Warrenton (MO) city building code applies to Warren County building

by Gary Taylor

Arden Engelage and Commissioners of Warren County v. City of Warrenton
(Missouri Court of Appeals, Eastern District, September 18, 2012)

The city of Warrenton is located within Warren County, Missouri.  Warren County decided to build a new county administration building on property located within the city limits of Warrenton. In 2009, when the county learned of the city’s plan, the city notified the county that, pursuant to the city code, the county must obtain and pay for various building permits from the city before commencing construction of the new administrative building. The county objected, informing the city that it would not be applying for or obtaining a building permit because it was not legally required to do so. The parties then exchanged a series of communications. Without applying for or obtaining any permits, the county commenced construction by having its contractor mobilize its equipment at the site and begin to grade the building site. The city building inspector went to the site on October 15, 2010, and issued a stop-work order because the county had begun construction and grading in violation of the city’s building and safety code. Construction did not stop.  Another stop work order was issued.  The county applied for a building permit, but also sought a declaratory judgment holding that the city did not have the authority from the legislature to require a county to comply with the city’s building code.

The Missouri Court of Appeals stated that the dispute must be resolved by looking to the intent of the legislature.  The court must construe the provisions delegating power together and harmonize them if reasonably possible to do so, looking at the plain and ordinary meaning of the language used and to give effect to that intent, if possible.  The county relied on two sections of Chapter 49 of the Missouri Revised Statutes.  Section 49.270 states, in part, that the county commission “shall have control and management of the property, real and personal, belonging to the county….”  Section 49.470 provides, in part, that the county commission has the power “to build any county buildings….”  The county argues that the city may not interfere with or regulate the duly-authorized activities of the State or any of its other subdivisions unless the state constitution or a state statute specifically and expressly grants such power or authority.

The city, in contrast, relies on the police powers granted to municipalities by Section 79.110, which reads in part “The mayor and board of aldermen of each city … shall have power to enact and ordain any and all ordinances … as they shall deem expedient for the good government of the city, the preservation of peace and good order….”  It also relies on Section 79.450.4 which gives fourth-class cities (like Warrenton) the authority to  “regulate and control the construction of buildings…and may provide for the inspection of the same.”  Under these provisions the city enacted its building code.

The Court determined that these statutes gave the city the authority to regulate the county administration building through its building code.  It found that through Section 79.450.4 “the legislature has granted cities broad authority to regulate construction of buildings generally, without qualification as to whether the building or owner is ‘private’ or ‘public.'”  The provisions cited by the county, in contrast, are “merely a mechanism to ensure that a county building is built according to the contract and the approved plans. The authority here does not speak to protecting the public’s safety.”  The court found it important that Chapter 64 of Missouri Revised Statutes gives first and second class counties control of construction by county commissions “[fo]r the purpose of promoting the public safety, health and general welfare, to protect life and property and to prevent the construction of fire hazardous buildings….”  Warren county is a third class county, which has no such general power to regulate to protect public health and safety.

The court dismissed as inapplicable five prior cases cited by the county for the proposition that cities do not have the authority to regulate counties in matters such as these.  “[In these cases the] courts were not applying some broad over-arching proposition that a city may not regulate a county absent an express grant of such authority over a county entity. Instead, the courts carefully considered the legislature’s competing delegations of authority in order to determine the scope of power one political subdivision had to regulate another.”

City granted new trial after being found liable for wrongful building demolition

by Kaitlin Heinen and Gary Taylor

Dave McNeill v. City of Kansas City, Missouri
(Missouri Court of Appeals, August 7, 2012)

In summer 2008, McNeill purchased property, containing a building that had been on the City of Kansas City’s dangerous buildings list since August 2001. McNeill notified the City of his plans to renovate the building into a multi-tenant residential building. He began various renovations, but the work on the building stagnated when McNeill’s bank backed out of a construction loan.

