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                                                

August 09, Issue #8-09

NEWS

MMAA MEMBERSHIP DIRECTORY AVAILABLE. The MMAA Directory is available to MMAA members. You my request a hard copy or we can e-mail you a copy. Please e-mail your request to Jean Glavin at jglavin@mocities.com.

CASE OUTLINES (MISSOURI)

TIME-OUT, YOU ARE ELIMINATING MY RIGHT TO USE THE STREET FOR PARKING. Cheryl Schrader, plaintiff, is the owner of real property at 4140 Gravois in St. Louis on which a Time-Out store is located. The property does not have any off street parking or a driveway. During the first three years when Time-Out was on the property, the adjacent street was a four-lane road with parking on both sides of the street. Customers of Time-Out used the on street parking alongside the street and the sidewalk to access the Time-Out store. The on street parking was not reserved specifically for Time-Out customers and was used by the public in general. QuickTrip purchased a parcel of land located across the street from the Time-Out store with the intention of opening a new QuickTrip store. QuickTrip requested the Missouri Department of Transportation (MoDOT) to restripe the street and create a center-turn lane, which in effect eliminated the on-street parking. MoDOT approved the change. Time-Out claimed it first learned about the restriping when MoDOT crews showed up to restripe the street. Time-Out immediately requested MoDOT and Quick-Trip to halt the restriping, but the request was denied. Immediately thereafter, Time-Out filed suit against MoDOT and QuickTrip on six counts; three of which were against QuickTrip. QuickTrip’s motion to dismiss the negligent misrepresentation claim was sustained and its motion for summary judgment on the claims for trespass and interference with an easement were also sustained. Time-Out appealed the decision to the Eastern District. With respect to the claim that QuickTrip’s actions interfered with an easement, the Eastern District held based on common law that an abutters easement rights is limited to an easement of access to use the adjoining street and that this right does not extend to use the street for parking. Only if access to and from the street is either unreasonably or unlawfully obstructed, may the abutter recover damages. Since Time-Out never had any off street parking or driveway to its property there was no interference with Time-Out’s right of abutters access. Time-Out was not entitled to recover for trespass because it did not show that it had an exclusive right of possession to the street for parking. Time-Out shares in the right to use the street with others subject to the police power of the government to establish traffic regulations. Judgment was affirmed. Schrader, et al., v. QuickTtrip, (ED92171, 07/28/09).

    Comment Howard. This is a great case on the abutter’s rights to use the streets for access and parking (Course No. 101). It is required reading for local government attorneys who need to know about the power of the government to regulate traffic in the face of allegations that the traffic regulations interfere with abutters rights.

BE CAREFUL WHO YOU NAME AS DEFENDANT WHEN SUING THE GOVERNMENT. Cape Girardeau County Commission was sued for alleged violations of the Sunshine Law and filed a motion to dismiss on the grounds that the County Commission was not an entity for the purpose of being sued. The motion was sustained and plaintiff appealed to the Eastern District. The Eastern District held that there was no right to sue the County Commission as an entity. Any lawsuit against the County Commission must be brought individually against the county commissioners.  For the purpose of the Sunshine law, which defines a “governmental body” the case law limiting the right to sue the County Commission controls; therefore, a suit must be brought in the name of the individual county commissioners. Purcell v. Cape Girardeau County Commission, (ED92213, 07/21/09).

    Comment Howard. While this case may seem arcane, you can save yourself a lot of grief or cause someone else a lot of grief by understanding the ruling in this case.

MISSOURI DEPARTMENT OF LABOR ALLEGES POSSIBLE VIOLATION OF MINIMUM WAGE LAW BY HANNIBAL. The Wage and Hour Division of the Missouri Department of Labor sent a letter to the city of Hannibal on August 4, 2009, concerning a possible violation of the Missouri Minimum Wage Law. This is the same law that the Cole County Circuit Court declared did not apply to municipalities which decision was not appealed by the state of Missouri. The letter claims failure to pay certain park employees the required $7.05 minimum wage and failure to pay time and one-half for hours worked over 40 hours. If your community should receive a similar letter please let the MML know immediately. The Department of Labor has contended that local government agencies that did not join directly in the Cole County lawsuit do not get the benefit of the decision. It seems to be a terrible waste of government (state and local) resources to have to litigate this issue again or obtain an order from the Cole County Circuit Court that the actions by the Department of Labor are in violation of the decision.

