10/17/09 http://republicbroadcasting.org/?page_id=3 Radio re MML abuse, aired with Darren Weeks/ http://www.governamerica.com/ guest BJ Lawrence
10/10/09 http://www.youtube/ then type in stlc4l
presentation at Campaign for Liberty
Dr.Basham re: Initiative Petition to Eliminate Property Taxes & Personal Property Taxes...
and BJ Lawrence about MML abuse of your Constitutional Rights.
08/27/09 http://www.theinformationcorner.com/ Radio re MML abuse, aired by Trish & Sam Britton, guest BJ Lawrence
http://www.mo-cpr.org/ Ron Calzones site for your Initiative Petition to reform Eminent Domain that is NOW held up in MO Western Court of Appeals, by the MML
http://mopropertytaxelimination.blogspot.com/ another Initiative Petition to ELIMINATE Property tax and Personal property tax in the STATE OF MISSOURI
Contact BJ Lawrence/ email beejayl@peoplepc.com or phone 636-271-7817
GET UP, GET OUT, GET INVOLVED
http://campaignforliberty.com/usa/mo
http://stlouisteaparty.com project 99 corners
http://www.franklincountypatriots.org Basic training for activists 10/24/09
http://americansforprosperity.org/missouri
Saturday, October 17, 2009
Sunday, October 11, 2009
PROPOSED RESOLUTION for ALL CITIES to adopt to counter MML interference with Citizens Constitutional Right to Initiative Petition
RESOLUTION NO. _______________
RESOLUTION REBUKING CERTAIN ACTIONS TAKEN BY THE MISSOURI MUNICIPAL LEAGUE
WHEREAS, The Missouri Municipal League (MML) is funded through the contribution of member cities and other interested vendors and partners, and;
WHEREAS, MML purports to represent the desires and wishes of those member cities, and;
WHEREAS, the City of Pacific is a member of the MML, and;
WHEREAS, the MML has filed a lawsuit seeking to modify certain initiative petition ballot language approved by the Office of the Secretary of State, and;
WHEREAS, the MML has employed delay tactics in that lawsuit, such as protracted briefing schedules, which greatly diminish the limited time available to collect signatures, and;
WHEREAS, said lawsuit may have the effect of stymieing citizen initiative petitions, and;
WHEREAS, citizen initiative petitions provide direct citizen participation in the democratic process ensuring that the voice of Missouri citizens is heard by government, and;
WHEREAS, the City of Pacific seeks to support efforts that ensure direct citizen participation in government, and;
WHEREAS, the MML has been using other resources, in addition to the lawsuit, to oppose the citizen initiative petition, and;
WHEREAS, the MML has been soliciting special contributions from member cities to be used to fight said initiative petition, and;
WHEREAS, chapter 115.646 RSMo forbids the use of public resources in an attempt to influence a ballot measure or election by an “officer, employee or agent of any political subdivision”, and;
WHEREAS, the MML is an “agent” of the city of Pacific, and;
WHEREAS, the MML has been using its resources to lobby against the initiative petition in the public sphere and association meetings, and;
WHEREAS, the City of Pacific intends to be in total compliance with Missouri election law,
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Pacific, Missouri, that it does hereby reject any efforts by the MML in the aforementioned legal matter of in any other actions that might have the effect of stymieing citizen participation in the governance of the State of Missouri or its political subdivisions.
BE IT FURTHER RESOLVED by the Council of the City of Pacific, Missouri, that it believes that any efforts by MML to “educate” about a proposed citizen's initiative should include an opportunity for both sides of the measure to present their position.
(end of resolution)
______________________________
Presiding Officer of the City Council
______________________________
Mayor Herb Adams
______________________________
City Clerk Kim Barfield
RESOLUTION REBUKING CERTAIN ACTIONS TAKEN BY THE MISSOURI MUNICIPAL LEAGUE
WHEREAS, The Missouri Municipal League (MML) is funded through the contribution of member cities and other interested vendors and partners, and;
WHEREAS, MML purports to represent the desires and wishes of those member cities, and;
WHEREAS, the City of Pacific is a member of the MML, and;
WHEREAS, the MML has filed a lawsuit seeking to modify certain initiative petition ballot language approved by the Office of the Secretary of State, and;
WHEREAS, the MML has employed delay tactics in that lawsuit, such as protracted briefing schedules, which greatly diminish the limited time available to collect signatures, and;
WHEREAS, said lawsuit may have the effect of stymieing citizen initiative petitions, and;
WHEREAS, citizen initiative petitions provide direct citizen participation in the democratic process ensuring that the voice of Missouri citizens is heard by government, and;
WHEREAS, the City of Pacific seeks to support efforts that ensure direct citizen participation in government, and;
WHEREAS, the MML has been using other resources, in addition to the lawsuit, to oppose the citizen initiative petition, and;
WHEREAS, the MML has been soliciting special contributions from member cities to be used to fight said initiative petition, and;
WHEREAS, chapter 115.646 RSMo forbids the use of public resources in an attempt to influence a ballot measure or election by an “officer, employee or agent of any political subdivision”, and;
WHEREAS, the MML is an “agent” of the city of Pacific, and;
WHEREAS, the MML has been using its resources to lobby against the initiative petition in the public sphere and association meetings, and;
WHEREAS, the City of Pacific intends to be in total compliance with Missouri election law,
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Pacific, Missouri, that it does hereby reject any efforts by the MML in the aforementioned legal matter of in any other actions that might have the effect of stymieing citizen participation in the governance of the State of Missouri or its political subdivisions.
BE IT FURTHER RESOLVED by the Council of the City of Pacific, Missouri, that it believes that any efforts by MML to “educate” about a proposed citizen's initiative should include an opportunity for both sides of the measure to present their position.
(end of resolution)
______________________________
Presiding Officer of the City Council
______________________________
Mayor Herb Adams
______________________________
City Clerk Kim Barfield
Tuesday, September 1, 2009
TWO FACES OF THE MML
10/09/2009
The Two Faces of the Missouri Municipal League
BJ Lawrence , Pacific
To The Editor:The Missouri Municipal League (MML) originated in 1934 as a concept to help smaller cities have a stronger voice with mutual concerns. MML is now 660-member cities strong. Each city pays $225 membership dues, plus 95 cents per person.
These dues are paid through taxpayer dollars.
Then along comes 2009 and
the second face of the MML is revealed. "Lawyers" hired by
the MML are working against the very taxpayers who fund the organization.
Lawyers, who accept funds from large corporations and use the good name of
the MML to fight citizens rights is the face of MML. Check for
yourself. Go to www.municipalfirm.com and you can see the lobbying they do
in Jefferson City and you will find they do not represent you, the average
Joe. They represent big business.
Now those lawyers are interfering with Citizens Constitutional Right to
initiative petition. They have repeatedly held up an Initiative
Petition (to limit the use of eminent domain) in court, which was approved
by the secretary of state (www.mo-cpr.org).
