan and Wendy Winer
Missouri Court of Appeals, December 29, 2015

Real Estate developer PC Homes entered into a purchase agreement with three landowners to buy their property with the purpose of developing it into a single-family community in Platte County, MO. Platte County Planning and Zoning Commission twice denied the application to rezone the property from “agricultural” and “rural estates” to “single family high density” and “planned residential.” The Platte County Commission approved the rezoning to “planned residential.”

Aust and 41 other Platte County property owners (Appellants) filed a petition in the Circuit Court of Platte County for a writ of certiorari and declaratory judgment that the Commission’s decision was illegal, unreasonable and arbitrary. They wanted the rezoning to be denied or rescinded. Platte County was the only defendant on the petition. Platte County filed to dismiss the petition on multiple grounds.

The circuit court dismissed the petition, which was followed by an appeal.

The Appellants argued that the circuit court erred in dismissing their complaints because: (1) the provided proper notice to all parties; (2) their failure to file the record of the administrative proceedings within the statutorily-required time frame was not fatal to their claim; (3) declaratory relief was available to them; and (4) they sufficiently pled a claim for injunctive relief.

In addressing the first two points on appeal, the court referenced Section 64.660. Even though Platte County is a non-charter first class county, its planning and zoning program operates under statutes of second and third class counties. Section 64.660 provides in part, that any land owners disturbed by a county commission decision may present a petition in circuit court within 30 days after the decision. The statute also provides that after the petition is presented the court should allow a writ of certiorari. The court is allowed to reverse, affirm or modify the decision brought up for review (64.660.2).

The Appellants filed the petition against the County, not the County Board of Commission. This led to the Appellants being unable to file the record within 30 days of filing their petition. The Appellants sought to include the individual Commissioners within their official capacities, they did not ask to join the Commission as a body. Because the Appellants failed to seek a writ of certiorari against the proper party under Section 64.660 and did not turn in the record within 30 days the first two points were denied.

Regarding the third point, Section 64.660 provides for judicial review of the Commission’s zoning decisions through a petition for writ of certiorari. A declaratory judgment is not available to the Appellants because the option of the legal remedy precludes declaratory relief. Point three was denied.

Regarding point four, parties are not allowed to obtain equitable relief, such as an injunction, “unless the facts pleaded in the petition show they lack an adequate remedy at law”. The Appellants did not plead any facts showing that they lacked an adequate remedy at law. Point Four was denied and the circuit court’s judgment was affirmed.

Hearing before planning commission not a ‘contested case’ under Missouri Administrative Procedures Act

by Andrea Vaage

450 N. Lindbergh Legal Fund v. City of Creve Coeur, Missouri
Missouri Court of Appeals, Eastern District, June 16, 2015

Biermann Company owned a 1.98 acre tract in Creve Coeur, Missouri. The property was located in a General Commercial zoning district, which allows assisted-living facilities as a conditional use. Biermann Company applied for a conditional-use permit for an assisted-living facility for the elderly. The Planning and Zoning Commission recommended approval of the CUP after a public hearing, and the City council later approved the permit application.

Plaintiffs sought judicial review of City of Creve Coeur’s approval of the conditional-use permit as a contested case under the Missouri Administrative Procedures Act (MAPA). The trial court dismissed the petition on its merits.  The plaintiffs appealed the decision.

The threshold question before the Court was whether the case could be tried as a contested case (versus a noncontested case) under MAPA.  MAPA  defines a contested case as “a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing.” In order for a case to qualify as contested, parties must be given an opportunity for a formal hearing with the presentation of evidence, including sworn testimony and cross-examination of witnesses.  Contested cases also require written findings of fact and conclusions of law.  The hearing must be mandated by a statute or ordinance outside the MAPA.

As per rules set out in Creve Coeur City Code 405.170, the Planning and Zoning Commission held a public hearing about the conditional-use permit for the assisted-living facility. The City Code provides no procedural requirements for the hearing. The hearing for the assisted-living facility was held on the record and those who spoke were sworn in; however, no witnesses were examined or cross-examined, no objections to evidence were made, and no formal rules of evidence were followed.  Furthermore, the hearing was held for the Planning and Zoning Commission to make a recommendation to the City Council. The City Council made the final decision for the CUP application; therefore, the hearing held before the Commission did not determine the legal rights, duties, or privileges of specific parties.