In June 2009, the City sent a letter to McNeill instructing him to remove some debris sitting on the property and some weeds  The city requested a meeting with him. McNeill complied with the cleanup request. On June 24, 2009, McNeill met with City Inspector Smith and Codes Enforcement Supervisor Parks, who was filling in for Crider, the Codes Enforcement Supervisor regularly assigned to that file. McNeill explained his plans for continued renovation and that he would obtain more funding soon. Smith and Parks agreed to allow McNeill more time. They also ordered McNeill to remove more debris from the side of the building, so McNeill hired a contractor to remove the debris and grade the yard in July 2009. McNeill notified Smith and Parks of the completed work on July 20. On July 31, McNeill received preliminary commitment for another construction loan.

On August 8, 2009, the City demolished the building without contacting McNeill, disregarding the policy of the Dangerous Buildings Division to send the property owner a pre-demolition notice. Crider had recommended the demolition based on records on file, which included neither Smith and Parks’ notes from June 24 indicating their promise to McNeill for more time, nor a record of McNeill’s July 20 phone call.  The City subsequently sent McNeill a bill for the demolition.

On August 7, 2010, McNeill filed a petition, claiming the city wrongfully demolished his building. The trial’s jury returned a verdict in favor of McNeill’s claim for $150,000. The City then claimed that the trial court had erroneously submitted to the jury an instruction containing a roving commission. (A ‘roving commission’ is “an abstract instruction…in such broad language as to permit the jury to find a verdict without being limited to any issues of fact or law developed in the case.”) The trial court agreed and granted the City a new trial.  McNeill appealed to the Missouri Court of Appeals.

The Missouri Court of Appeals agreed with the trial court’s conclusion that its jury instruction created a roving commission.  The Court of Appeals agreed that the instruction given to the jury as to finding whether the building was “wrongfully demolished” was too general because it did not identify the acts or omissions of the City that might be considered “wrongful.”  The Court of Appeals noted that there are no Missouri Approved [Jury] Instructions -nor is there any case law interpreting – the state statute (Section 67.450) regarding wrongful demolition. Without precedent, the protocol then is to apply the word’s “plain and ordinary meaning,” which can be appropriately found in the dictionary. The Court of Appeals found that the term “wrongful” does not need to be defined; rather the instruction should simply request the jury to find that (a) plaintiff owned a building, (b) the City demolished it, (c) that the City‟s demolition of the structure was wrongful in one or more specified ways, and (d) plaintiff was damaged as a direct result thereof. In its simplest context, the word “wrongful” or “wrongfully” “only requires the result to be incorrect, regardless of whether the City’s conduct was mistaken, careless, negligent, reckless or intentional.” The submission of the way or ways in which the demolition was wrongful will differ from case to case.

The trial court’s grant of a new trial was affirmed.  The Court of Appeals recommended that on retrial the trial court refer to Section 67.450 to establish the criteria on which the jury should be specifically instructed, and that the jury be instructed that any demonstrations of wrongful demolition must be supported by evidence.

Competing bid submitted by council member, but withdrawn before vote, does not give rise to conflict of interest

by Victoria Heldt

Eldon Bugg v. City of Boonville
(Missouri Court of Appeals, April 24, 2012)

In July 2010, the City of Boonville city council held a regular meeting at which the agenda included voting on Bill 2010-015.  This bill was to approve the Kemper Village Homes Project plan site and its developer agreements.  The council held a discussion about the project where fourteen members of the community (including Bugg) spoke in opposition to it and four members spoke in favor of it.  Councilman Hombs addressed the rumors of his conflict of interest, stating that he had previously submitted a bid for the development of the project, but that he had since withdrawn the bid and no longer had any financial interest in it.  After discussion, the council voted on the matter and was evenly split with four members voting to approve and four members voting to deny.  The mayor was called to break the tie and voted in favor of the project.  The bill was signed and Boonville City Ordinance 4216 was enacted.  Bugg filed suit in trial court arguing that the mayor was not allowed to break the tie and that Councilman Hombs did have a conflict of interest.  The trial court disagreed and ruled in favor of the City.  Bugg appealed.