Citizens need to show concern regarding their rights being taken away at an
alarming rate. Make your voice heard at your next council meeting,
take the proposed resolution to your council to adopt and send to the MML.
It's time to stop the practicing of MML using our tax money against us
(proposition available at http://www.momunicipalleague.blogspot.com )
©Washington
Missouri 2009
10/09/2009
Pursuit of Sunshine (see MML abuse of power below in RED)
The Washington Park
Board violated the Missouri Sunshine Law when it held a closed executive
session last week during its regular meeting.
That is the opinion of attorneys versed in Missouri's open meetings
law but you don't really need a lawyer to reach this conclusion. The
Missouri Sunshine Law is pretty clear when a public body may close a
meeting. A meeting by a public body, which includes the park board, can
close a meeting for personnel reasons. But the law says that it must be for
"hiring, firing, disciplining or promoting of particular
employees" when personal information about the employee is discussed
or recorded. The term personal information is defined by the law as
"information relating to the performance or merit of individual
employees."
The park board voted to
go into a closed executive session to discuss a dispute over management of
an annual softball tournament held in the spring. The dispute involved competing
organizations that have hosted the tournament in the past.
After the closed session, the park board recommended that the city's parks
and recreation department be the lead organization for the annual National
Softball Association Tournament in conjunction with the Washington Youth
Sports Association. During the closed session no one was hired, fired,
disciplined or promoted nor was any personal information about public
employees discussed.
The park board's decision to go into a closed session was an obvious
violation of the Sunshine Law. We would like to believe the park board
didn't intentionally set out to violate the law. But some of the
explanations given for going into the closed session demonstrate a profound
ignorance of the law. The fact that a number of city officials attended the
closed session and didn't raise any objections should raise a few eyebrows
and proves that more needs to be done to educate our city officials on
Missouri's Open Meetings Law.
That need was discussed at Monday's city council meeting when Councilman
John Rhodes questioned the park board's decision. Mayor Dick Stratman
suggested that the city draft an ordinance that would require any city
board to get advice from the city attorney before closing a meeting to determine
if it is legal. The idea has merit and would likely force compliance with
the law.
If that's what it takes, then we're all for it, as draconian as it appears.
But, it's really not that complicated. The Sunshine Law is simple enough to
understand if you just read it. The Missouri Attorney General's Office has
published a free pamphlet on the law which is readily available to public
officials. The Sunshine Law is pretty straightforward. You don't need a law
degree or even a college education to understand its principles which are
all based on common sense.
Given these facts, ignorance of the law really shouldn't be an excuse. But
it is when it comes to enforcement of the law, it is a de facto defense.
That's because of the way the law is written. Currently, anyone found by a
judge to have "knowingly" violated the Sunshine Law can be fined
up to $1,000, while those who "purposely" violate the law can
face fines up to $5,000. The "knowingly" legal standard is too
vague and too hard to prove, which is why so many violation go
unchallenged.
The park board's violation of the law is not an aberration. Government
bodies across the state routinely violate the Sunshine Law, which is why
efforts are made each year to try and put some teeth into the law. Last year,
a bill was introduced that would allow fines up to $500 for Sunshine Law
violations regardless of whether they are made "knowingly." It
would have created strict liability for breaking the law.
As in the past, the bill encountered stiff
opposition from a number of factions including the Missouri Municipal
League which is an organization that lobbies on behalf of cities. They
argued in essence that mostly part-time, underpaid city and county
officials shouldn't be subject to strict liability for ignorance of the
law.
Unfortunately this argument prevailed and the bill failed. What is
remarkable is that your tax dollars are used to pay dues to support the
Municipal League. That's right, your tax dollars are used, in essence, to
lobby against more openness in government.
It's time to recognize that it is incumbent on every public official,
whether they are volunteers or not, to educate themselves of what the
Sunshine Law requires.
If there was "stict liability," our guess is that public
officials would be more inclined to read and follow the law.
That's what taxpayers deserve. After all, what do they have to hide?
©Washington
Missouri 2009
The Two Faces of the Missouri Municipal League
BJ Lawrence , Pacific
To The Editor:The Missouri Municipal League (MML) originated in 1934 as a concept to help smaller cities have a stronger voice with mutual concerns. MML is now 660-member cities strong. Each city pays $225 membership dues, plus 95 cents per person.
These dues are paid through taxpayer dollars.
Then along comes 2009 and
the second face of the MML is revealed. "Lawyers" hired by
the MML are working against the very taxpayers who fund the organization.
Lawyers, who accept funds from large corporations and use the good name of
the MML to fight citizens rights is the face of MML. Check for
yourself. Go to www.municipalfirm.com and you can see the lobbying they do
in Jefferson City and you will find they do not represent you, the average
Joe. They represent big business.
Now those lawyers are interfering with Citizens Constitutional Right to
initiative petition. They have repeatedly held up an Initiative
Petition (to limit the use of eminent domain) in court, which was approved
by the secretary of state (www.mo-cpr.org).
Citizens need to show concern regarding their rights being taken away at an
alarming rate. Make your voice heard at your next council meeting,
take the proposed resolution to your council to adopt and send to the MML.
It's time to stop the practicing of MML using our tax money against us
(proposition available at http://www.momunicipalleague.blogspot.com )
©Washington
Missouri 2009
10/09/2009
Pursuit of Sunshine (see MML abuse of power below in RED)
The Washington Park
Board violated the Missouri Sunshine Law when it held a closed executive
session last week during its regular meeting.
That is the opinion of attorneys versed in Missouri's open meetings
law but you don't really need a lawyer to reach this conclusion. The
Missouri Sunshine Law is pretty clear when a public body may close a
meeting. A meeting by a public body, which includes the park board, can
close a meeting for personnel reasons. But the law says that it must be for
"hiring, firing, disciplining or promoting of particular
employees" when personal information about the employee is discussed
or recorded. The term personal information is defined by the law as
"information relating to the performance or merit of individual
employees."
The park board voted to
go into a closed executive session to discuss a dispute over management of
an annual softball tournament held in the spring. The dispute involved competing
organizations that have hosted the tournament in the past.
After the closed session, the park board recommended that the city's parks
and recreation department be the lead organization for the annual National
Softball Association Tournament in conjunction with the Washington Youth
Sports Association. During the closed session no one was hired, fired,
disciplined or promoted nor was any personal information about public
employees discussed.
The park board's decision to go into a closed session was an obvious
violation of the Sunshine Law. We would like to believe the park board
didn't intentionally set out to violate the law. But some of the
explanations given for going into the closed session demonstrate a profound
ignorance of the law. The fact that a number of city officials attended the
closed session and didn't raise any objections should raise a few eyebrows
and proves that more needs to be done to educate our city officials on
Missouri's Open Meetings Law.