The Court found that the recommendation of the Planning and Zoning Commission could not be reviewed as a contested case, and since plaintiffs sought judicial review under the sections governing contested cases it was improper for the trial court to consider the case.  As a result, the Missouri Court of Appeals reversed the case and remanded it to the trial court with instructions to dismiss the petition for review on grounds that plaintiffs failed to state claim upon which relief can be granted.

Missouri Right-to-Farm statute upheld by Missouri Supreme Court

by Hannah Dankbar and Gary Taylor

Labrayere v. Bohr Farms
Missouri Supreme Court, April 14, 2015

Multiple landowners filed suit against Cargill Pork LLC and Bohr Farms alleging damages for temporary nuisance, negligence and conspiracy due to odors coming from a concentrated feeding animal operation (CAFO) owned and operated by Bohr Farms. The landowners who filed the complaint claimed that they lost the use and enjoyment of their property.  Neither rental value nor medical conditions were issues raised by the landowners in this case. The circuit court found that Bohr Farms was not responsible for paying damages.

In 2011 section 537.296 went into effect. This statute supersedes common law related to actions that result in an alleged nuisance coming from a property that is used primarily for crop or animal production. This statute prohibits non-economic damage recovery for items such as loss of use and enjoyment of property, inconvenience or discomfort that the agricultural nuisance caused, and allows recovery only for a diminished market value of property and documented medical costs.  Only a few days after the statute was passed Bohr Farms began their CAFO operation that can feed 4,000 hogs. Bohr owns and operates the CAFO and Cargill owns the hogs. The CAFO includes an on-site sewage disposal system as well as a system for composting deceased hogs. The plaintiffs raised seven constitutional issues. Appellants claimed that section 537.296 is unconstitutional for seven reasons.

 

Constitutional Claims

  1. Section 537.296 impermissibly authorized an unconstitutional private taking.  Plaintiffs argued that the statute, “effectively provide[s] the right of eminent domain to private companies.” The Court stated that, “The fact that private parties benefit from a taking does not eliminate the public character of the taking so long as there is some benefit to any considerable number of the public.”  A use is public if it reasonably likely to create some advantage or benefit for the public.  The Court noted that the statute did not authorize any private party to create a nuisance.
  2. Section 537.296 authorized a taking without requiring just compensation. Under the statute all nuisance claims following the initial temporary nuisance claim are to be considered a permanent nuisance. The plaintiffs claimed that this essentially grants an easement for the respondent to interfere with the full use and enjoyment of their land. The court found this argument was not ripe because the appellants were only seeking relief for a temporary nuisance in this case. The court noted that the statute specifically allowed the recovery of damages for loss in rental value of impacted property when a temporary nuisance was present.  That satisfied the constitutionally required just compensation when a temporary nuisance amounts to a temporary taking.
  3. Section 537.296 violated the plaintiffs’ constitutional right of equal protection. The plaintiffs claimed that the statute creates a suspect class of “rural landowners and residents” and therefore the statute should have to withstand strict scrutiny. Historically, rural landowners have not been oppressed and the statute benefits rural landowners who use their land for agricultural purposes, so there is no suspect class. The argument related to the fundamental right to property conflicts with the established right of the state to confiscate property to “substantially advance a legitimate state interest.” Therefore, the statute only has to withstand the rational basis test. The Court presumes the state has a rational basis for this statute and the appellants had to demonstrate a “clear showing of arbitrariness and irrationality” before the statute can be declared unconstitutional.
  4. Section 237.296 violates due process. This argument relied on a finding that a fundamental right had been violated, but the Court already determined there was no fundamental right violated.
  5. Section 537.296 violates separation of powers. The appellants claimed that the statue requiring a person to have “ownership interest” in order to have standing is a judicial decision that the legislature did not have the power to make. Nobody in this case was denied standing because of this, and none of the plaintiffs were injured as a result of this part of the statute. The court will not rule on hypothetical questions of standing.
  6. Section 537.296 violates the open courts clause. Article I, section 14 of the Missouri Constitution guarantees “the right to pursue in the courts the causes of actions the substantive law recognizes.” The plaintiffs’ asserted that the statute denied access to the court to “lawful possessors and occupiers of land”; however, the plaintiffs did not claim that the statute restricts access to the courts, so they did not have an argument to support this claim.
  7. Section 537.296 is an unconstitutional special law. Finally, plaintiffs argued that this statute “benefits only the corporate farming industry.” Article III, section 40 of the Missouri Constitution does not allow the legislature to enact “special laws” when a general law will work. Special laws, “includes less than all who are similarly situated… but a law is not a special if it applies to all of the given class alike and the classification is make on a reasonable basis.” The court said that the landowners that can take advantage of the statute could change, as could the land uses.  The open-ended classification, the Court noted, was reasonable because it advanced the legitimate state purpose of promoting the agricultural economy.