Bugg first argued the ordinance’s invalidity on the grounds that the bill did not receive a majority vote from the city council.  Missouri statute §77.080 provides that no ordinance shall be passed except by a bill that receives a majority vote from the council.  Missouri statute §77.250 provides that, in the event of a tie vote, the mayor is required to cast the deciding vote so long as he/she does not have a conflict of interest.  Both parties acknowledged the existence of these two statutes, but each had a different interpretation.  Bugg argued that a tie-breaking vote is only necessary when the voting process fails to result in a decision.  He reasoned that a tie equated to a failure to pass, which is, in itself, a decision.  He therefore asserted that no additional vote was necessary.  He based his argument on the ruling in Merriam v. Chicago, Rock Island & Pacific Railway Co., in which a similar tie-breaking situation took place.  In Merriam, the Court ultimately decided that the president of the council (who cast the deciding vote) was not allowed to vote since he was not technically a member of the council.

The Court rejected this argument, noting that Merriam was decided over 100 years ago and has not been cited since.  In addition, it is inconsistent with rulings that have since been decided that pertain to the statute.  The Court also noted that the rules governing such voting processes were different during the time Merriam was decided.  The Court concluded that statute § 77.250 makes the mayor a temporary member of the council for the purpose of breaking ties.  In this case, the Mayor was acting within her duty to break the tie.  Therefore, the bill was validly passed by the council.

Bugg’s second argument was that Councilman Hombs still had a conflict of interest in the matter regardless of the fact that he withdrew his bid for development of the project before the vote.  The language of the council code reads that “every member who shall be present when a question is stated by the chair shall vote thereupon, unless excused by the council, or unless he is prohibited by section 2-108 of this Code, in which case he shall not vote.”  Section 2-108 of the code contains language restricting a council member with a conflict of interest from voting.  Bugg argued that Homb’s submission of a bid created an irreversible conflict of interest and that he should be precluded from voting on the matter.  The Court disagreed, noting the code requires all council members to be free from a conflict of interest “when the question is stated by the chair.”  In this case, Hombs did not have a conflict of interest when the matter was subjected to a vote.  Bugg next argued that Hombs failed to comply with the Code when he did not “file a written report of the nature of the interest.”  The Court concluded that, since no conflict of interest existed at the time of the vote, Hombs was not required to file any such report detailing a then non-existent conflict of interest.  The Court affirmed the trial court’s decision in favor of the City of Boonville.  Ordinance 4216 was upheld.

Missouri Court of Appeals addresses neighbor’s standing in zoning board litigation

by Gary Taylor

Underwood v. St. Joseph (MO) Board of Zoning Adjustment; Sharon Kennedy (Appellant)
(Missouri Court of Appeals, January 17, 2012)

Underwood submitted construction plans to the city of St. Joseph to obtain a building permit for a detached garage measuring 1,328 square feet. The city approved the plan and issued a building permit. Approximately three months later, however, when the structure was 80% complete, the city received an anonymous complaint about the garage and issued a stop work order because the garage actually measured 1,427 square feet. In fact, the city zoning ordinance limits the size of a detached garage to “an area no greater than 30% of the rear yard area behind the principal structure” which, based on the size of Underwood’s yard, meant that the garage could be no larger than 1,035 square feet. The city advised Underwood to either obtain a demolition permit or seek an area variance from the city board of zoning adjustment (BZA). Underwood chose the variance route.

In response to Underwood’s variance request, the city mailed certified letters to adjacent landowners (including Kennedy) notifying them of the BZA hearing on the variance request. Prior to the hearing the city acknowledged that it erroneously issued the building permit for the 1,328-square-foot design and offered to pay 76% of Underwood’s cost to downsize the garage (the portion of excessive square footage attributable to the city’s error). Also prior to the hearing the BZA received written comments from three adjacent landowners regarding Underwood’s requested variance. One of the comments was from Kennedy, expressing her opposition to the variance based upon her concern that “the garage does not fit the character of the neighborhood due to its size and construction material.” and that it “may adversely affect property values in the neighborhood.” At the BZA hearing, however, no one appeared to testify in opposition to the variance request. Nonetheless, the BZA denied the variance. Underwood filed an appeal of the denial with the circuit court. Underwood was identified as “petitioner,” and the BZA and City were identified as “respondents.” On April 4, 2011, the circuit court entered a judgment reversing the BZA’s denial of the variance and remanding the case with orders that the variance request be granted. At a second BZA hearing held May 3, 2011, the city recommended that the BZA adopt the circuit court’s findings of fact and conclusions of law. Kennedy appeared at this second hearing and argued against granting the variance request based upon her previously stated reasons. At the second hearing, the BZA adopted the circuit court’s findings and granted the variance. One week later, Kennedy filed a notice of appeal in the Missouri Court of Appeals challenging the circuit court’s judgment.

