|
MUNICIPAL ATTORNEYS NEWSLETTER
Missouri Municipal Attorneys Association
1727 Southridge Drive, Jefferson City, MO 65109
Editor Howard C. Wright 417-569-0386
Asst. Editor Ragan Wright
573-635-9134, Fax: 573-635-9009
November 09, Issue #11-09
CASE OUTLINES (MISSOURI)
REPEAL OF STATE LAW MOOTS REQUEST TO INCORPORATE VILLAGE. Ferguson, a registered voter in Franklin County (County) filed a petition for incorporation of the village of Stonewater on December 26, 2007, asking that the County submit the question for incorporation at the next General Election date, which would have been November of 2008. At the same time the petition for incorporation was pending before the County, there also was legislation before the General Assembly, which if passed would have repealed the law that provided for incorporating Stonewater as a village (Village Law). On May 27, 2008, the Franklin County Commission voted not to put the question of the incorporation of the village of Stonewater on the August 5, 2007, primary election date. On June 6, 2008, Ferguson filed a petition for Writ of Mandamus in circuit court. On June 19, 2008, the Governor signed legislation that repealed the Village Law on August 28, 2008. On July 14, 2008, the trial court issued a preliminary Writ of Mandamus requiring the County to respond to the Writ of Mandamus. The County responded that they had a duty to determine the legality of the petition for incorporation before calling an election, and that the repeal of the Village Law caused them to engage in additional scrutiny of the petition. On July 29, 2008, the trial court issued an order denying the Writ of Mandamus on the grounds that the Commission’s function in analyzing the petition was discretionary, not ministerial. Ferguson appealed and the Eastern District held on October 6, 2009, that the matter was moot since the Village Law was repealed on August 28, 2009. Judge Romines dissented stating that this case was not moot but just “inconvenient” based on the principle that the only question the County had to decide was whether or not the petition met the requirements of the statute, which did not involve the exercise of discretion. Ferguson v. Hillhouse, et al., (ED92467, 10/06/09).
Comment Howard: Very few of us will lose any sleep over the outcome of this case but the majority opinion seemed weak and further explanation might have been useful in lessening the sting of Judge Romines’ “inconvenient” dissent. When the Governor signed the law repealing the Village Law, the matter was rushed to have the issue taken up on the election of August 5, 2008, before the effective date of the repeal on August 28 instead of the General Election Date in November of 2008 that was the date originally requested by the plaintiff. It seems that when the trial court denied the Writ, the remedy was to immediately appeal the order asking an appellate court to order the County Commission to call the election. The plaintiff failed to pursue his remedies and lost all of his rights upon the repeal of the Village Law on August 28, 2008. Without a better explanation, it sounds like the court was just imposing its own personal views about the Village Law.
PETITION MUST ALLEGE FACTS TO SHOW YOU ARE AN AGGRIEVED PARTY. Developer proposed to build a $205,000,000 resort in Camden County on 18 acres of lakeside property. The property was zoned general commercial that has a 120-foot height limitation. However, the Board of Adjustment (BOA) had granted the Developer a Conditional Use Permit to build condominiums on this property that had a 55-foot height limitation. The Developer applied for a variance from the BOA asking for a height limitation of 85 feet, which was granted. A property owner (Property Owner) who had property in the vicinity of the development filed a petition in circuit court. The Property Owner asked for a review of the BOA decision alleging he was an ”aggrieved party” and had standing to challenge the variance. He argued that the Developer did not, at the BOA hearing, offer any competent and substantial evidence showing there was practical difficulty or unnecessary hardship and that the BOA exceeded its authority in granting the variance. The Developer filed a motion to dismiss and the Property Owner was granted leave to file a first amended petition at which time Developer refiled its motion to dismiss which was sustained on the grounds that the Property Owner had no standing because he was not an aggrieved party and was not an original party. The Property Owner appealed to the Southern District that affirmed on the grounds that the Property Owner failed to allege sufficient facts in his petition to show that he was an aggrieved party and had standing. The Property Owner alleged in his petition only that that he owned property in the immediate proximity of the development where the variance was granted and that he was aggrieved by the variance. The Southern District found that the plaintiff must allege facts, not conclusions, and must show in those facts how the variance directly and substantially affected any of the plaintiff’s specific and legally cognizable interests. Fleddermann vs. Camden County, Board of Adjustment, et al., (SD29413, 10/05/09).