That need was discussed at Monday's city council meeting when Councilman
John Rhodes questioned the park board's decision. Mayor Dick Stratman
suggested that the city draft an ordinance that would require any city
board to get advice from the city attorney before closing a meeting to determine
if it is legal. The idea has merit and would likely force compliance with
the law.
If that's what it takes, then we're all for it, as draconian as it appears.
But, it's really not that complicated. The Sunshine Law is simple enough to
understand if you just read it. The Missouri Attorney General's Office has
published a free pamphlet on the law which is readily available to public
officials. The Sunshine Law is pretty straightforward. You don't need a law
degree or even a college education to understand its principles which are
all based on common sense.
Given these facts, ignorance of the law really shouldn't be an excuse. But
it is when it comes to enforcement of the law, it is a de facto defense.
That's because of the way the law is written. Currently, anyone found by a
judge to have "knowingly" violated the Sunshine Law can be fined
up to $1,000, while those who "purposely" violate the law can
face fines up to $5,000. The "knowingly" legal standard is too
vague and too hard to prove, which is why so many violation go
unchallenged.
The park board's violation of the law is not an aberration. Government
bodies across the state routinely violate the Sunshine Law, which is why
efforts are made each year to try and put some teeth into the law. Last year,
a bill was introduced that would allow fines up to $500 for Sunshine Law
violations regardless of whether they are made "knowingly." It
would have created strict liability for breaking the law.
As in the past, the bill encountered stiff
opposition from a number of factions including the Missouri Municipal
League which is an organization that lobbies on behalf of cities. They
argued in essence that mostly part-time, underpaid city and county
officials shouldn't be subject to strict liability for ignorance of the
law.
Unfortunately this argument prevailed and the bill failed. What is
remarkable is that your tax dollars are used to pay dues to support the
Municipal League. That's right, your tax dollars are used, in essence, to
lobby against more openness in government.
It's time to recognize that it is incumbent on every public official,
whether they are volunteers or not, to educate themselves of what the
Sunshine Law requires.
If there was "stict liability," our guess is that public
officials would be more inclined to read and follow the law.
That's what taxpayers deserve. After all, what do they have to hide?
©Washington
Missouri 2009
Tuesday, August 18, 2009
Lobbiest Against Citizen Constitutional Rights
Missouri, May 17, 2009:
Defenders of Liberty, http://www.mofirst.org
Here's what happened...
BOTTOM LINE SUMMARY
Our primary objective of stopping the bad bill was met, and our secondary objective of passing reforms was advanced but did not come to be. Unless a bill is being pushed by most of the power brokers, it usually takes more than one year to get it passed. Our "respect the will of the voter" theme and common sense, non-partisan reform resonates, and I think we laid a lot of good groundwork for a follow up effort next year.
We faced off against the secretary of state, the Chamber of Commerce, the Missouri Municipal League, the NEA, Farm Bureau and their tag-a-long, the Cattlemen's Association, and the Missouri Restaurant Association -- plus whoever else was behind the scene. The main senate opposition came from Jolie Justus and Joan Bray. When our good language was being debated on the floor, Kevin Engler argued for Bray's amendment to prohibit pay based on signatures. (It was rare for Engler to speak for or against a bill this session. The amendment was soundly defeated in spite of the floor leader's support.)
Our first thought was that the best defense was a good offense. That means killing the residency requirement and the prohibition on "payment based on the number of signatures collected" was the number one priority -- we did and that was a significant victory, especially considering the powerful interests on the other side. More importantly, we now have the majority of the senate understanding that there are ways to reform the petition process while still respecting the people's constitutional right to petition.
Another significant outcome was exposing the secretary of state's attitude about a fair an unbiased initiative and referendum system. Her people fought us all the way and would not even discuss reasonable, non-partisan reforms. She was clearly defending her power as the petition queen (Read 1 Kings 21:7-10) who can make or break initiatives.
Another thing we learned was who truly has the people's interest at heart and who can be "distracted" from that interest by the monied special interests. And, similarly, who actually honors their oath to support and defend the constitutions. Sen. Jim Lembke started out ambivalent about this issue because he doesn't like anything that smacks of direct democracy, but then we showed him Article II, Sec. 49 of the Missouri Constitution. That's where it says the people "reserve" the power to use I&R. Jim then became incensed at the notion that the power brokers wanted to effectively strip the people of that reserved power -- and do so through back-door means. Jim then became a fighting tiger for our issue. It's great to have him in the senate!
Waiting to help us in the house when we got the "repaired" bill back over there was Rep. Ed Emery. Ed is a stand up constitutionalist, like Lembke.
I mention Ed because he will be facing off against Rep. Mike Parson in the primary when Sen. Delbert Scott vacates his seat (2010 election).
The more time I spend at the capitol, the more I realize just how little say the average people actually have. The special interests have a stranglehold and we need guys like Lembke and Emery up there to keep the constitution alive!
THANK YOU
It should be noted at this point that all the calls to Engler really helped!! Scores of calls jammed their phones and really made a point that helped me a lot, since they understood that I had a lot of backing.
Again, I think we achieved, overall, a large victory. Besides killing the bad bills, I don't think we'll see a republican push for the bad stuff again and I think we have clearly drawn some battle lines. It will be interesting to see who wants to side with the SOS, Missouri Municipal League and NEA next time.
Next time we will also start a concurrent effort in the house. In the mean time, I hope people are taking notice of the SOS' disdain of the people's "reserved" right to I&R!
Thank you, all, for your support!
- Ron
Defenders of Liberty, http://www.mofirst.org
Here's what happened...
BOTTOM LINE SUMMARY
Our primary objective of stopping the bad bill was met, and our secondary objective of passing reforms was advanced but did not come to be. Unless a bill is being pushed by most of the power brokers, it usually takes more than one year to get it passed. Our "respect the will of the voter" theme and common sense, non-partisan reform resonates, and I think we laid a lot of good groundwork for a follow up effort next year.
We faced off against the secretary of state, the Chamber of Commerce, the Missouri Municipal League, the NEA, Farm Bureau and their tag-a-long, the Cattlemen's Association, and the Missouri Restaurant Association -- plus whoever else was behind the scene. The main senate opposition came from Jolie Justus and Joan Bray. When our good language was being debated on the floor, Kevin Engler argued for Bray's amendment to prohibit pay based on signatures. (It was rare for Engler to speak for or against a bill this session. The amendment was soundly defeated in spite of the floor leader's support.)
Our first thought was that the best defense was a good offense. That means killing the residency requirement and the prohibition on "payment based on the number of signatures collected" was the number one priority -- we did and that was a significant victory, especially considering the powerful interests on the other side. More importantly, we now have the majority of the senate understanding that there are ways to reform the petition process while still respecting the people's constitutional right to petition.
Another significant outcome was exposing the secretary of state's attitude about a fair an unbiased initiative and referendum system. Her people fought us all the way and would not even discuss reasonable, non-partisan reforms. She was clearly defending her power as the petition queen (Read 1 Kings 21:7-10) who can make or break initiatives.