NO VIOLATION OF DELEGATION OF LEGISLATIVE POWER FOUND WHEN CITY AGREES IN PERPETUITY TO GRANT PROPERTY OWNER RIGHT TO USE SEWERS AND WATER LINES WITHOUT PAYING A FEE. The city of Smithville (City) approved a resolution granting the Smithville School District the right to install a water line to serve educational facilities that were under construction upon the receipt by the City of a duly executed easement for utility purposes. Following adoption of this resolution, the City approached the Kindreds and requested an easement across their property. The Kindreds prepared and granted the City an easement in 1969 at no cost except it provided that the Kindreds had the right to make connections to the water and sewer lines “without the payments of any fee to the Grantee for the right to make such connections.” The City kept the easement agreement on file and adopted a resolution allowing the school district to build the sewer on the City’s easement. During the next four decades, the school district expanded the buildings that used the water and sewer lines across the easement, and the number of students grew from 450 students to 1,700. In addition, the City granted five other property owners the right to use the water and sewer lines. In 2002, the Kindreds wanted to develop 16 residential lots on their property and requested access to the lines. The request was denied by the City on the grounds that there was no remaining capacity. The Kindreds sued and the City defended on the grounds that the above actions taken by the City did not comply with Section 432.070 because the easement was never authorized or signed by the City, exceeded the power of the City, and there was no consideration. The trial court found for the Kindreds and the City appealed to the Western District, which affirmed the trial court’s decision. The exchange of the easement for the right to connect in the future was sufficient consideration. State law clearly granted the City the power to enter into the agreement and the actions of the City were sufficient to comply with Section 432.070. There was no delegation of legislative power because the restriction in the easement (considered to be a binding contract) did not completely delegate the City’s power over the water and sewer lines except for the right to connect without paying a fee. Kindred et al., v. City of Smithville, (WD68831, 07/21/09).

    Comment Howard. This is a very well written opinion that goes through the issues by the numbers. The case also raises some pretty interesting issues that local government attorneys face on a regular basis. At the time in 1969 when the easement was granted everything looked great. Smithville gets a new school and it was helping the school that was already under construction even though the school did not have in place the legal framework for water and sewer lines. The first mistake was allowing the property owner to prepare the easement and the second mistake was allowing the right to connect without paying a fee. It seems that the City might have an easy way around this because the problem was no capacity so it would seem that the limitation in the easement would not apply to a general citywide ordinance that restricted connections when the sewer line or water that did not have capacity.

SEDALIA DANGEROUS BUILDING CODE OPERATES LIKE CLOCKWORK. The city of Sedalia (City) acting through its Board of Appeals entered an order condemning a dangerous building and the owner appealed the decision however the appeal was filed late, outside of the 30 days required by law. The circuit court determined it did not have jurisdiction because the appeal was not timely filed and dismissed the appeal. Defendant argued that the order was not final because he filed a motion before the board asking that it reconsider its decision and give him more time arguing, noting that a city employee had indicated that an extension would be granted; therefore, the board’s order was subject to reconsideration and modification. The Western District disagreed and affirmed the decision. The defendant’s argument that the City was equitably estopped was rejected because equitable estoppel applies only in exceptional circumstances, which did not exist in this case. Gosal v. The City of Sedalia, (WD69871, 07/21/09).

    Comment Howard. While the legal principles in this case are pretty mundane, it was impressive to note that notices were issued the day after the owner missed a deadline. The biggest complaint from citizens and city councilmembers with the dangerous building code has been the time it takes to complete the process, which is in large part due to the number of required steps and the failure of city officials to follow up in a timely manner. Sounds like Ann Gardner has this on some sort of automated computer list that notifies and requires the inspector to inspect the property the day after the notice expires so on that very same day the next notice can be issued. Congratulations Ann.

CONSTRUCTIVE DISCHARGE. Ellen Wallingsford (Employee) was an employee with the city of Maplewood (City) from August 26, 1986 to her resignation on August 29, 2004. After she resigned, she filed a complaint within 144 days of her resignation with the Missouri Human Rights Commission (MHRC) alleging discrimination based on gender, hostile work environment, retaliation, and constructive discharge. The MHRC provided the Employee with a right to sue letter and thereafter she sued. Besides the above allegations she specifically alleged that the discrimination occurred throughout her employment. The City filed a motion to dismiss, which the trial court treated as a motion for summary judgment, which motion was sustained on the grounds that the complaint with the MHRC was not filed within 180 days of the alleged discrimination. Employee appealed and the Missouri Supreme Court reversed. The Court noted that while the trial court could treat the motion to dismiss as a motion for summary judgment, it still needed to follow Rule 74.04, which was not followed, resulting in an inadequate record for review to determine if there were any material facts in dispute. The Court noted that the employee alleged continuing discrimination from the time she started her employment to the date she retired and that the complaint filed with the MHRC was within 180 days of her resignation. Wallingsford v. City of Maplewood, (SC89862).

    Comment Howard. This case has a good discussion of what constitutes constructive discharge.

DEFENDANT WAIVED OBJECTION TO ADMINISTRATIVE PROCESS USED FOR PHOTO RED LIGHT CAMERA TICKETS. On June 11, 2008, the City notified Adolph Belt (Defendant) that a vehicle registered in his name was photographed running a red light by the red light traffic camera in violation of the city code that imposes a civil penalty on the owner of the vehicle. The Code allows the person charged to request an administrative hearing. The Defendant asked for an administrative hearing, which was held resulting in a determination that the Defendant was guilty. Thereafter the Defendant filed an application for a trial de novo pursuant to Section 479.200 and Rule 37.71. The City filed a Limited Entry of Appearance and Motion to Dismiss questioning the trial court’s jurisdiction to grant a de novo appeal from an administrative hearing. Thereafter, the court entered its Judgment of Dismissal and the Defendant appealed to the Southern District. The Southern District held that the Defendant was not entitled to a trial de novo from an administrative hearing. City of Springfield v. Belt, (SD29605, 07/07/09).   