Plaintiffs argued that, according to a negligence or conspiracy cause of action, they should receive “use and enjoyment” recovery. They also argued that there are not enough facts to demonstrate that Cargill was not vicariously liable for Bohr’s alleged negligence. The statute allows people to recover non-economic “use and enjoyment” damages only if their negligence and conspiracy claims are “independent of a claim of nuisance.” The court found that Appellants’ negligence, conspiracy and vicarious liability claims were not “independent of a claim of nuisance” because those claims were dependent on the nuisance claims.

The ruling of the circuit court was upheld.

Legally sufficient hearing must allow public comment on the underlying reason for the requested zoning amendment

by Hannah Dankbar

Campbell, et al., v. Franklin County and Union Electric Company d/b/a Ameren Missouri
Missouri Supreme Court, February 3, 2015

Multiple individuals joined the Labadie Environmental Organization (LEO) to file a writ of certiorari claiming that Franklin County Commission made errors in their adoption of zoning amendments that would allow Union Electric Company to build an ash-coal landfill next to its power plant in Labadie.

The organization made two claims on appeal: (1) the commission did not conduct a legally sufficient hearing before adopting the zoning amendments that would allow the coal-ash landfill, and (2) the court erred in finding that the zoning amendments were promoting public health, safety and welfare and are therefore valid.

Ameren (the owner of the Labadie Power Plant) publicly announced the proposal to build the coal-ash landfill on the land next to the power plant. The plant is the only public utility power plant in Franklin County and the only possible location for the coal-ash landfill. LEO alleges that the chairman of the Planning and Zoning Commission told speakers at the public hearing that they could not discuss Ameren or the proposed site for the landfill, and that county officials “interrupted speakers when they attempted to discuss Ameren’s proposed Labadie landfill site…”  LEO alleges that placing limitations on what the public was allowed to speak about meant that the county had not conduced a legally sufficient hearing.

After LEO filed their petition, the court asked the county to produce records from the meeting. The county did, and the commission and Ameren filed motions to dismiss for failure to state a claim. The court dismissed the first count of LEO’s petition and determined that the zoning amendments were valid.  LEO appealed.

The Missouri Supreme Court noted that the statute does not expressly provide whether a public hearing is required, nor does it explicitly define what constitutes a “hearing.”   The Court concluded first that it would be “nonsensical” to require public notice of a non-public hearing.  The hearing, therefore, was a public hearing.

Following that is the question whether the public hearing was insufficient because the commission precluded the public from addressing Ameren’s proposed coal-ash landfill.  A dictionary definition of “hearing” is “a session…in which testimony is taken from witnesses,” “an opportunity to be heard to present one’s side of a case, or to be generally known or appreciated,” and “a listening to arguments.”  Given the plain language meaning of the word “hearing,” the Court concluded that the legislature intended for members of the public to be able to present their side of the case.  The hearing, therefore, should be conducted so that the public can address the subject matter of the proposed zoning amendments.  Assuming LEO’s allegations are true, the manner in which the hearing was conducted arguably denied the citizens of Franklin County a fair opportunity to be heard and to present their side of the case.  It prevented them from discussing the actual, underlying subject of the amendments.

The Missouri Supreme Court remanded the case to the circuit court to direct the county to hold a legally sufficient hearing.

