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Missouri governor signs HB1103, giving courts power to order maintenance of “private roads”


The Missouri General Assembly enacted HB 1103 in the past 2012 regular session, which explicitly grants circuit court judges the authority to impose financial responsibility for maintenance of certain “private roads” onto parcels of real estate that benefit from these roads. Governor Nixon signed the bill into law on July 12, 2012.

There are many problems with rural roads in Missouri. Simple questions–such as determining who owns the road, whether it is a subject to property taxes, who has the right to use it, and who is obligated to pay for its maintenance–are often impossible to answer.

HB 1103’s provisions regarding private road maintenance change section 228.368 RSMo and add three new sections to Chapter 228 of the Revised Statutes of Missouri. This legislation is an attempt to solve the problem of nobody stepping forward to pay for road maintenance in situations in which no provision was made when the road was created. But its definition of “private road” greatly limits its applicability.

According to the new section 228.341, a “private road” means “any private road established under this chapter or any easement of access, regardless of who created, which provides a means of ingress and egress by motor vehicle for any owner or owners of residences from such homes to a public road. A public road does not include any road owned by the United States or any agency or instrumentality thereof, or the state of Missouri, or any county, municipality, political subdivision, special district, instrumentality, or agency of the state of Missouri.” Got that?

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Great food in an unexpected location: Sparta’s Mossy River Pie Hole


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I felt that the words above the window were speaking directly to me.

I couldn’t help but pull over while I was on one of my noontime foraging expeditions on the east side of Ozark, Missouri.

Set up under a shade tree at the corner of Missouri highways 14 and 125 in Sparta, about eight miles east of the Ozark WalMart and US 65, Gjetta Moss has just started her second month serving delicious lunches and suppers.

I keep coming back for more. Today I had lemonade from just-squeezed lemons, which paired perfectly with a BLT and peppery coleslaw.

Despite a couple of college degrees and years of restaurant experience, Gjetta hasn’t found the job she needs. She’s trying the time-honored bootstrap method of making her way in the world, keeping the overhead low and the quality of the food as high as she can make it, served with a big smile.Image

Getting a Missouri collector’s deed after a tax sale just became harder

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On July 3, 2012, the Missouri Supreme Court released two opinions that clarify the procedure by which purchasers of tax certificates at the annual August sales may obtain deeds to the tax-delinquent property. Both cases illuminate section 140.405 of the Revised Statutes of Missouri with respect to the content and timing of notices (“redemption notices”) required to be sent to the delinquent taxpayer (and others, such as lienholders) so that the tax sale purchaser can obtain a deed to the property for which the purchaser has paid the delinquent taxes and received a “certificate of purchase” which I refer to here as a tax certificate. These new decisions apply to first-year sales and second-year sales, not third-year sales, which have different redemption rules.

Redemption notices must be sent at least 90 days before August anniversary of sale

Harpagon MO, LLC v. Bosch overrules Read the rest of this entry

Court forces Missouri church to pay its attorney

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There’s nothing less spiritual than a bill from a lawyer, except a judgment against the church in favor of a lawyer who sued a church for an unpaid fee.

Lawyers and courts are worldly by their very nature. While churches and courts want to do what is right, they have different standards for determining rightness. The Missouri Court of Appeal’s decision in Teasdale & Associates v. Richmond Heights Church of God in Christ demonstrates just how differently courts and a church Read the rest of this entry

“Plus interest” is implied by court from contract for deed to defeat buyer’s claim


The contract for deed stated that the purchase price was $30,000, to be paid with $3,000 down and 144 monthly payments of $300. The buyers made 90 payments of $300, for a total of $27,000, and demanded a deed.

While the amount financed was stated to be $27,000, the product of 144 monthly payments of $300 would be $43,200.   On the seller’s motion for summary judgment, the trial judge held that the buyers were not entitled to the deed, because the contract required payment of 144 installments of $300, not 90 installments.

The Southern District Court of Appeals agreed  with the trial judge in Webbe v. Keel, stating:

It is not ambiguous for 144 monthly payments to exceed this contract’s sale price because the time value of money is a judicially-known concept.

Even though the contract did not specifically mention interest on the $27,000, the court apparently saw the buyer’s agreement to pay $16,200 in excess of the $27,000 balance over 12 years to be an agreement to pay interest.

Because the case involved contract interpretation, it could be ruled on by a judge without a trial on a motion for summary judgment, unless the trial judge found that the contract was ambiguous. If the trial judge found the contract to be ambiguous, a trial would be held to obtain evidence outside the text of the contract.

Many agreements to pay money over time that are prepared by amateurs fail to mention the interest rate, how interest is calculated (360-day year or 365-day year, compounding period), early payoff provisions and how payments are to be applied  (on day received or on first day of month if received by 5th, for example).