ORDINANCE CHANGE MOOTS REQUEST FOR SIGN PERMIT. Lee, an outdoor advertizing company, applied to MoDOT for a permit to construct an outdoor advertizing sign that was to be a billboard under the zoning ordinance on property located in a C-2 commercial district. Lee then filed an application with the city of Kansas City (City) to obtain a permit from the City. The City denied the request because the location was within 800 feet of another billboard. Lee then applied for a variance from the City’s Board of Adjustment (BOA) that was denied, and Lee appealed the decision of the BOA to the Jackson County Circuit Court that affirmed the BOA’s decision. After the decision by the BOA and before the decision by the trial court, the City amended its zoning ordinance to limit billboards to M-1, M-2, and M-3 (all industrial districts). The amendment to the city code was made part of the record before the trial court. The parties agreed that the new zoning law restricting the location of billboards to the M-1, M-2, and M-3 would not allow Lee to construct the billboard; however, the parties disagreed as to the affect of the change to the City’s ordinance as to whether or not it mooted the issues in this case. Lee relied on Eubanks v. Board of Adjustment for the proposition that the issues in this case could not be mooted because the change in law took place after the BOA decision and that the appellate court’s decision is limited to considering only the evidence that was before the BOA at the time it heard the case. The Western District held that Eubanks was contrary to established authority and its mootness analysis should not be followed. It further held that the filing of an application for the sign permit does not give the applicant any vested rights. State ex rel. Lee & Associates v. Board of Adjustment of Kansas City et al. (WD70342, 10/27/09).
Comment Howard: This case is now a “go to” case as it is very well written and a strong case for government. It makes it clear that so long as the city amends its ordinances and makes a record of the change prior to the trial court ruling on the appeal of the BOA decision, it can moot an appeal by a change in law because a person does not obtain a vested right by filing an application for a permit. Footnote #5 and #6 make it clear that the change in law requires proof since appellate courts cannot take judicial notice of a municipal ordinance absent a situation that falls within two exceptions. Footnote #1 is fascinating because it states that the opinion was “reviewed and approved by the court in banc” giving this opinion a lot more firepower. In addition, the opinion does not dance around the holding by the Eastern District in Eubanks, stating that Eubanks was wrong by requiring that the change in law occur before the BOA rules. Footnote #4 states that the change in law trumps most other factors. The central issue originally in this case was over the meaning of the word “premise,” which was never reached but fully briefed. For those who are looking for guidance on this issue, the briefs of the parties would be a first stop.
TRANSFER OF PROPERTY COMPLETE UPON DELIVERY OF DEED. Christopher Spielvogel and his wife were riding a motorcycle when they collided with the center median on the Broadway Bridge complex in Kansas City. Christopher was killed and his wife was seriously injured. The wife and children (Plaintiffs) brought a lawsuit against Missouri Highway and Transportation Commission (MHTC) and Kansas City (City). The circuit court entered judgment against MHTC based on an arbitration award that found MHTC was responsible for the property on which the accident occurred, that a dangerous condition existed on the property, and that the accident was the direct result of the dangerous condition. The circuit court sustained the City’s motion for summary judgment and the Plaintiffs appealed on the grounds that the City owned the property. The record showed that in 1989 the City and MHTC entered into an agreement whereby the City agreed to convey to MHTC the bridge in exchange for a portion of Highway AA in Platte County upon the City making repairs to the bridge. In 1994, the City executed a bill of sale to MHTC and a quitclaim deed. Since August 6, 1994, MHTC maintained exclusive control of the bridge. In 1995, the City and MHTC entered into an amendment to the agreement that stated that the planned exchange had progressed to the point where the transaction may be closed, but that certain terms needed to be modified to provide that any bonds issued on the Broadway Bridge needed to be retired prior to conveying the bridge to MHTC provided the conveyance should occur no later than ten years after the contract amendment. On October 15, 1999, the bonds were fully defeased and they matured on October 15, 2000. On January 26, 2001, after receiving notice from the City that the bonds had matured, MHTC sent a letter to the City with the deed asking that the deed be recorded. The motorcycle accident occurred July 22, 2001, and the deed was recorded on July 27, 2001. On appeal, the question was whether or not the City owned the bridge or had exclusive control over the bridge. The Western District held that the conveyance of the bridge was complete when MHTC delivered the deed to the City for recording after satisfaction of all of the conditions with respect to the bonds maturing. Delivery of the deed operates as a transfer of the property. Spielvogel v. City of Kansas City, (WD70584, 10/27/09).