 

Non-conforming use protections may apply to entire mobile home park, not individual home sites

by Gary Taylor

Heck v. City of Pacific and City of Pacific Board of Zoning Adjustment
Missouri Court of Appeals, Eastern District, October 28, 2014

The Hecks have operated Pacific Mobile Home Manor on the same tract of land since 1983.  Within Pacific Manor is a mobile home pad addressed as 303 South Second Street, which is positioned approximately 14 feet from the pad to its south, and the same distance from the pad to its north.  When renters moved out with their mobile home in the late 2000s, the Hecks attempted to install a new mobile home of the same size on the vacant pad around two years later.  The city of Pacific, however, informed the Hecks that the new mobile home could not be placed upon the pat unless they obtained a variance from the city code provision – adopted in 1996 – that requires 20-foot spacing between mobile homes or other structures.  Mr. Heck testified before the Board of Zoning Appeals (BZA) that he was under the impression that he already had a variance for the pad because the pad and mobile home on the pad were permitted when he bought Pacific Manor in 1983.  The ZBA voted to deny the variance, and the Hecks appealed.

The Hecks argued that Pacific Manor existed in its present configuration, including the spacing of mobile home pads, prior to the adoption of the 20-foot spacing requirement in 1996; in other words, that their legal nonconforming use applies to the mobile home park as a whole and not on a “per pad” basis.  Mr.  Heck testified “I mean I can’t really move all the trailers out and get rid of them and totally reorganize that all.  So I’m just trying to maintain the property and keep it as nice as I can.”

The city, on the other hand, argued that even if the present configuration and spacing of pads in Pacific Manor was a lawful nonconforming use, it has since been extinguished by “structural alteration” – moving the old mobile home off the pad.  Furthermore, the city argued that the nonconforming use was abandoned because the pad sat vacant without a mobile home for two years.

The Court of Appeals concluded that the BZA did not analyze the case as a nonconforming use case; rather, the BZA was simply concerned with whether the Hecks’ application met the standard for a variance.  “A nonconforming use differs from a variance.”  The Court of Appeals remanded the case to the ZBA to hear evidence on the issue of whether the Hecks are entitled to continue a lawful nonconforming use, noting that “if in fact the Hecks have continued their lawful nonconforming use of Pacific Manor, the spacing requirements [of the city code] do not apply and no variance is needed.”

Record sufficient to show council considered all CUP standards

by Kaitlin Heinen

Thomas DeBold v. City of Ellisville, MO
(Missouri Court of Appeals, August 29, 2013)

Wal-Mart was granted a conditional use permit (CUP) from the city council of Ellisville, Missouri on September 5, 2012. The CUP was valid for 12 months via passage of Ordinance No. 3083. Prior to the Ordinance, the CUP had been reviewed by the City’s Planning and Zoning Commission, the City Attorney, the City Planner, St. Louis County, and several other persons and entities. During the July 18, 2012 City Council meeting, the City introduced 27 documents, including reviews done by both City staff and outside consultants.  On September 19, 2012, Thomas DeBold filed an appeal with the City challenging the CUP, but on October 3, 2012, DeBold’s appeal was denied. The trial court found the decision to grant the CUP supported by competent and substantial evidence upon the record, which DeBold appealed to the Missouri Court of Appeals.

First, the court must “consider the ruling of the municipal agency, not the circuit court” and decide only whether the municipal agency’s decision is supported by substantial and competent evidence upon the record. DeBold argued that the trial court applied the incorrect standard of review and “failed to make the required factual findings and legal conclusions.” However, the Missouri Court of Appeals found otherwise after considering the extensive documents reviewed and the factual findings published by the trial court in their “Order and Judgment.”

DeBold also argued that the trial court erred in denying his motion for judgment. City Code Section 400.150 (B)(1) provides that, “[i]f an authorized agent or the leaseholder of the use is requesting the conditional use permit, the property owner must also sign the conditional use permit application.” DeBold claimed that Clarkchester Apartments Association (the landowner) did not sign authorization for the CUP. However, the record shows that all 8 members, who own the Clarkchester apartment buildings, signed the forms, thus satisfying Section 400.150(B)(1) and properly allowing the trial court to deny DeBold’s motion for judgment on these grounds.