Another thing we learned was who truly has the people's interest at heart and who can be "distracted" from that interest by the monied special interests. And, similarly, who actually honors their oath to support and defend the constitutions. Sen. Jim Lembke started out ambivalent about this issue because he doesn't like anything that smacks of direct democracy, but then we showed him Article II, Sec. 49 of the Missouri Constitution. That's where it says the people "reserve" the power to use I&R. Jim then became incensed at the notion that the power brokers wanted to effectively strip the people of that reserved power -- and do so through back-door means. Jim then became a fighting tiger for our issue. It's great to have him in the senate!
Waiting to help us in the house when we got the "repaired" bill back over there was Rep. Ed Emery. Ed is a stand up constitutionalist, like Lembke.
I mention Ed because he will be facing off against Rep. Mike Parson in the primary when Sen. Delbert Scott vacates his seat (2010 election).
The more time I spend at the capitol, the more I realize just how little say the average people actually have. The special interests have a stranglehold and we need guys like Lembke and Emery up there to keep the constitution alive!
THANK YOU
It should be noted at this point that all the calls to Engler really helped!! Scores of calls jammed their phones and really made a point that helped me a lot, since they understood that I had a lot of backing.
Again, I think we achieved, overall, a large victory. Besides killing the bad bills, I don't think we'll see a republican push for the bad stuff again and I think we have clearly drawn some battle lines. It will be interesting to see who wants to side with the SOS, Missouri Municipal League and NEA next time.
Next time we will also start a concurrent effort in the house. In the mean time, I hope people are taking notice of the SOS' disdain of the people's "reserved" right to I&R!
Thank you, all, for your support!
- Ron
Monday, August 17, 2009
MML more shocking propoganda re: Citizens Rights
MISSOURI MUNICIPAL ATTORNEYS ASSOCIATION
2009 SUMMER SEMINAR
Tan-Tar-A
July 18, 2009
ROUND THREE !!!
2009 “CPR” CONSTITUTIONAL AMENDMENTS:
EMINENT DOMAIN OR SLUMLORDS’ BILL OF RIGHTS?
TEMPLATE RESOLUTION/POLICY:
“BEST PRACTICES” PROCEDURES IN
EMINENT DOMAIN FOR REDEVELOPMENT
PREPARED AND PRESENTED BY:
THOMAS A. CUNNINGHAM, ESQ.
CUNNINGHAM, VOGEL & ROST, P.C.
legal counselors to local government
75 W. LOCKWOOD, SUITE ONE
ST. LOUIS, MISSOURI 63116
314.446.0800
tom@municipalfirm.com
www.municipalfirm.com
NOTICE & DISCLAIMER
These seminar materials and the related presentation are intended for discussion purposes and to provide those
attending the seminar with useful ideas and guidance on the topics and issues covered. The materials and the
comments of the presenters do not constitute, and should not be treated as, legal advice regarding the use of any
particular technique, device or suggestion, or its legal advantages or disadvantages. Although we have made every
effort to ensure the accuracy of these materials and the presentation, neither the attorney presenting this seminar nor
Cunningham, Vogel & Rost, P.C. assumes any responsibility for any individual’s reliance on the written or oral
information presented. All rights reserved.
2
LIMITED PURPOSE OF TEMPLATE RESOLUTION/POLICY:
The policies contained in the attached template Resolution are intended solely as guidelines for
those communities seeking to formalize a procedure for considering the use of eminent domain
for economic development and redevelopment projects and areas. The template reflects certain
“Best Practices” Procedures, some of which were recommended in 2005 by the Missouri Eminent
Domain Task Force (“EDTF”). (References in the template are to enumerated “EDTF Action
Items.”)
The procedures contained in the template are intended to apply only to a limited “subset” of
eminent domain issues involving (1) permanent acquisitions of (2) fee interests in real property (3)
for redevelopment purposes. (These policies/procedures do not apply to temporary acquisitions,
acquisitions of property interests less than fee (e.g., easements, rights-of-way), or to acquisitions of
any property interest for any purpose other than economic development and redevelopment (e.g.,
public works, parks and recreation, utilities, etc.).
The policies and procedures offered are themselves, however, guided by three basic principles:
• Eminent Domain determinations are and should remain issues of local (not state-wide)
concern and should be responsive to local concerns and dynamics;
• Any such procedures should seek to balance public necessity with individual property
rights through a process perceived by the local community as fundamentally fair with the
primary objective of reducing potential for controversy and conflict;
• Resolution of conflicts that may arise in the context of developing such policies and any
remedial responses should involve the political, not the judicial process.
With this in mind, the presenters are not advocating wholesale adoption of the template
Resolution, but rather encouraging such communities and practitioners as may be interested to
consider relevant portions of the template as starting points to be modified and adapted as the
individual communities’ needs dictate.
RESOLUTION NO. __________
A RESOLUTION ADOPTING A POLICY TO APPLY CERTAIN “BEST
PRACTICES” PROCEDURES IN CONNECTION WITH THE EXERCISE
OF EMINENT DOMAIN FOR REDEVELOPMENT PURPOSES.
WHEREAS, Chapter 523 of the Revised Statutes of Missouri, as amended, entitled
“Condemnation Proceedings” (“Chapter 523”) governs the authority of the State of Missouri and
its political subdivisions, public corporations, and public authorities to exercise the power of
eminent domain by establishing standards and procedures as minimum requirements for any such
exercise; and
WHEREAS, the City of _________________, Missouri (the “City”) has determined
that, in connection with the permanent acquisition by or in the name of the City of real property
related to redevelopment activities, it is appropriate and in the public interest that a policy be
adopted to announce certain standards and procedures intended to balance public necessity with
individual property rights through a process perceived by the community as fundamentally fair;
and
WHEREAS, the governing body of the City now wishes to adopt a policy providing for
application in connection with such acquisitions of certain eminent domain “best practices” that
are intended to supplement the standards and procedures of Chapter 523 when exercised for
redevelopment purposes;
NOW, THEREFORE, BE IT RESOLVED BY THE [BOARD OF
ALDERMEN/CITY COUNCIL] OF THE CITY OF ____________, MISSOURI as follows:
Section 1. That the following policies and procedures for the application of certain “best
practices” in connection with consideration of acquisitions of parcels for redevelopment
purposes to be undertaken by or under authority of the City are hereby adopted and approved:
I. Purpose and Scope.
(A) The [Board of Aldermen/City Council] of the City hereby finds and
determines as follows that:
(i) the acquisition of interests in real property for public purpose through the
exercise of eminent domain, particularly when the property interest is to be
acquired in furtherance of redevelopment objectives, but will not be directly
owned or primarily used by the general public, poses unique issues and concerns
and has potential to engender significant controversy;
(ii) although eminent domain remains an essential tool to achieve local
redevelopment objectives, this authority must be exercised sparingly and, if and
when exercised, should preserve a balance between public necessity and
individual rights in property through a process perceived by the community as
fundamentally fair to all affected parties;
(iii) the City should act therefore as a good steward of eminent domain
authority, assuming responsibility for achieving a balance of interests and
2
maintaining fundamental fairness in the consideration of any exercise of eminent
domain; and
(iv) in light of the foregoing, the City intends to diligently apply the policies
and procedures set forth herein with the understanding that inadvertent failure to
apply the policies and procedures in a specific instance shall not invalidate the act
or acts undertaken, so long as such act or acts comply with applicable law.