CITY ORDINANCE REQUIRING PSEUDOEPHEDRINE BY PRESCRIPTION ONLY DOES NOT CONFLICT WITH STATE OR FEDERAL LAW. Attorney General Opinion No. 184-2009 opines that a local government is not preempted by federal or state law if it passes an ordinance that requires a prescription to purchase products containing pseudoephedrine. However, the city must have the general police power by statute or its charter. The clarity and quality of this opinion leaves a lot to be desired. It seems like the author forgot about direct grants of power from home rule provisions in the Missouri Constitution, which allows home rule cities to do everything not denied by the Missouri Constitution, state law, or its charter. As written, the opinion requires you to find a grant of power in your charter. Copy of opinion on League Web site under “What’s New.”
WAIVED OBJECTION TO ADMINISTRATIVE HEARING PROCESS – PHOTO RED LIGHT CAMERA CASE. The Missouri Supreme Court has decided to hear City of Springfield v. Belt, which was an appeal from the Southern District. The case has a host of issues that the Southern District seemed to have dodged by determining that Belt waived his right to challenge the administrative process when he chose to participate in that process. In addition, the court concluded that the defendant did not have a right to a trial de novo. It is not exactly clear what the Missouri Supreme Court will do with this case. In the background of this matter, is the defendant’s argument that the City cannot hold administrative hearings.
CASE OUTLINES (FEDERAL)
DECISION BY CITY AND BOA DENYING CELL TOWER PERMIT UPHELD. The city of Ferguson (City) required USCOC of Greater Missouri to obtain a special use permit to construct a tower. The City ordinance required that a tower have a set back from the property boundaries of the site where it would be located. The set back required one foot for each foot of height and that it could not be located within 200 feet of a residential structure. Due to the small size of the lot on which USCOC proposed to construct the tower, it could not be located on the tract of property without a variance. USCOC applied for a special use permit from the City that was denied by the City Council on July 24, 2007. City Council denied the request after receiving a recommendation to deny from the Planning and Zoning Commission (P&Z) because of the violation of the setback requirements, lack of a variance, and the recommendation of planning and zoning. USCOC applied to the City’s Board of Adjustment (BOA) on July 19, 2007, for a variance from the requirements of the zoning ordinance. USCOC filed a lawsuit in federal district court on August 21, 2007, alleging that the BOA’s delay in not acting was in effect a constructive denial of rights of the USCOC under the Missouri and the U.S. Constitutions. Part of the issue in this case was that the BOA was not able to meet due to a lack of a quorum caused by the resignation of several members until February 4, 2007, at which time it voted to not grant the request for a variance. USCOC filed a motion for summary judgment based upon actions prior to the BOA meeting to consider the matter, which motion was denied. USCOC filed a second motion for summary judgment and the City filed its motion for summary judgment, which was granted. The Court determined that the City’s denial of the special use permit was proper and that the denial of the variance by the BOA was in writing and supported by substantial evidence. The USCOC appealed the granting of the City’s motion for summary judgment to the 8th Circuit. USCOC contended that the decision by the BOA was not a “final action” within 30 days from the decision. The 8th Circuit concluded that the actual decision of the BOA was the “final action” and the BOA’s final action occurred when it issued its decision. The statute requires that the local authority act on the application “within a reasonable time … taking into account the nature and the scope of the request.” This provision is intended to create a relatively flexible time frame in which local government must act. Since the “final action” of the BOA did not occur until it issued its written decision, it follows that the BOA did not violate the “in writing” requirement by issuing a decision more than 30 days after voting to deny the variance. The “written record” requirement does not require the BOA to provide a transcript of its proceedings. The decision of the BOA was supported by substantial evidence. The USCOC sought extensive variations from the zoning ordinance; and, when a request is in the “extreme” the BOA may consider that in its decision making process. USCOC of Greater Missouri v. City of Ferguson, (8th Cir. 08-3705, 09/21/09)
Comment Howard: This is a very useful case in that it provides you with a roadmap on how to handle a request for a telecommunications tower. It also resolves a number of legal issues of first impression in the 8th Circuit. You should also be aware that the FCC will soon be acting on a cell phone tower shot clock proposal and PEG channels.