The Court of Appeals determined that Kennedy lacked standing to bring the appeal before the Court of Appeals because Missouri statute limits the right to appeal to “any party” aggrieved by a decision of a circuit court, and Kennedy was not a party to the proceedings before the circuit court.  Kennedy cited two reasons why the statute should not be followed; first, that the Missouri Administrative Procedures Act allows any person “aggrieved by a decision in a contested case” to appeal and that, as a result, she was not required to be a party to the circuit court litigation.  The court rejected this argument because the zoning enabling statutes contemplate a different process that makes this provision of the Administrative Procedures Act inapplicable. Second, Kennedy argued that when the city chose not to appeal the circuit court’s decision, standing transferred to those for whom the city was acting in a representative capacity; i.e., those like Kennedy who would be aggrieved by the decision. The court rejected this argument as well, stating that state law allows aggrieved persons to formally intervene in litigation when their interests are at stake.   Kennedy countered by pointing to Missouri caselaw that suggests that neighboring landowners do not have a right to intervene in circuit court proceedings stemming from BZA matters (because, in her interpretation, the BZA is adequately representing the interests of the neighbors).  The court rejected her interpretation of those cases, and pointed to other Missouri cases, including the dissent of a case where intervention was denied, that imply that a landowner may indeed be able to intervene in a BZA case at the circuit court level if the motion to intervene is timely.

The Court of Appeals dismissed Kennedy’s appeal for lack of standing.

Installation of traffic light considered a general benefit in calculating condemnation award

by Victoria Heldt

City of Maryland Heights, Missouri v. Robert J. Heitz and Loretta Tucker
(Missouri Court of Appeals, November 1, 2011)

Heitz and Tucker have owned a 12-acre piece of property in Maryland Heights, Missouri since 1961, when it was surrounded by vacant land.  Heitz constructed a building to house Heitz Machine and Manufacturing and built a private drive down the center of the property that ran from Dorsett Road to the building.  Subsequently, Interstate 270 was constructed to the west of the property and developers showed an interest in purchasing it for commercial or retail use.  Heitz showed no interest in selling the entire parcel, but came to an agreement in the early 1980’s with Charles Drury, Sr. that provided Drury two and a half acres of land on which to build a Drury Hotel in exchange for Heitz becoming a limited partner in the venture.  The construction of the hotel still left a portion of Heitz’s property vacant along Dorsett Road.

Heitz continued to receive offers to purchase the remaining land including one from Mr. Drury who expressed interest in building another hotel on the remaining portion of the land.  It was his custom to convert older Drury hotels into Pear Tree Inns and then construct a new Drury Hotel nearby.  Another offer was received from the Edward D. Jones Company which had developed a North Campus in Maryland Heights.  The campus covered 50 acres of land to the southeast of the intersection of Dorsett Road and Interstate 270.  Edward D. Jones wanted to expand but was unable to do so due to the current configuration of the Dorsett-270 intersection.  The intersection next to the Jones campus (Dorsett Road and Progress Parkway) was very near to Interstate 270 and caused traffic congestion.  Jones sought to relocate Progress Parkway and formed a redevelopment plan with the City in 2002 which included building a public road over Heitz’s property.  Heitz claimed to have no knowledge of the City’s development plan.  Jones made yet another offer to Heitz to purchase the property since he would need an entrance to his campus from Dorsett Road.

Eventually, a portion of the Heitz property was condemned.  The private drive that the Heitz’s previously built that provided access to Heitz Machine would be made into a four-lane public road and two traffic signals would be constructed as outlined by the redevelopment plan.  The City valued the property at approximately $1.2 million.  Heitz disputed the valuation in the condemnation proceedings.  Heitz felt the compensation was not sufficient.  His property was less valuable from his perspective because Drury no longer had an interest in purchasing it for another hotel once the size of his remaining parcel was reduced.  The City felt the plan actually improved the property’s value, and that thus the damages were excessive.  Each party brought witnesses to testify to the value of the land.  The court awarded damages of approximately $1.8 million to Heitz.