(B) The policies and procedures set forth herein are intended to apply only to
those permanent acquisitions of fee interests in real property by or in the name of the
City:
(i) that relate to the elimination of blighted, substandard, or unsanitary
conditions, or conditions rendering the property to be acquired, or its surrounding
area a conservation area, or to any similar redevelopment purpose authorized by
law; or
(ii) when the property to be permanently acquired will not be directly owned
by the City or a governmental entity or agency; or
(iii) that are conveyed within three (3) years following acquisition by the City
or a governmental entity or agency to a private individual or a for-profit entity
(collectively, “Redevelopment Acquisitions”).
(C) These policies and procedures are intended to provide guidance and to
facilitate full, open and timely communication with and among all interested parties in
connection with Redevelopment Acquisitions with the primary objective of reducing
potential for controversy and conflict. Accordingly, nothing in these policies and
procedures or their application either generally or in specific instances is intended to or
shall be deemed to create a cause of action or claim against the City or any other
interested party.
(D) These policies are not intended to and shall not apply to any temporary
acquisition, acquisitions of property interests less than fee (e.g., easements, rights-ofway),
or to any acquisition of any property interest for any purpose other than a
Redevelopment Acquisition (e.g., public works, parks and recreation, utilities).
II. Initial Determinations; Notice and Public Hearing; “Plain Language”
Summary of Process.
(A) As part of the consideration of any proposed exercise of eminent domain
for any Redevelopment Acquisition, the [Board of Aldermen/City Council] should
determine and identify:
(i) each property to be acquired in fee and location or each such property by
street name or other sufficiently specific description; and
(ii) the use or uses intended to be made of the property to be acquired and the
persons or entity that will hold title to the acquired property after
redevelopment.
(B) Prior to the approval of any Redevelopment Acquisition, the [Board of
Aldermen/City Council] should provide for public comment on the proposal by holding a
public hearing after giving notice to the public and to those owners of record of property
3
to be acquired in fee (each an “Original Owner”). The notices provided should include
the determinations called for in paragraph (A) of this section. [EDTF Action Item #1]
(C) The [Board of Aldermen/City Council] should cause to be prepared a
written, “plain language” summary of the acquisition process and the rights of property
owners under Chapter 523 of the Revised Statutes of Missouri, as amended, and should
cause a copy of such written summary to be provided to each Original Owner in advance
of the holding of any scheduled public hearing to consider a Redevelopment Acquisition.
[EDTF Action Item #2]
III. Use of Redevelopment Acquisition Consistent with Initial Determinations.
After the exercise of eminent domain in connection with a Redevelopment
Acquisition, the City should use the property so acquired for the use or uses that were
originally identified by the [Board of Aldermen/City Council]. Within a three (3) year
period following authorization of eminent domain, a use of a Redevelopment Acquisition
that is substantially different from that originally identified should be authorized by an
affirmative [two-thirds/three-fourths] majority vote of the entire [Board of Aldermen/City
Council], which vote should be a public vote or, if the acquired property is no longer
needed or suitable for the originally identified use, the Original Owner may be afforded
the opportunity to re-acquire the property at the amount of the final award in
condemnation paid by or on behalf of the City. [See EDTF Action Item #12]
IV. Exercise of Authority; Time for Filing Condemnation Action.
(A) Eminent domain for Redevelopment Acquisitions should be exercised
only in the name of the City as approved by the [Board of Aldermen/City Council].
[EDTF Action Item #10]
(B) The City should provide final authority to exercise eminent domain for
Redevelopment Acquisitions only by ordinance or resolution, and after public hearing.
Each such ordinance or resolution should identify the property to be acquired and should
contain and be informed by the following findings and determinations:
(i) that interested parties and the public have had opportunity to be informed
of, and to be heard on, the proposed exercise of eminent domain;
(ii) that the proposed use of the property is consistent with the City’s
comprehensive plan;
(iii) that the property to be acquired will be directly owned by the City or other
governmental entity; or, in the event that the property to be acquired will
not be so owned, the ordinance or resolution identifies the person(s) or
entity(ies) who will hold title to the property after redevelopment; and
(iv) that there is no other reasonable alternative to acquisition of the property
by exercise of eminent domain. [EDTF Action Item #11]
(C) In each Redevelopment Acquisition, the City should file with the circuit
court of relevant jurisdiction a petition in condemnation seeking to acquire a specific
property not later than [three (3) years] from the date the [Board of Aldermen/City
Council] adopts the ordinance or resolution approving exercise of eminent domain. [See
EDTF Action Item #14]
4
V. Redevelopers.
(A) In each Redevelopment Acquisition in which the property to be acquired
will not be directly owned by the City or other governmental entity, the [Board of
Aldermen/City Council] should require written assurances that the person(s) or entity(ies)
who will hold title to the property after redevelopment (the “Redeveloper”):
(i) has demonstrated to the City’s satisfaction that the Redeveloper has
considered alternative sites or locations and that the property to be
acquired reasonably represents the minimum necessary to achieve the
goals of an approved redevelopment plan; [EDTF Action Item #11]
(ii) has provided adequate security for payment of all estimated condemnation
costs including awards, fees and relocation costs; pre-condemnation
damages; and damages in the event of abandonment of condemnation; and
(iii) to the extent feasible under an approved redevelopment plan, has made a
good faith offer to businesses or residents displaced by the Redevelopment
Acquisition of an opportunity to relocate within the area to be redeveloped.
(B) In the event that multiple properties are required to assemble land for
redevelopment, the City may additionally require that before authorization of eminent
domain, the Redeveloper has obtained control over at least [seventy-five percent (75%)]
of the total land area or total number of properties comprising the area to be redeveloped
by negotiated purchase.
(C) In connection with authorization of eminent domain for a specific
Redevelopment Acquisition, the City should additionally consider in applicable
circumstances whether the Redeveloper has provided for:
(i) determinations of value by independent appraisal;
(ii) inclusion of payment of business interruption costs as a relocation cost;
(iii) determination and payment of compensation based upon the true cost of
replacing such property with a comparable property and taking into
consideration, as applicable:
(a) the location of the acquired property;
(b) the school district in which acquired property lies;
(c) physical characteristics of the acquired property (e.g., acres, area,
number of bedrooms, etc.); and
(d) any other relevant characteristics of the acquired property which
bear on the true cost of replacement as of the date of the award in
condemnation; and
(iv) payment of compensation for any uncompensated rental interests acquired
or displaced as a result of the acquisition of property by eminent domain.