Then DeBold argued that the trial court erred in finding that the application for the CUP met the requirements of City Code Section 400.150(F) and that the application was supported by competent and substantial evidence. The City countered that DeBold failed to address 13 of the 17 requirements set out in the Ordinance relating to the granting of a CUP, which thus waives any possible argument on those factors.

In regards to competent and substantial evidence on the record, the court held that there was enough to support the City Council’s decision. As for traffic conditions, the City reviewed the October 11 “Trip Generation and Distribution Technical Memo” and the March 2012 “Traffic Impact Study,” both of which showed that assumptions made on traffic conditions during and after the Wal-Mart Supercenter’s development seemed reasonable and had an overall positive impact. Additionally, the area for the development has been zoned as C-3 Commercial for many years, and the development is similar in size to existing retail centers to the north and east of the area. Also, “there was evidence that the proposed development would not negatively impact traffic, would not increase fire hazards, would increase stormwater capabilities and water quality at the site, would lead to improved utilities, would result in environmental contaminants being cleaned up, would discourage crime through the use of bright lighting, manned store entrances, and surveillance cameras, would increase the City’s revenue, and would catalyze further development within the City”—all compatible uses with the surrounding neighborhood. The City also found “that the proposed project is consistent with the City’s Comprehensive Plan and will feature many of the attributes envisioned as part of the Great Streets Master Plan.” All of this is competent and substantial evidence that the development is consistent with “standards of good planning practices” and is evidence that the proposed use of the development is both reasonable and appropriate for a commercially zoned area.

Finally, DeBold argued that the Ordinance No. 3083 (the CUP) makes no reference to some factors related to the CUP standard.  However, the certified record indicates that City considered all 17 factors required by the City Code. He also claimed that the trial court erred in holding that he failed to adequately plead procedural irregularities before the trial court. Even if he had, “he failed to identify and/or raise any procedural irregularity before the City Council.” To the contrary, “the record demonstrates that DeBold had every opportunity to raise any alleged procedural problem because every document and information necessary to do so was made available to him months before he filed his lawsuit.” (“As public records of the City, these documents were available to any member of the public, from and after the July 18, 2012, meeting.”) Rather, “DeBold has failed to exhaust his administrative remedies [in the context of review of city zoning decisions pursuant to Chapter 89] and thus is not now entitled to judicial review.”

The Missouri Court Appeals affirmed the trial court’s ruling.

Missouri Heritage Value statute declared constitutional; family awarded $2 million in eminent domain proceeding

by Gary Taylor

St. Louis County v. River Bend Estates HOA
(Missouri Supreme Court, September 10, 2013)

The Missouri Heritage Value statute (statute) was adopted by the Missouri legislature in 2006.  It provides for additional compensation for the exercise of eminent domain over homesteads, and properties held within the same family for 50 or more years.  If a property has been owned within the same family for 50 or more years, “just compensation” is determined by statute to be fair market value plus an additional 50 percent (“heritage value”), thus equaling 150 percent of fair market value.

St. Louis County condemned 15 acres of property for a highway extension project.  The property was deeded to Arthur Novel in 1904, who farmed it with his wife until their deaths in 1968.  It stayed in the family and was owned by the Novels’ descendents until the condemnation proceedings.  The condemnation court awarded the descendents $320,000 for acquisition of the property, and an additional $160,000 for heritage value, resulting in a total award of $480,000.  The descendents appealed, and at trial the jury awarded them $1.3 million, to which the court added $650,000 for heritage value for a total award of approximately $2 million (including interest).  The county appealed.  Because the challenge was to the constitutionality of the statute the appeal went directly to the Missouri Supreme Court.

The bulk of the opinion addressed numerous evidentiary and procedural issues, but the Court did eventually address the County’s  three constitutional challenges: (1) the statute impermissibly altered the judicial definition of “just compensation” by permitting the addition of heritage value to fair market value; (2) the statute requires condemning authorities (in this case, the County) to expend public funds without a public purpose in violation of the Missouri Constitution; and (3) the statutory requirement that a judge compute heritage value invades the province of the jury to determine just compensation – also in violation of the Missouri Constitution.