The City brought seven claims on appeal, the first regarding the court’s finding that a traffic light is a general benefit.  They argued that it provided a special benefit and should be used to offset damages to Heitz.  They purported that the stoplight increased the property’s “accessibility, visibility, frontage, and connectivity” and that it lessened the cost of future commercial development.  Heitz argued that it did the opposite since it removed the property’s access to Dorsett Road.  The Court found that it was indeed a general benefit for three reasons.  First, a special benefit is derived from the specific location of the improvement.  Since the benefit would still exist of the stoplight was placed elsewhere in the area, it is not specific.  Second, the Court found that the traffic signal is a “secondary, necessary byproduct of the construction of the road,” so it is unable to confer an individual, specific benefit.  Third, the stoplight did not result in a vested right since the City could remove it whenever it saw fit.  For those reasons, the benefit could not be construed as special.

The City’s second argument challenged Mr. Drury’s testimony, inasmuch as Heitz failed to list him as an expert witness.  The Court found Drury did not need to be classified as an “expert witness” since he was merely discussing his prior dealings with Heitz and his knowledge of that specific piece of property.  The remainder of the City’s complaints challenged the admissibility of other expert witnesses and claimed errors in Heitz’s cross-examination and closing argument.  The Court denied all remaining points and affirmed the condemnation award.

Realtors Association has standing to challenge rental licensing ordinance

by Gary Taylor

St. Louis Association of Realtors v. City of Ferguson
(Missouri Supreme Court, October 25, 2011)

In 2006, the City of Ferguson enacted an ordinance that created a regulatory fee and licensing system for owners of residential property within Ferguson who lease or rent their property to others.  To qualify for a rental license, property owners must undertake building inspections, file affidavits stating whether any adult tenants are registered as sex offenders, retain a property manager residing within 25 miles of the rental property and pay licensing fees. The ordinance makes it unlawful for property owners to rent or lease their property without a license.

The St. Louis Association of Realtors (Association) is a trade association with approximately 9,000 members in the St. Louis metropolitan area. The association challenged the validity of the ordinance on both constitutional and statutory grounds. Its petition asserted that it has associational standing on behalf of its members because some of those members are affected by the ordinance directly, because it has an interest in protecting private property rights of the type affected by the ordinance, and because the relief it requested is a declaration that the ordinance is invalid rather than damages and so, its suit does not require joinder of individual members.  The trial court dismissed the association’s petition, determining that it lacked standing to bring suit.  The association appealed.

According to the Missouri Supreme Court “Reduced to its essence, standing roughly means that the parties seeking relief must have some personal interest at stake in the dispute, even if that interest is attenuated, slight or remote.  A legally protectable interest exists only if the plaintiff is affected directly and adversely by the challenged action or if the plaintiff’s interest is conferred statutorily….An association that itself has not suffered a direct injury from a challenged activity nevertheless may assert ‘associational standing’ to protect the interests of its members if certain requirements are met. The association must demonstrate that (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.”

The Missouri Supreme Court determined that the association had associational standing.  The association satisfied the first prong of the test because some of its members are property owners in Ferguson and, so, would have standing in their own right to challenge Ferguson’s ordinance. Specifically, three realtor-members testified that they own rental property within Ferguson and, as such, have felt a direct impact from the various requirements imposed by the ordinance.  The Court disagreed with the city’s assertion that a majority of an association’s members must be able to prove standing in their own right.

In assessing the association’s satisfaction of the second prong the Court observed that the relevant question is whether the basis on which the individual association members were found to have standing under the first prong also is germane to the association’s purpose.  “Mere pertinence between litigation subject and organizational purpose is sufficient. Requiring otherwise would undermine the primary rationale of associational standing, which is that organizations are often more effective at vindicating their members’ shared interests than would be any individual member.” The association supported its claim that it has an organizational interest in protecting property rights by introducing its by-laws, and mission statement, which both contain statements about the association’s stated purpose to protect members’ and homeowners’ property interests. The association also presented evidence that the association regularly engages in lobbying activities and fundraising to advance the interests of its members, including their interest in protecting real property rights. Further, two association representatives testified that the organization has initiated or participated in litigation challenging ordinances or defending its members cited for violating ordinances deemed objectionable to the association’s mission of protecting property rights.