VI. Abandonment of Project; Opportunity to Repurchase; Expenses in Advance
of Award.
(A) If any project approved pursuant to an approved redevelopment plan in
which a Redevelopment Acquisition has been authorized and acquisition completed is
5
abandoned, for any reason, the City should promptly notify all Original Owners of
acquired properties and may provide an opportunity for each such Original Owner to
repurchase the property acquired.
(B) Other than as provided by applicable law, any cost or expense incurred by
any party affected by the exercise of eminent domain in advance of a commissioners’
award in condemnation, shall be solely the responsibility of such party.
VII. Redeveloper’s Prompt Payment of Condemnation Award.
(A) Prior to approving a Redevelopment Acquisition in which the property to
be acquired will not be directly owned by the City or other governmental entity, the City
should require that the Redeveloper pay the commissioners’ award into court promptly,
and in the event of unreasonable delay or failure by the Redeveloper to pay the
commissioners’ award into court that the Redeveloper indemnify and hold the City
harmless from all damages, costs and expenses required to be paid.
(B) Any written agreement between the City and the Redeveloper may include
provisions that Original Owners are entitled to the prompt payment of the
commissioners’ award into court.
Section 2. That his Resolution shall take full force and effect from and after the date of its
passage and approval as provided by law.
APPROVED BY THE [BOARD OF ALDERMEN/
CITY COUNCIL] OF THE CITY OF
____________________________, MISSOURI
__________________________
____________________, Mayor
Date: _____________________
Attest:
___________________________
_________________, City Clerk
2009 SUMMER SEMINAR
Tan-Tar-A
July 18, 2009
ROUND THREE !!!
2009 “CPR” CONSTITUTIONAL AMENDMENTS:
EMINENT DOMAIN OR SLUMLORDS’ BILL OF RIGHTS?
TEMPLATE RESOLUTION/POLICY:
“BEST PRACTICES” PROCEDURES IN
EMINENT DOMAIN FOR REDEVELOPMENT
PREPARED AND PRESENTED BY:
THOMAS A. CUNNINGHAM, ESQ.
CUNNINGHAM, VOGEL & ROST, P.C.
legal counselors to local government
75 W. LOCKWOOD, SUITE ONE
ST. LOUIS, MISSOURI 63116
314.446.0800
tom@municipalfirm.com
www.municipalfirm.com
NOTICE & DISCLAIMER
These seminar materials and the related presentation are intended for discussion purposes and to provide those
attending the seminar with useful ideas and guidance on the topics and issues covered. The materials and the
comments of the presenters do not constitute, and should not be treated as, legal advice regarding the use of any
particular technique, device or suggestion, or its legal advantages or disadvantages. Although we have made every
effort to ensure the accuracy of these materials and the presentation, neither the attorney presenting this seminar nor
Cunningham, Vogel & Rost, P.C. assumes any responsibility for any individual’s reliance on the written or oral
information presented. All rights reserved.
2
LIMITED PURPOSE OF TEMPLATE RESOLUTION/POLICY:
The policies contained in the attached template Resolution are intended solely as guidelines for
those communities seeking to formalize a procedure for considering the use of eminent domain
for economic development and redevelopment projects and areas. The template reflects certain
“Best Practices” Procedures, some of which were recommended in 2005 by the Missouri Eminent
Domain Task Force (“EDTF”). (References in the template are to enumerated “EDTF Action
Items.”)
The procedures contained in the template are intended to apply only to a limited “subset” of
eminent domain issues involving (1) permanent acquisitions of (2) fee interests in real property (3)
for redevelopment purposes. (These policies/procedures do not apply to temporary acquisitions,
acquisitions of property interests less than fee (e.g., easements, rights-of-way), or to acquisitions of
any property interest for any purpose other than economic development and redevelopment (e.g.,
public works, parks and recreation, utilities, etc.).
The policies and procedures offered are themselves, however, guided by three basic principles:
• Eminent Domain determinations are and should remain issues of local (not state-wide)
concern and should be responsive to local concerns and dynamics;
• Any such procedures should seek to balance public necessity with individual property
rights through a process perceived by the local community as fundamentally fair with the
primary objective of reducing potential for controversy and conflict;
• Resolution of conflicts that may arise in the context of developing such policies and any
remedial responses should involve the political, not the judicial process.
With this in mind, the presenters are not advocating wholesale adoption of the template
Resolution, but rather encouraging such communities and practitioners as may be interested to
consider relevant portions of the template as starting points to be modified and adapted as the
individual communities’ needs dictate.
RESOLUTION NO. __________
A RESOLUTION ADOPTING A POLICY TO APPLY CERTAIN “BEST
PRACTICES” PROCEDURES IN CONNECTION WITH THE EXERCISE
OF EMINENT DOMAIN FOR REDEVELOPMENT PURPOSES.
WHEREAS, Chapter 523 of the Revised Statutes of Missouri, as amended, entitled
“Condemnation Proceedings” (“Chapter 523”) governs the authority of the State of Missouri and
its political subdivisions, public corporations, and public authorities to exercise the power of
eminent domain by establishing standards and procedures as minimum requirements for any such
exercise; and
WHEREAS, the City of _________________, Missouri (the “City”) has determined
that, in connection with the permanent acquisition by or in the name of the City of real property
related to redevelopment activities, it is appropriate and in the public interest that a policy be
adopted to announce certain standards and procedures intended to balance public necessity with
individual property rights through a process perceived by the community as fundamentally fair;
and
WHEREAS, the governing body of the City now wishes to adopt a policy providing for
application in connection with such acquisitions of certain eminent domain “best practices” that
are intended to supplement the standards and procedures of Chapter 523 when exercised for
redevelopment purposes;
NOW, THEREFORE, BE IT RESOLVED BY THE [BOARD OF
ALDERMEN/CITY COUNCIL] OF THE CITY OF ____________, MISSOURI as follows:
Section 1. That the following policies and procedures for the application of certain “best
practices” in connection with consideration of acquisitions of parcels for redevelopment
purposes to be undertaken by or under authority of the City are hereby adopted and approved:
I. Purpose and Scope.
(A) The [Board of Aldermen/City Council] of the City hereby finds and
determines as follows that:
(i) the acquisition of interests in real property for public purpose through the
exercise of eminent domain, particularly when the property interest is to be
acquired in furtherance of redevelopment objectives, but will not be directly
owned or primarily used by the general public, poses unique issues and concerns
and has potential to engender significant controversy;
(ii) although eminent domain remains an essential tool to achieve local
redevelopment objectives, this authority must be exercised sparingly and, if and
when exercised, should preserve a balance between public necessity and
individual rights in property through a process perceived by the community as
fundamentally fair to all affected parties;
(iii) the City should act therefore as a good steward of eminent domain
authority, assuming responsibility for achieving a balance of interests and
2
maintaining fundamental fairness in the consideration of any exercise of eminent
domain; and
(iv) in light of the foregoing, the City intends to diligently apply the policies
and procedures set forth herein with the understanding that inadvertent failure to
apply the policies and procedures in a specific instance shall not invalidate the act
or acts undertaken, so long as such act or acts comply with applicable law.