HOG FARM IS A TEMPORARY NUISANCE. ContiGroup Companies (Defendants) operate several hog farm facilities in northwestern Missouri. In 1996, residents brought a nuisance action against the Defendants. In May of 1999, a jury awarded some 52 plaintiffs, after a three-month trial, $100,000. In August of 2002, Mr. and Mrs. Peters and 34 other former plaintiffs to the 1999 lawsuit, filed another nuisance action against ContiGroup and two other companies in Jackson County which were the genesis of this case. The petition alleged that despite the finding of a temporary nuisance in the 1999 case, three years earlier, the Defendants maintained its property in that “ill-smelling odors and or contaminated wastewater continue to escape” onto the plaintiffs’ property. The trial court sustained Defendant’s partial motion for summary judgment and the Plaintiff Rachael Hall appealed. The issue was whether or not Rachael Hall, who was a minor at the time of the first suit, was barred by res judiciata from bringing this action because her parents were Plaintiffs in the 1999 action, each receiving $100,000. At the time of the 1999 action, Rachael Hall was a minor living with her parents at home and there was testimony about the impact of the nuisance on her health. The Missouri Supreme Court held that her claim was not barred by the 1999 action since she was a minor at the time, and the Plaintiffs asked for damages for a temporary nuisance. If the nuisance was temporary, the value is the decrease in the rental value including other incidents of damage such as loss of comfort and health during the duration of the nuisance. Persons who are living at the property may recover if it is a temporary nuisance. If the nuisance is permanent the loss is the diminution of the fair market value of the property due to the injury. Only persons who are owners of the property may recover from a permanent nuisance. Peters v. Contigroup, et al, (WD69614, consolidated with 69647, 07/07/09).

    Comment Howard. This has a very good discussion of the difference between permanent and temporary nuisance that you need to add to your file on nuisance actions.

CASE OUTLINES (FEDERAL)

LEVEL 3 COMMUNICATIONS IS FINAL. On June 29, 2009, the United States Supreme Court declined to review Level 3 Communications, LLC v. City of St. Louis, 540 F3d 794 (8th Cir. 2008) leaving in place this very important decision in the area of the telecommunications law. In the Level 3, Eighth Circuit held that the mere possibility of prohibition was not sufficient to implicate Section 253(a) of the Telecommunications Act. The telecommunications provider had the burden to show that the terms and conditions of the city license actually limited effective competition by showing what services it would have provided had it been able to freely use the money that it was forced to pay to access the city rights-of-ways.

EASTERN DISTRICT OF U.S. FEDERAL DISTRICT COURT UPHELD CITY OF ARNOLD RED LIGHT CAMERA ORDINANCE. Steve Chinn reports that on July 23, 2009, the United States District Court for the Eastern District of Missouri handed down a decision upholding the city of Arnold’s red light camera ordinance in a 48-page opinion. It appears that the plaintiff’s threw the proverbial kitchen sink at the ordinance with claims for violation of the racketeering law to the standard violation of due process. The City and other defendants filed a motion for summary judgment that was sustained by the district court. The style and case number is Kilper vs. City of Arnold, et al., case number 408cv0267 TCM. Thank you Steve for this important update. A copy of the decision can be obtained from MML or e-mail Steve Chinn at SChinn@stinson.com.

OTHER NEWS

KANSAS CITY SETTLES DISCRIMINATION LAWSUIT WITH CITY EMPLOYEE. The Kansas City Star reported in its July 23, 2009, edition that Kansas City opted to settle the discrimination suit for $550,000 involving the major’s wife who worked as a volunteer in the city offices. This adds insult to injury since the trial court found earlier that the city ordinance restricting the use of volunteers when you had a relative working for the City was invalid.

MARYLAND HEIGHTS SETTLES DAUGHERTY CASE FOR $775,000.  At the recent MMAA Summer Seminar, Howard Pappener made a comment about the Daugherty case and that the attorney fees get bigger the longer the case goes on. Seems like Howard may have had some inside information as Lawyers Weekly reported in its August 3, 2009, edition that this case set a new standard for summary judgment discrimination cases.

SPRINGFIELD SETTLES BACK TAXES WITH AT&T MOBILITY FOR $10.22 MILLION. Several months ago Springfield settled its lawsuit in federal court with AT&T Mobility for $10.22 million plus attorney fees, an agreement to pay these taxes going forward and to not contest payment in the future. Cell phone taxes from AT&T Mobility will average over $2 million per year based on what was paid under protest for the two preceding years.

HOW TO OBTAIN OPINIONS

The material contained in this Newsletter was summarized as a service to 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/.