Finally, the Court concluded that the third prong was met because the association merely sought prospective relief via a declaratory judgment that Ferguson’s ordinance was invalid. It was not pressing for damages or other relief that would require joinder of individual association members. “Where an association seeks only a prospective remedy, it is presumed that the relief to be gained from the litigation will inure to the benefit of those members of the association actually injured.”

Proposal sufficient to pass muster at preliminary plat stage despite water pressure and sewage disposal concerns

NOTE:  With the start of fall classes the BLUZ welcomes its newest student contributor, Victoria Heldt.  Tori’s bio appears under “contributors.”  Melanie Thwing is continuing to report on all things land use in her homeland of Wisconsin before she starts law school next fall (Packers news will be filtered out.  Sorry Melanie).

by Victoria Heldt

State of Missouri, Ex Rel., Alexander & Lindsey, LLC v. Planning and Zoning Commission of Platte County, Missouri
(Missouri Court of Appeals, Western District, August 16, 2011)

Alexander & Lindsey, LLC (Alexander) owns approximately 16 acres of property north of Missouri Highway 92 and east of Highway 45 in Platte County, Missouri.  In July of 2007, Alexander filed an application with Platte County for a preliminary plat to subdivide the property into five lots for commercial development with the name “Beverly Plaza.”  In order to subdivide land in Platte County, a property owner must comply with the Platte County Subdivision Regulations of 1992.  The Director of Planning and Zoning, Daniel Erickson, determined that Alexander’s preliminary plat application met all of the requirements of the Subdivision Regulations and recommended approval of the application.

Pursuant to Subdivision Regulations, a public hearing was held in March of 2008, at which Erickson testified that the preliminary plat application complied with regulations.  In addition, a traffic study was completed that was approved by the Missouri Department of Transportation and the Platte County Engineer.  A drainage study was also reviewed and approved by the County Engineer.  Several concerns were raised at the hearing, however, regarding the water and soil testing.  The spokesman for Water District No. 3 stated that the District could provide water service to the property but that it could not guarantee fire suppression adequacy.  The Health Department, which performed soil testing, stated that 2 of the lots did not have adequate soil testing results suitable for septic systems and that those lots may require waste treatment systems using a lagoon or another method.

Erickson stated that some revisions would be made to the plat in response to the opposition to the development from the City of Weston.  These include 75-foot setback along both Highways 45 and 92 would be provided that would require a detailed landscape plan at the time of final plat approval and an area containing a stand of trees would be permanently protected by a stream buffer setback easement.  Greg Hoffman, an alderman with the Weston Board of Alderman, testified that the City of Weston opposes the proposed development of the property because it violates Weston’s scenic overlay ordinance for properties within Weston, which requires a 100 foot setback and other provisions regarding landscaping, massing of buildings, and scenic views.  He noted that the Weston Planning and Zoning Commission had voted down this same request several years prior.

At the end of the hearing, the Planning and Zoning Commission denied the preliminary plat 7 to 1, finding that the application would be detrimental to the public good and would impair the intent, purpose and necessity of the Subdivision Regulations for the following reasons:  1) lack of specification as to the proposed uses 2) infrastructure limitations, such as water for fire suppression, lack of central sewage disposal facilities and inability of the proposed subdivision to support wastewater stabilization ponds 3) the potential impact of wastewater stabilization ponds on neighboring properties and the public 4) potential for traffic hazards created by two access points on Highway 45 adjacent to the proposed subdivision.  Alexander appealed to the County Commission and then to the circuit court, both of which confirmed the Planning and Zoning Commission’s denial of the request. Alexander then appealed to the Missouri Court of Appeals