(B) The policies and procedures set forth herein are intended to apply only to
those permanent acquisitions of fee interests in real property by or in the name of the
City:
(i) that relate to the elimination of blighted, substandard, or unsanitary
conditions, or conditions rendering the property to be acquired, or its surrounding
area a conservation area, or to any similar redevelopment purpose authorized by
law; or
(ii) when the property to be permanently acquired will not be directly owned
by the City or a governmental entity or agency; or
(iii) that are conveyed within three (3) years following acquisition by the City
or a governmental entity or agency to a private individual or a for-profit entity
(collectively, “Redevelopment Acquisitions”).
(C) These policies and procedures are intended to provide guidance and to
facilitate full, open and timely communication with and among all interested parties in
connection with Redevelopment Acquisitions with the primary objective of reducing
potential for controversy and conflict. Accordingly, nothing in these policies and
procedures or their application either generally or in specific instances is intended to or
shall be deemed to create a cause of action or claim against the City or any other
interested party.
(D) These policies are not intended to and shall not apply to any temporary
acquisition, acquisitions of property interests less than fee (e.g., easements, rights-ofway),
or to any acquisition of any property interest for any purpose other than a
Redevelopment Acquisition (e.g., public works, parks and recreation, utilities).
II. Initial Determinations; Notice and Public Hearing; “Plain Language”
Summary of Process.
(A) As part of the consideration of any proposed exercise of eminent domain
for any Redevelopment Acquisition, the [Board of Aldermen/City Council] should
determine and identify:
(i) each property to be acquired in fee and location or each such property by
street name or other sufficiently specific description; and
(ii) the use or uses intended to be made of the property to be acquired and the
persons or entity that will hold title to the acquired property after
redevelopment.
(B) Prior to the approval of any Redevelopment Acquisition, the [Board of
Aldermen/City Council] should provide for public comment on the proposal by holding a
public hearing after giving notice to the public and to those owners of record of property
3
to be acquired in fee (each an “Original Owner”). The notices provided should include
the determinations called for in paragraph (A) of this section. [EDTF Action Item #1]
(C) The [Board of Aldermen/City Council] should cause to be prepared a
written, “plain language” summary of the acquisition process and the rights of property
owners under Chapter 523 of the Revised Statutes of Missouri, as amended, and should
cause a copy of such written summary to be provided to each Original Owner in advance
of the holding of any scheduled public hearing to consider a Redevelopment Acquisition.
[EDTF Action Item #2]
III. Use of Redevelopment Acquisition Consistent with Initial Determinations.
After the exercise of eminent domain in connection with a Redevelopment
Acquisition, the City should use the property so acquired for the use or uses that were
originally identified by the [Board of Aldermen/City Council]. Within a three (3) year
period following authorization of eminent domain, a use of a Redevelopment Acquisition
that is substantially different from that originally identified should be authorized by an
affirmative [two-thirds/three-fourths] majority vote of the entire [Board of Aldermen/City
Council], which vote should be a public vote or, if the acquired property is no longer
needed or suitable for the originally identified use, the Original Owner may be afforded
the opportunity to re-acquire the property at the amount of the final award in
condemnation paid by or on behalf of the City. [See EDTF Action Item #12]
IV. Exercise of Authority; Time for Filing Condemnation Action.
(A) Eminent domain for Redevelopment Acquisitions should be exercised
only in the name of the City as approved by the [Board of Aldermen/City Council].
[EDTF Action Item #10]
(B) The City should provide final authority to exercise eminent domain for
Redevelopment Acquisitions only by ordinance or resolution, and after public hearing.
Each such ordinance or resolution should identify the property to be acquired and should
contain and be informed by the following findings and determinations:
(i) that interested parties and the public have had opportunity to be informed
of, and to be heard on, the proposed exercise of eminent domain;
(ii) that the proposed use of the property is consistent with the City’s
comprehensive plan;
(iii) that the property to be acquired will be directly owned by the City or other
governmental entity; or, in the event that the property to be acquired will
not be so owned, the ordinance or resolution identifies the person(s) or
entity(ies) who will hold title to the property after redevelopment; and
(iv) that there is no other reasonable alternative to acquisition of the property
by exercise of eminent domain. [EDTF Action Item #11]
(C) In each Redevelopment Acquisition, the City should file with the circuit
court of relevant jurisdiction a petition in condemnation seeking to acquire a specific
property not later than [three (3) years] from the date the [Board of Aldermen/City
Council] adopts the ordinance or resolution approving exercise of eminent domain. [See
EDTF Action Item #14]
4
V. Redevelopers.
(A) In each Redevelopment Acquisition in which the property to be acquired
will not be directly owned by the City or other governmental entity, the [Board of
Aldermen/City Council] should require written assurances that the person(s) or entity(ies)
who will hold title to the property after redevelopment (the “Redeveloper”):
(i) has demonstrated to the City’s satisfaction that the Redeveloper has
considered alternative sites or locations and that the property to be
acquired reasonably represents the minimum necessary to achieve the
goals of an approved redevelopment plan; [EDTF Action Item #11]
(ii) has provided adequate security for payment of all estimated condemnation
costs including awards, fees and relocation costs; pre-condemnation
damages; and damages in the event of abandonment of condemnation; and
(iii) to the extent feasible under an approved redevelopment plan, has made a
good faith offer to businesses or residents displaced by the Redevelopment
Acquisition of an opportunity to relocate within the area to be redeveloped.
(B) In the event that multiple properties are required to assemble land for
redevelopment, the City may additionally require that before authorization of eminent
domain, the Redeveloper has obtained control over at least [seventy-five percent (75%)]
of the total land area or total number of properties comprising the area to be redeveloped
by negotiated purchase.
(C) In connection with authorization of eminent domain for a specific
Redevelopment Acquisition, the City should additionally consider in applicable
circumstances whether the Redeveloper has provided for:
(i) determinations of value by independent appraisal;
(ii) inclusion of payment of business interruption costs as a relocation cost;
(iii) determination and payment of compensation based upon the true cost of
replacing such property with a comparable property and taking into
consideration, as applicable:
(a) the location of the acquired property;
(b) the school district in which acquired property lies;
(c) physical characteristics of the acquired property (e.g., acres, area,
number of bedrooms, etc.); and
(d) any other relevant characteristics of the acquired property which
bear on the true cost of replacement as of the date of the award in
condemnation; and
(iv) payment of compensation for any uncompensated rental interests acquired
or displaced as a result of the acquisition of property by eminent domain.
