RED ALERT from the MML...shocking

RED ALERT!! — SWEEPING STATE CONSTITUTIONAL AMENDMENTS WOULD
END LOCAL ZONING AUTHORITY, HEALTH & SAFETY POLICE POWERS, AND
REDEVELOPMENT
Proposed Ballot Initiatives Limit Local Regulatory Authority to “Public Use” Activity, Affect
Any Measure Which Reduces Use or Enjoyment of Private Property.
by Thomas A. Cunningham, Esq.
What would your community be like if tomorrow you eliminated zoning and subdivision
regulations along with local authority to police dangerous buildings, noxious weeds, trash and
abandoned vehicles? How about eliminating building and fire codes and inspections and local
limits on adult businesses, junkyards, and feed lots? Unthinkable? Think again.
Two ballot initiative petitions, already certified and gathering signatures, propose radical
amendments to the State constitution that would effectively eliminate Missouri cities’ authority
to protect local property values through zoning controls, building codes and health regulations.
If approved, these amendments would limit municipal police powers which affect any “right to
the use, sale or enjoyment of private property” to those “necessary for a public use” and, even
then, only after payment of “just compensation.”1 Unlike prior similar efforts, these sweeping
amendments provide no exceptions for health and safety laws, e.g., building and fire codes, or
even for local criminal laws.2
Instead, the amendments would confine local government authority to “public nuisances, as
defined by the Common Law.” As a result, a court would have to agree initially that items such
as weeds, trash, noise or other potentially injurious activities constitute an actionable nuisance.
Even if court approved, however, specific city efforts would be so limited as to be useless in
protecting adjoining property values. Recognition of the “nuisance” would first require a
determination “by a court of competent jurisdiction.” This determination, of course, would be
subject to appeal. Even after “final judgment,” the offending owner would still have a
“reasonable time” to act. Only after expiration of this period could the local government take
abatement action. One observer sagely commented that such a regime would require that cities
replace code enforcement personnel with lawyers. More importantly, effective action on
dangerous buildings or other life threatening conditions could be delayed for a year or more.
How Did They Get Here?
The U.S. Supreme Court 2005 decision in Kelo v. City of New London may have provided the
initial impetus for such initiatives. Observers cite emergence of similar measures in multiple
states as “evidence that the whole land-rights, property-use issue is catching fire.” Kelo arguably
expanded local ability to use eminent domain and certainly focused national attention on its use.
Notably, the current amendments proposed in Missouri (as well as previous unsuccessful efforts
1 Claims filed in the wake of Oregon’s Measure 37, which similarly requires payment of “just compensation” for
regulations which diminish the fair market value of property, chillingly illustrate potential costs of these provisions
to municipalities. In northwest Oregon, for example, landowners seeking to develop fifty 2-3 acre lots on 80 acres
demanded nearly $850,000 in "lost value from laws and regulations passed after the land was purchased."
2 Similar provisions of the so-called Tuohey Amendments “pay to govern” approach proposed in 2006 expressly
exempted from their scope health and safety laws, e.g., building and fire codes, and “recognized” criminal laws as
well as common law nuisances.
in 2006 known collectively as the “Tuohey Amendments”) have each been characterized by
proponents as “Eminent Domain” measures.
In Missouri, these efforts may have
gathered strength from more recent
state court decisions such as Centene
Plaza Redevelopment Corp. v. Mint
Properties (which actually limited
condemnation and redevelopment
authority), and City of Arnold v.
Tourkakis (which, construing art. VI,
§21, confirmed that non-charter city
authority to undertake
redevelopment projects and to
exercise eminent domain derives
from Missouri statutes). Notably,
David Danforth, a property owner in
Centene3, and Dr. Homer Tourkakis,
named defendant in City of Arnold,
each serve on the Executive Board of
Missouri Citizens for Property
Rights (“CPR”), proponents of the
current amendments. Moreover,
negative publicity associated with
redevelopment experiences in the
cities of Sunset Hills, Branson and
others continues to resonate with
Missouri voters.
The “defeat” of the 2006 “Tuohey
Amendments” may have given local
governments some comfort, but
clearly has not deterred “property
rights” advocates such as CPR.4
Indeed, many of the organizations
backing CPR appear to be those who
were involved in the Tuohey
Amendments as well as other
national efforts to curb local
authority. These groups suggest that
the current amendments are only
about eminent domain. Notably,
ballot title language prepared by
3 Reportedly, Mr. Danforth, one of three named owners of the Centene properties, ultimately shared an $18.8
million purchase price, the “highest price per square foot ever paid for real estate in St. Louis.”
4 For example, the currently proposed language to amend Article VI, section 21 is virtually identical to that in the
failed 2006 Tuohey Amendments.