Alexander asserted that the decision to deny its preliminary plat was arbitrary and unlawful since the plat was in compliance with the requirements of Platte County’s Subdivision Regulations.  The Court of Appeals agreed.  The Court stated that the County Commission is acting in an administrative capacity, not a legislative capacity, when reviewing subdivision plats. As such it has no authority to make subjective judgments regarding the granting or denying of  plats.  It simply has the authority to determine if a proposal complies with regulations.  The Court noted that the County Commission’s four reasons it provided for denial (listed above) were outside the scope of the requirements of the Subdivision Regulations for preliminary plats.  As to lack of specification of proposed uses, nothing in the Subdivision Regulations requires specification of uses at the preliminary plat phase.  Similarly, the regulations do not require an applicant seeking approval of a preliminary plat to resolve infrastructure issues involving fire suppression, central sewage disposal facilities, or wastewater stabilization ponds. The Court emphasized the fact that this was a preliminary plat, which only gives the subdivider permission to proceed with the planning and development phases of the project.  The Subdivision Regulations will still require the final plat to comply with all Subdivision Regulations.  The Court further noted that the general purpose clause of a subdivision ordinance cannot be used as an independent basis for plat denial since it contains “no standards for approval.” Since Alexander’s plat complied, the County Commission had a ministerial duty to approve it and no authority to deny it.The Court concluded that the County Commission’s denial of Alexander’s preliminary plat was arbitrary, unlawful, and not based upon substantial and competent evidence.  It reversed the decision and remanded it to the lower court.

Annexation/taxation agreement held to be valid by Missouri court

by Melanie Thwing and Gary Taylor

Western Taney County Fire Protection District v. City of Branson, Missouri
(Missouri Court of Appeals, February 10, 2011)

The Western Tansey County Fire Protection District (District) and the City of Branson, MO (City) both hold taxation authority within their boundaries for fire protection. Annexations of property within the District’s boundaries by the City in 1994 resulted in an overlap in taxation.   To avoid this, both entered into an “Agreement Concerning Provision of Fire Protection Services” (Agreement). In paragraph 2 it is stated that if the City’s corporate limits are extended by annexations in the future the City will provide the fire services to the annexed property. Paragraph 7 provided that the District would stop taxing any area within the corporate limits of the City after December 31, 1994. Further, if property is annexed District will maintain the right to tax until the end of that year. Finally paragraph 8 agrees that the City will pay $416,666.66 to District for three years starting in 1995 and ending in 1997. All contractual obligations were met.

Then, after the City annexed further property [the case does not specify when this annexation occured] the District sought more money under § 321.322 RSMo. This statute basically holds that a city will assume fire protection duties for annexed property and pay the district either “an amount mutually agreed upon,” or fees under the statutory formula.  The City refused payment claiming that the requested payments fell within the terms of the Agreement and were satisfied by the payments to District. In trial court it was found that § 321.322 was a consideration when crafting the Agreement and therefore the District was entitled to no further compensation.

The District argued to the Court of Appeals that § 321.322 provides a “sixty days’ statutory mandate” that does not allow agreements to extend to annexations outside of sixty days post-contract. The court disagreed.  Under the statute a compensation scheme would be enacted unless a city would contractually assume responsibility to pay a mutually-agreed consideration.  The statute provides that “nothing contained in this section shall prohibit the ability of a city to negotiate contracts with a fire protection district for mutually agreeable services.” The statute does not forbid agreements. Future obligations can be addressed by contract; parties are permitted by statute to craft terms that address foreseeable future annexations. The District argued that the Agreement does not discuss if it extends to future annexations; it only confirms that double taxation and coverage will not occur. However, paragraph 7 specifically states, “future annexations,” thus clarifying that future annexations were forseeable and meant to fall under the agreement’s terms.

Lastly the District argued that § 321.322 violates Article 10, §§ 1 & 2 of the Missouri Constitution and the common law rule against perpetual contracts. If the sections are read together they prohibit District from “contracting away” taxing power without legislative authority. The court, however, pointed out that the District did not lose their right to tax in the Agreement. It simply stopped duplication of services and wrongful double taxing.  The court also found that a contract for indefinite terms does not make it perpetual. Further the Missouri courts often reject the idea that contracts automatically create perpetual obligations or rights. The judgment of the trial court was affirmed.