VI. Abandonment of Project; Opportunity to Repurchase; Expenses in Advance
of Award.
(A) If any project approved pursuant to an approved redevelopment plan in
which a Redevelopment Acquisition has been authorized and acquisition completed is
5
abandoned, for any reason, the City should promptly notify all Original Owners of
acquired properties and may provide an opportunity for each such Original Owner to
repurchase the property acquired.
(B) Other than as provided by applicable law, any cost or expense incurred by
any party affected by the exercise of eminent domain in advance of a commissioners’
award in condemnation, shall be solely the responsibility of such party.
VII. Redeveloper’s Prompt Payment of Condemnation Award.
(A) Prior to approving a Redevelopment Acquisition in which the property to
be acquired will not be directly owned by the City or other governmental entity, the City
should require that the Redeveloper pay the commissioners’ award into court promptly,
and in the event of unreasonable delay or failure by the Redeveloper to pay the
commissioners’ award into court that the Redeveloper indemnify and hold the City
harmless from all damages, costs and expenses required to be paid.
(B) Any written agreement between the City and the Redeveloper may include
provisions that Original Owners are entitled to the prompt payment of the
commissioners’ award into court.
Section 2. That his Resolution shall take full force and effect from and after the date of its
passage and approval as provided by law.
APPROVED BY THE [BOARD OF ALDERMEN/
CITY COUNCIL] OF THE CITY OF
____________________________, MISSOURI
__________________________
____________________, Mayor
Date: _____________________
Attest:
___________________________
_________________, City Clerk
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.
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.
Citizens Constitutional Rights/Initiative Petition
08/11/2009
Lengthy Discussion on Eminent Domain
By:Pauline Masson , Pacific Editor
Pacific aldermen listened Aug. 4 to arguments that two powerful state organizations want Missouri voters to hear before they decide whether or not to change Missouri law governing the use of eminent domain to take citizens' property.
Missouri Citizens for Property Rights (CPR) has proposed an initiative petition amending the state Constitution that, if passed, would prevent local governments from using eminent domain to take property for private use, such as subdivisions or shopping centers.Alderman Mike Bates requested time on the Aug. 4 agenda to hear a discussion on eminent domain and the efforts by the Missouri Municipal League to change the ballot language on the CPR petition.The discussion arose when Pacific resident B.J. Lawrence asked the city to end its membership in the municipal league, a lobbying organization for local governments.Lawrence said the league used taxpayer money - by collecting dues from member cities - to thwart citizens' rights to participate in government through the use of initiative petitions, which is guaranteed by the state Constitution.CPR representatives and an official from the city of Arnold, which has formally opposed the league's legal action on the eminent domain petition, accompanied Lawrence to the meeting and asked to speak to aldermen.The Arnold alderman objected to the league's filing a lawsuit seeking to modify the ballot language on the CPR eminent domain petition.Sarah Haenni, CPR spokesman from Kirkwood, said she is not asking the city to pull out of the league and she's not against the use of eminent domain for the public good."Government should be allowed to use eminent domain to take property for the public good such as a road or a hospital," Haenni said. "But not to build a new 7-Eleven."Haenni asked Pacific officials to consider the sending a resolution to the league supporting citizens' rights to use initiative petition, as Arnold did.The Arnold resolution said the league's court action seeking to modify the ballot language of the petition might have the effect of stymieing citizen initiative petitions.CPR will have to collect 150,000 good signatures for each of two petitions to place the eminent domain petition on the ballot allowing Missouri voters to say yes or no. Because some folks who sign may not be registered voters, or the handwriting can't be read, the organization said it is looking for between 215,000 and 225,000 signatures for each petition - a total of about 450,000 signatures.But, CPR cannot begin to collect signatures until the league's lawsuit challenging the title of the petition is concluded. The appeals court has ordered a 4 1/2-month briefing schedule, which would result in a decision no sooner than January or February 2010, which would leave only three months to collect the necessary signatures."It should be hard to change government," said Frank Calzone, CPR chairman. "But it should not be impossible. The MML lawsuit challenging the ballot title is an effective delaying tactic."According to City Attorney Dan Vogel, the league's motives are strictly to educate the public about what's on the petition. The organization wants the ballot to say that local governments would be prohibited from using eminent domain to take property in nuisance cases.Calzone said the petition sought only to prevent local governments from using eminent domain to take property for private use.But there is more to it than that, said Vogel. Vogel's firm, Cunningham, Vogel and Rost, has represented the league and drafted language opposing the petition.Vogel said the petition, if passed, would spell doom for city code enforcement."Not only weeds and high grass, but crack houses and crumbling properties falling on babies, would remain," Vogel said.Calzone said Vogel's claims that under the amendment nothing could be done to shut down a crack house would have been easy to refute if the mayor had allowed some input after Vogel spoke, which he did not.He also said the proposed amendment allows for cities to take property in nuisance cases, but only after final judgment in a court of competent jurisdiction.Vogel said final judgment required a series of court actions and appeals that would allow the nuisance to continue for prolonged periods, endangering citizens subjected to the nuisance.He (Vogel) said cities should be able to take property in nuisance cases, such as the practice in drug busts, without having to go through the courts prior to the action.Vogel also said in all "taking of property" cases property owners have the right of final adjudication and can go to court to have a judge determine whether or not the government acted appropriately in taking their property.Matthew Hay, Arnold councilman, took issue with Vogel's participation in the discussion while sitting on the Pacific government podium. Hay also said it was inappropriate for Vogel to fail to disclose that he was a paid representative of the MML.Vogel, disagreed, calling himself a government official who had a bound duty to clarify the record when the public good was involved.Both Calzone and Vogel voiced concerns that Missouri voters need to be educated on the use of eminent domain and possible changes if voters approved the amendments in the CPR petition."It was discouraging to have traveled two hours to provide some balance about what the amendment does and does not do and then not have a chance to counter Vogel's misrepresentation of the amendment," Calzone said. "He (Vogel) seems to think that the city should have the power to destroy or diminish someone's property without giving the owner the benefit of due process of law."Vogel said the issue is one of protecting the public."The property owner's rights should not trump the rights of the public to be protected from nuisances," he said. "The city has an obligation to protect the public."Vogel also said he would like to see the arguments on both sides printed to help the public understand the seriousness of the issue.The full petition can be read on the CPR Web site at www.mo-cpr.org.The league's response to the petition can be read on the organization's Web page at www.mocities.com.Despite the length of time spent on eminent domain, Lawrence said she still wants the city to withdraw its membership in the league."This is not really about a particular initiative petition, although the MML has made an all-out effort to thwart the initiative petition for eminent domain reform," Lawrence said. "This is about the citizens rights to initiative petition and the MML using their wealth and power to tie up initiative petitions in court."
©Washington Missouri 2009
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