Definition of “just compensation.”  The Missouri Constitution declares that “private property shall not be taken or damaged for public use without just compensation.” The US Supreme Court has interpreted “just compensation” to mean the fair market value of the property at the time of the taking.  The County argued that constitutional interpretation is the province of the judiciary, not the legislature.  The Court did not disagree; noting, however, that the statute does not alter the definition of “just compensation,” but rather “provid[es] additional benefits to certain property owners whose real property is taken for public use.” It cited US Supreme Court cases that “support the proposition that a legislature may compensate losses and damages beyond those traditionally included in its interpretation of ‘just compensation.'”  “‘Just compensation’ is a minimum measure that must be paid, not a maximum one.”

Expenditure of public funds.  Missouri Constitution Article III, Section 38(a) states that the legislature “shall have no power to grant public money or property …to any private person, association or corporation….”  The County asserted that compensation payments beyond the constitutional minimum serve no public purpose and are therefore unconstitutional.  To determine whether there is sufficient public purpose behind a grant of public money the Missouri courts have employed the “primary effect” test.  This test allows expenditures whose primary object is to serve a public purpose, even if it involves as an incident an expense which, standing alone, would not be lawful.  The Court determined that the primary purpose of the expenditure was to acquire property for a public purpose, and that the payment for heritage value is merely incident to that public purpose.

Computation by judge of heritage value.  Missouri Constitution Article I, Section 26 requires that just compensation “be ascertained by a jury.”  The Court quickly dismissed this argument by noting its previous declaration that heritage value is a payment in addition to “just compensation” – not part of the just compensation calculation.

The Court upheld the roughly $2 million jury award.

BZA cannot condition permit on removal of nonconforming billboards when all criteria for granting permit are met

by Gary Taylor

Curry Investment Co., et al. v. Kansas City Board of Zoning Adjustment
(Missouri Court of Appeals, Western District, May 7, 2013)

On May 20, 2011, MLB Holdings filed an application with the Kansas City Board of Zoning Adjustment (BZA) requesting a special use permit to operate a pawn shop in Kansas City, Missouri. The landowner, Curry Investment Company, agreed to lease its building and parking lot to MLB.  The property where the building and parking lot are located contains two nonconforming outdoor advertising signs, which Curry Investment leases to CBS Outdoor. The BZA held a hearing on July 12, 2011, concerning MLB’s application. The BZA staff submitted a report at the hearing that cited the requisite special use permit criteria, and concluded that “all of these criteria are met with the proposed application.” The report also stated:

In recent years staff has had a general policy that as property is redeveloped,3 any existing billboards that are on the site are removed within five years of the approval of the development. The City Plan Commission has affirmed that position several times, specifically in the last several months . . . . Staff believes as part of the approval process for a pawn shop that this development be held to the same standard as other developments within other areas of the City.

Curry Investment opposed any condition that required removal of the signs. Ultimately, the BZA approved the special use permit subject to  conditions, including removal of the outdoor advertising signs. Curry Investment and MLB requested a rehearing. The BZA held a hearing on the request for rehearing, and the BZA thereafter denied a rehearing.

Curry appealed the BZA decision to circuit court, which found that the BZA’s decision to require removal of the two outdoor advertising signs for special use permit approval for the pawnshop was not supported by substantial and competent evidence, was unrelated to any impact generated by the pawnshop use at the property, and exceeded the BZA’s authority. The BZA then filed a notice of appeal to the Missouri court of appeals.