Webbe v. Keel shows how even a very simple contract can pull the parties into court.

 

St. Louis area stormwater charge is affirmed as illegal tax


Judge Mooney’s dissent notes the enormous cost of dealing with rainwater in urbanized areas, but the other two members of the Missouri Eastern District Court of Appeals were not moved to overturn the trial court holding that a stormwater charge was an illegal tax, not a lawful user fee. The appellate opinion is Zweig v. Metropolitan St. Louis Sewer District.

Under Missouri’s Hancock Amendment, no tax may be imposed without voter approval. Since voters (and non-voters) insist on receiving government services beyond their willingness to tax themselves, governmental units may try to dress a tax in the guise of a service charge. MSD’s monthly stormwater did not pass the “Keller test,” which comprise five criteria that the appellate court characterized (adopting the words of former Missouri Supreme Court justice John Holstein) as “so vague and manipulable that they necessarily result in repetitive litigation and are ultimately unworkable.”

Regardless, the majority for the Eastern District found that at least two of the Keller criteria were not met, since the charge is applied to MSD customers whose rainwater drains outside the MSD area and because the charge is applied without a direct relationship to the service provided. The appellate court accepted the trial court’s conclusion that gave credibility to expert testimony that indicated that there was no relationship between area of impervious surface and stormwater runoff; impervious surface area was the basis for the amount of the charge.

Cassville Aldermen take on Cassville Board of Adjustment to challenge carport variance


It might seem odd to you that the Cassville board of aldermen would appeal a decision of the Cassville board of adjustment, since the board of aldermen appoints the members of the board of adjustment, and both boards are a part of the same city government. It seems odd to me that the point was not raised by the respondent on appeal.

Under Missouri statutes, boards of adjustments have some independence, and the appeal of the board of adjustment’s decision to grant a variance is the novel method that the Cassville board of aldermen chose to maintain the uniform application of their zoning regulations.

In Board of Aldermen of Cassville v. Board of Adjustment and Gerald Shaffer, nobody raised the question of whether the Board of Aldermen had the right to attempt to control the board of adjustment by appeal to circuit court. The Southern District of the Missouri Court of Appeals reversed the decision of the board of adjustment, with the effect of requiring Shaffer to remove the portion of his carport that extend over the setback line.

What are these boards?

A board of aldermen, under Missouri’s statutes for fourth-class cities, is the governing body of the city. It is the city’s legislative body, by adopting ordinances, and also the city’s executive branch, by giving orders to the mayor and city administrator. The mayor doesn’t even vote, except to break a tie.

The board of adjustment is authorized by Missouri’s planning and zoning statutes for cities, (Missouri counties have separate planning and zoning statutes) specifically sections 89. 080 through 89.110. Section 89.090 gives boards of adjustments three kinds of power:

  1. to hear and decide appeals of errors made by the planning and zoning staff,
  2. to hear and decide other appeals, as required by city ordinances, and
  3. to hear and decide applications for variances from the city’s codes relating to construction and alteration of buildings and the use of land.

The board of adjustment has the power to reverse, affirm or modify decisions of the planning and zoning board and its staff.

Under section 89,110, persons aggrieved by the decision of the board of adjustment may appeal the board’s decision to the circuit court of the county. Rather than hear evidence, the circuit court reviews the record of the proceedings of the board of adjustment, as though the circuit court were an appellate court.

Why did the Cassville board of aldermen take this matter so seriously?

Was the Cassville board of aldermen aggrieved by the decision of the board of adjustment to allow  Mr. Shaffer to have a carport that extended closer to his property line than the five feet allowed by Cassville zoning regulations?

In most challenges to the right of a party to appeal a board of adjustment’s decision, Missouri courts have been reluctant to give that right to just anyone who claims to be aggrieved. In other cases, neighbors who did not protest the decision at the board of adjustment hearing have been denied the right to appeal, as has a St. Louis alderwoman.

Regardless of the issue of whether the Cassville board of aldermen had the right to appeal the decision, the aldermen apparently wanted to hold the board of adjustment to compliance with the standards of the Cassville ordinances pertaining to variances.

Variances for structures and uses

Variances from strict application of zoning codes are allowed when the board of adjustment (or another board having such powers) has determined that the criteria for granting variances have been met. Cassville’s ordinances required that all five criteria contained in the ordinance be met, all highly subjective except that the hardship alleged to exist must not have been created by the owner or applicant and that the condition for which the variance is required must be unique to the property.

The Court of Appeals judges agreed with the Cassville aldermen’s contention that nothing about the Shaffer property was unique and that the alleged hardship–which was that visitors might have to walk to his door in the rain–was trivial.

 

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