HIGHLIGHTS OF PROPOSED AMENDMENTS
ARTICLE I, SECTION 26 – BILL OF RIGHTS
􀂄 Proposed Amendments to Article I Limit Police
Power Authority to “Public Use”:
• Prohibits the taking or damaging of any use or
enjoyment of private property (Police power
regulations inherently diminish (damage) individual
private property rights to accomplish the public
purpose of protecting collective property values);
􀂾 “Taking” or “damaging” may be direct (as by
acquisition) or indirect (as by regulatory or
administrative action)
􀂾 Any such action can only be accomplished expressly for
public use rather than public purpose. Because local
police power involves public purpose, not public use,
any police power which affects property is prohibited.
• Even if determined to be for public use, regulatory
action diminishing the enjoyment of private property
requires payment of “just compensation;”
􀂾 Imposes a “pay to govern” regime similar to the
discredited Oregon Measure 37
􀂾 Freezes any local action (“the property shall not be
disturbed”) until compensation paid or until judgment
and exhaustion of all appeals.
ARTICLE VI, SECTION 21
􀂄 Proposed Amendment to Article VI Confines Local
Abatement Authority to “Common Law” Nuisance
Actions:
• May eliminate all authority to pass laws dealing with
remediation and abatement of blighted, substandard
or insanitary areas;
• Substitutes “common law” nuisance protections, but
permits local enforcement only after final court
judgment and passage of “reasonable time” for
private remediation;
􀂾 Initiation of local abatement of individual nuisances
could take a year or more to go through courts.
CPR says nothing about the scope and sweeping effect of these amendments on local
government police power.
This significant omission can only be a smokescreen. Review of the rhetoric of these “property
rights advocates” reveals a bias against local government action, and a goal of confining cities to
“proper application of nuisance laws.” Although CPR’s own literature suggests that property
rights protections should be accomplished “by code enforcement, not eminent domain,” they
pointedly fail to mention that the amendments would effectively end code enforcement, along
with other local police power authority and the ability to protect property values.
So far, however, many city officials, as well as residents and potential voters, appear unaware
that these renewed and well-financed efforts to sweepingly amend the State constitution are
proceeding. The scope of potential damage has not been completely lost, however, on advocates
for developers, utilities and, in a classic “strange bedfellows” example, some environmental
advocates. As noted below, the Missouri Municipal League will join with home builders,
commercial development interests and utilities to provide support for contemplated procedural
challenges to the proposed initiatives. Given national experience, however, exclusive reliance on
legal challenges represents a risky strategy for Missouri local governments.
What Can You Do About It?
Proponents of these initiatives suggest that property owners can rely exclusively on nuisance law
and subdivision covenants to protect their investment. This is nineteenth century, not twentyfirst
century thinking, which a conversation with any experienced subdivision trustee should
quickly disabuse. Nevertheless, in light of Kelo nationally, and the so-called “property rights
mini-revolution” that has followed in its wake, “property rights advocates” who have failed to
convince state and local legislatures have apparently determined that sweeping constitutional
reform can now turn back the clock. This flies in the face of the wisdom that amending the
constitution is a significant step, which should not be undertaken in haste or in the heat of
controversy. (Local officials whose tenure and memory include the period following enactment
of the Hancock Amendment can provide cautionary tales of the unintended consequences of such
“sledgehammer” approaches. Recognition that we have gone “too far” in this area often reaches
us “too late” and is forgotten “too soon.”)
More alarming, however, than the sweep of these amendments and their ramifications for local
government has been the absence of public awareness of and debate on these issues, even after
the defeat of the Tuohey Amendments. As advocates of local government, then, each of us bears
a responsibility to help our clients and constituents appreciate the potential harm such
“sledgehammer” approaches can have on individual property values as well as local development
efforts. In the media drumbeat over eminent domain, many landowners may have been deafened
to the fact that local police power regulations exist to protect, not impair, property values.
In light of this most recent challenge, the Municipal League is marshalling support for a twopronged
defense consisting of: (i) legal challenge to the adoption and certification of the ballot
initiatives; and (ii) a public information campaign identifying the potential results of the
amendments, if adopted. Help is needed. Cities may support a legal challenge based on actual
damages resulting from inability to proceed with (or chilling effect on) various pending
enforcement actions. Moreover, although cities cannot directly contribute to support or oppose
any ballot measure, cities may fund public informational campaigns. The City of Springfield has
already committed $5,000 to this effort. Other cities are following suit. City contributions
should generally reflect the size and financial capacity of the participating city. The League will
also continue to coordinate these efforts with private sector “partner organizations” such as the
Missouri Chamber of Commerce.
Any review of recent media coverage teaches that these most recent initiatives are still riding a
statewide and, indeed, a national backlash against local government actions in the areas of
property regulation and redevelopment. If the real benefits of local code enforcement and land
use authority are to survive this wave, the time for vigorous local action and public education in
this matter is now and the fate of local property values may lie in your hands.
_________________________________
Thomas A. Cunningham is an attorney specializing in
redevelopment, public finance, and land use law. He is a
founding shareholder of Cunningham, Vogel & Rost,
P.C., legal counselors to local government, providing
legal representation exclusively to over 60 municipal
governments and public sector entities.