ACCUSING A COLLEGE PRESIDENT OF DISHONESTY IN PUBLIC AFFECTS LIBERTY INTEREST. Accusing a college president of dishonesty in public is a stigmatizing charge implicating the liberty interest under the U.S. Constitution entitling the college president to a name-clearing hearing. Rush v. Perryman, et al., (8th Cir. 083148, 09/03/09.)
OTHER ISSUES
UPDATE ON STACKED SALES TAX … Dan Vogel writes: “Attorney Tom R. Burcham has recently dismissed (first “with prejudice” and then “without prejudice”) his “tax stacking” lawsuits against various cities across the state, including his cases against the cities of Joplin, Purdy, and Granby among others. As you may recall, the previous decision against the city of Purdy was previously set aside by the judge on his “own initiative” after a motion for summary judgment and a motion for reconsideration was filed by the City. These dismissals were filed on the day that his summary judgment response was due in the city of Joplin and the dismissals also coincided with a press release from Rep. Steve Tilley and Sen. Kevin Engler stating that they will submit proposed legislation to prohibit “tax stacking” ordinances in the future. Mr. Burcham claims he will refile these cases in the future if legislation is not adopted.”
“After all of the lawsuits, it remains the case that numerous claims were dismissed by courts or by Burcham before a positive ruling for any City could be obtained, and only the Iberia decision, which was not appealed, was ever decided in favor of Burcham. That lone circuit court decision supporting Burcham apparently occurred without Burcham advising the court of the prior 1991 circuit court decision in St. Charles (and subsequent Department of Revenue support) that had already addressed – and approved stacking of sales taxes under the identical county sales tax act.”
“We should all anticipate legislative efforts on this issue, but everyone should be aware of the significant law already supporting sales tax stacking under the general sales tax statutes and contact their representatives to ensure that the current state of the law is not misrepresented in Jefferson City.”
Congratulations to Dan from the MMAA for a job well done. This sounds like an understatement but that is navy talk for one hell of a job.
FROM IMLA WE HAVE THE FOLLOWING NOTICES OF RULE MAKING:
FCC CONSIDERS COMPENSATION FOR RIGHT-OF-WAY. IMLA is joining in comments filed by the National Association of Telecommunications Officers and Advisors (NATOA) that challenged FCC authority to set a national standard for right-of-way compensation. These and other ongoing proceedings at the FCC could dramatically affect local control of right-of-ways and other local property, local zoning, and police power authority. While NATOA worked with us so that IMLA could participate in this filing (at no cost to IMLA), NATOA does require additional resources to continue its efforts before the FCC. If you have not done so already, we would encourage your community to contribute to the NATOA efforts. If you have questions, you can contact NATOA's acting executive director, Tonya Rideout, trideout@natoa.org; phone: 703-519-8035 or other attorneys at Miller & Van Eaton at 202-785-0600 or e-mail: jvaneaton@millervaneaton.com.
CELL TOWER ZONING AND PEG CHANNELS. The Federal Communications Commission’s (FCC) chairman says the agency will be acting soon on cell tower zoning and PEG channel cases of interest to municipalities. In a speech to the cell phone industry last week, the chairman said that: “On the issue of tower siting, we have heard your call. This issue is ripe for action. I have consulted with my fellow commissioners, and in the near future we are going to move forward with a shot-clock proposal designed to speed the (cell tower zoning) process, while taking into account the legitimate concerns of local authorities. This was your idea, and we’re working on other ways to improve the tower siting process.”