Expert’s testimony in takings case lacked foundation and should have been excluded

by Melanie Thwing

Glaize Creek Sewer District v. Gorham
(Missouri Court of Appeals, March 22, 2011)

Gary and Sheila Gorham live in Jefferson County, Missouri. In 2008 Glaize Creek Sewer District filed a petition in condemnation to acquire a permanent sewer easement and a temporary construction easement that would run through the Gorham’s back yard. This easement would be fifteen feet wide and 161 feet long.

During construction Glaize Creek utilized a thirty foot wide temporary easement to store equipment. Glaize Creek also cut down trees in the back yard as well as cutting the roots of at least nine trees, altered the grade of the back yard and left a permanent manhole.

The Gorham’s filed for damages with the trial court. Mrs. Gorham is a certified state appraiser and testified about the property. She found, according to Uniform Standards of Professional Appraisal Practices (USPAP) that the property diminished $29,000 after the project was complete.

It was noted in her testimony that the loss of trees allowed commercial properties to be seen at night, there was now an inability to build a pool or any other improvements over the sewer line, there was a loss of marketability of property during the actual construction, and the back yard was now in a “torn-up condition.” All of these resulted in a permanent diminution in the value of the property.

Glaize Creek also called a certified real estate appraiser to testify. However, this expert did not see the property prior to construction and did not inspect the entire property. He stated his purpose was to find if there was an impact on the property from the easement, not the value of the entire property. He testified that there was no adverse affect to the property.

The Gorham’s then asked that the expert testimony from Glaize Creek be stricken because the opinion did not measure damages and the difference in value before and after the taking. This objection was overruled and the jury returned the verdict of $0.00.

The Gorham’s appealed to the Missouri Court of Appeals, first arguing that the trial court abused its discretion when the expert testimony was allowed. They claim the testimony failed to address the proper measures of damages, was irrelevant, lacked foundation, and served only to confuse the jury. The Court of Appeals noted that it will not generally second-guess the conclusion of the trial court on the admissiblity of expert testimony, but in cases where the sources relied on by the expert are “so slight as to be fundamentally unsupported,” the testimony should be excluded from consideration.  Missouri law, § 523.001(1) states that in partial takings the measure of compensation is “the difference between the fair market value of the entire property immediately prior to the taking and the fair market value of the remaining or burdened property immediately after the taking.”  The expert from Glaize Creek testified that he did not assess the fair market value of the entire property before and after the easement. Instead he visited the property after the project was completed. In his testimony no data was presented as to how he reached the conclusion that no value was lost. On the other hand, Mrs. Gorham testified that she used comparable sales methods and presented reasons for the diminution in property value.  The Court of Appeals found that Glaize Creek’s expert testimony must be excluded because it is not founded on any rational basis and without substantial information and is mainly speculative.

By failing to take into account the value of the property prior to the easement the testimony lacked foundation and should have been excluded. The judgment of the trial court was reversed and the case was remanded for a new trial.

Sign company had no vested right to have permit processed under old ordinance

by Melanie Thwing

Lamar v. City of Kansas City
(Missouri Court of Appeals, November 9, 2010)

In September 2007, the City Council of Kansas City, Missouri passed an amendment to its code of ordinances.  The amendment prohibited outdoor signs with “revolving, moving, flashing, blinking, or animated characteristics.”  The amendment also provided that until the amendment went into effect no permits for altering outdoor signs were to be approved.  

Lamar had filed a permit application with the city two days before the enactment of the ordinance.  Because of the pending ordinance city staff refused to process Lamar’s application until after the ordinance was passed. In district court Lamar argued that the permits should have been processed immediately based on the ordinances that were in effect at the time of application.  The district court disagreed and summary judgment was granted to the City. Lamar appealed to the Court of Appeals.

The court looked to previous rulings which held that “the mere filing of an application gave the applicant no vested right under the old ordinance.” From these the court holds that just filing an application is not enough to provide a vested right. Rather, the owner “must have reasonably relied upon a belief that the existing law would continue to be in force.” This requires not only a reliance on the continuation of the ordinance, but also a reasonable belief.

The Missouri Court of Appeals ultimately held that Lamar had no vested right to have its permit processed under the old ordinancem and dismissed the case.





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