The BZA contended that its authority to require removal of nonconforming signs as a condition for a special use permit comes from its mandate to determine if a proposed special use complies with the standards of the Code, whether it is in the interest of the public convenience and will not have a significant adverse impact on the general welfare of the neighborhood or community, and whether it is compatible with the character of the surrounding area in terms of building scale and project design. The Court of Appeals disagreed.  The record reflected that the BZA staff examined all of the special use criteria set forth in the zoning code and concluded that “all of these criteria are met with the proposed application.” Therefore, the staff found the proposed pawn shop, in its proposed location: 1) to be in compliance with the standards of the Code, 2) to be in the interest of public convenience and to not have a significant adverse impact on the general welfare of the neighborhood or community, 3) to be compatible with the character of the surrounding area in terms of site planning and building scale and project design, 4) to be compatible with the character of the surrounding area in terms of operating characteristics, such as hours of operation, outdoor lighting, noise, and traffic generation, and 5) to not have a significant adverse impact on pedestrian safety or comfort. “While the BZA now contends otherwise on appeal, nothing in the record suggests that removal of the nonconforming outdoor advertising signs was related to any of the special use criteria set forth in the Code. To the contrary, the BZA staff stated that all of the special use criteria were met, but that sign removal was recommended based on a ‘general’ staff policy that as property is redeveloped, the removal of existing billboards is required….Once it was determined that the criteria for the special use permit were met, it was unreasonable to require removal of the nonconforming signs as a special use permit condition. While the BZA may want to foster a general policy that, as property is redeveloped, any existing billboards on a site are removed, where the BZA has proven no relation to sign removal with the special use criteria set forth in the zoning code, this policy is in contradiction to [the protection of] nonconforming signs.”

E-mail from planning department staff member after building permit issued was not an “appealable decision” regarding the permit

by Gary Taylor

BT Residential, LLC v. Board of Zoning Adjustment of the City of Kansas City
(Missouri Court of Appeals, December 4, 2012)

On July 16, 2010, the City of Kansas City issued a permit for the construction of a cellular tower to the American Tower Corporation (ATC). In early August 2010, BT Residential (BT), the owner of a neighboring property, became aware of the construction of the cellular tower after a 150-foot, steel pole was erected and contacted the City to review the plans for the tower. On August 10 representatives for BT met with members of the City Planning Department to discuss perceived violations of the Development Code. On August 17 the attorney for BT met with the Director of the Department and explained why BT believed that the building permit had been improperly issued because the cellular tower and equipment building on the property did not meet the requirements of the Development Code. On August 18 BT’s attorney sent a follow-up email reiterating his points and asking the Department to issue a stop-work order and to revoke the permit. On August 29 the attorney sent an email to another member of the Department indicating that he had not yet received a written response from the Department. On August 30 The Department member sent the attorney an email stating: “My apologies if there was any miscommunication, I intended the written response to follow once information to allow a complete response was available. We have been unable to locate the documentation related to the demonstration of need provisions, but have been in contact with the applicant and now expect receipt by midweek. We will continue to follow-up with the applicant as needed, and will provide you an update once we have confirmed compliance to those provisions.” The e-mail went on to cite the relevant provisions of the Development Code as they related to the project.  On September 3 BT filed an appeal with the Board of Zoning Adjustment (BZA) claiming to challenge “the determination of the City’s Building Official… that the permit issued to American Tower Corporation for construction of a new cell tower complies with the City’s Zoning and Development Code, Chapter 88.” ATC filed a response opposing BT’s appeal and moving for dismissal of that appeal based upon the fact that BT had not filed its appeal within fifteen days of the issuance of the building permit or within fifteen days of discovering that such a permit had been issued as required under the Development Code.  The BZA dismissed BT’s appeal, concluding that the August 30 email from the staff member of the Planning Department was not an appealable decision under the Development Code.  When BT appealed the BZA decision the trial court affirmed.

In response to BT’s claims that the August 30 email constituted an appealable administrative determination, the Court of Appeals reviewed the City’s Development Code and concluded that in order for the e-mail to constitute an appealable decision two elements must be present: (1) that the Director of the Planning Department had the authority to revoke the building permit and (b) that he delegated that authority to the staff member who sent the e-mail.  The Court determined that neither were the case.  No provision of the City Development Code grants the Director the authority to revoke a previously granted building permit based on considerations which existed at the time of the permit’s original issuance. Furthermore, even if the authority did exist somewhere in the Development Code there was no evidence in the record that such authority was delegated to to the staff member or for that matter, whether the staff member even purported to exercise such authority. While BT argued that it could be inferred from the fact that the staff member handled communication with BT following BT’s request that the permit be revoked that the Director had authorized the staff member to decide whether to revoke the permit, the BZA was not required to make such an inference. In addition, the language contained in Franzen’s e-mail could just as reasonably be interpreted as an explanation of the Director’s decision to issue the permit, as opposed to a decision whether to revoke that permit. Thus, the BZA could reasonably have concluded that Franzen’s e-mail was not an appealable decision.

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