It is unclear what the “proposal” will be in this matter. Chairman Genachowski was referring to a 2008 cell phone company petition that requested a ruling that cell tower zoning applications be automatically deemed granted if there is no final action by a municipality within 75 days (45 days for an antenna on an existing site). In a letter released last week, Chairman Genachowski expressed favorable views on PEG channels, and said that he “hopes” the FCC will act “in the near future” on the city of Lansing’s, Alliance for Community Media’s, and Dearborn/Meridian Township’s PEG channel petitions to the FCC. These cases challenge AT&T’s provision of PEG channels in an inferior manner, different from that of all other channels, and Comcast’s movement of PEG channels to digital tiers.
Many municipalities filed comments on both matters. The chairman’s letter and the congressional letter prompting it are posted at the Varnum Law Web site at http://tinyurl.com/yhry4sq. Thank you to John Pestle, chair of Telecommunications Group at Varnum Law and the chair of IMLA’s Telecommunications Section, for this update.
LEVEL THREE COMMUNICATIONS FILES A PETITION WITH FCC ASKING IT TO PREEMPT, NEW YORK STATE THRUWAY RENTS BASED ON BARRIER TO DELIVERING SERVICE TO SMALLER COMMUNITIES. After losing in the 8th Circuit in a case involving the city of St. Louis, Level Three Communications filed a petition before the FCC asking it to preempt, pursuant to Section 253(d) of the Federal Communications Act the rents associated with the use of a right-of-way managed by the New York State Thruway Authority. They allege that the rents are a barrier to providing broadband access to smaller communities along the Thruway. More information may be obtained about this from IMLA who is joining other national organizations in opposing the request.
COMMENTS FROM READERS
STEALING OF SEWER SERVICES. Last month I wrote about State of Missouri v. Hagensieker, a case involving the theft of sewer services in the city of Carthage. Nate Dally, city attorney from Carthage, wrote that it would be very difficult to obtain a conviction without an ordinance addressing the sewer charge when there are no water meters. Flow meters were installed to measure the flow in order to show the amount of wastewater being delivered to the city sewer system. Nate suggested that before pursuing a similar case you will need a plan in place to estimate the value of the sewer services. Thanks for this tip on this issue Nate and congratulations on your victory.
DAD TAKES UMBRAGE AT SLIGHT OF SON’S CASE. Last month I downplayed the importance of the impact of the decision in Richard Lee v. Grain Valley and drew several responses. First, a very proud dad, Bill Geary, wrote that his son represented Grain Valley and my slight was way off the mark. Bill cites this case every chance he gets. Christine Bushyhead responded, “You go, Dad!!!” Marianne Banks from Springfield joined in and wrote she had to look up on the map where Grain Valley was located, that the facts seemed silly, and wondered if there was more to this case than meets the eye. My take was also that the facts were strange but I considered how often small towns (sometimes even big cities) have difficulty in locating records. In this case, Grain Valley could not even determine the zoning. Not knowing, the zoning led to confusion since the plaintiff had a hard time showing that the City had a ministerial duty to issue a permit based on nonexistent zoning. Obviously it is better to confuse your opponents than give them a straight shot. To the credit of Bill’s son, Grain Valley quickly shifted gears and rezoned the property, which changed the case entirely.
As we can see from this month’s cases on mootness it is hard to beat City Hall if the city initially recognizes the weakness of its case like “where are the records.” I tip my hat to Bill’s son for recognizing the need to develop a winning strategy even though my slight about the legal principles of this case was right on.
HOW TO OBTAIN OPINIONS
The material contained in this Newsletter was summarized as a service to the MMAA members. Almost everything cited in the Newsletter is available on the Internet. There are a variety of places to search for cases on the internet. Below are several sites that I use for research. If you have questions or comments please feel free to email me at howardcwright@mchsi.com.
Missouri:http://www.courts.mo.gov/page.asp?id=12086&dist=Opinions
Federal: http://www.ca8.uscourts.gov/onestop.html.
Supreme Court: http://www.supremecourtus.gov/
Other sources: www.findlaw.com and http://www.molawyersweekly.com/.
The opinions cited in this Newsletter may be subject to revision or withdrawal prior to publication.
|
|
|
