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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

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“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.

 

Strong Towns: a nice idea


Structures that keep expanding bear the risk of collapsing under their own weight. As towns and cities grow, they have more and more roads and sewer and water lines to maintain. Even though developers are generally required to install streets and sewer and water lines, at least part of the cost maintaining and replacing these facilities falls on local governments, i. e., taxpayers.

Through a mention on the always interesting land-use blog Austin Contrarian, I learned about Strong Towns, an organization whose mission statement makes the claim that our preference for growth by adding infrastructure should be replaced by a focus on getting a higher return on existing infrastructure. The existing approach, Strong Towns argues, causes economic stagnation and decline and a dependence on public subsidies, because it is a “Growth Ponzi Scheme.”

While many of the ideas mentioned on the Strong Towns website, especially the blog, include concepts that are common with New Urbanism, the Strong Towns movement is founded on the forecasts of civil engineers–not the dreams of idealistic planners–who believe that that the mechanism of developers adding infrastructure to facilitate growth is financially unsupportable.

In Missouri, where much growth takes place outside incorporated towns and cities, homeowner associations (HOAs) rather than local governments have the burdens of maintaining and replacing some of the infrastructure for planned communities and subdivisions. At the same time, no funding system is in place to support the public infrastructure (arterial roads, sewer plants, etc.) which serve planned communities that have HOAs. In addition, HOAs have their own problems, especially their dependence on volunteers to handle complex issues.

The hard reality is that residential developments rarely generate enough sales tax or property tax to make the residential development pay its way in the long run. Unless we want to raise property taxes, we need to get more from the infrastructure we’ve got.

Subdivision developer gets nailed for assessments and has no special developer rights


Missouri Western District Court of Appeals just affirmed a trial court’s judgment in a way that will resound with homeowners’ association (HOA) boards across the state, many of which are struggling to raise sufficient revenues to take care of streets and amenities, even though many of the developer-owned lands that benefit from the streets are apparently exempt from assessments.

Lenders that have foreclosed on developers may find that this opinion undermines the lenders’ ability to claim to enjoy the developer’s exemption from assessments on lender-owned land. Parties purchasing land from lenders, hoping to have the status of the former developer, may find themselves heavily in debt to the HOA, perhaps blaming the lenders who sold them the land.

In Woodglen Estates Association v. Dulaney, Dulaney obtained 17 parcels of land from the FDIC. This land had once been owned the original developer Braeman, then passed through the hands of a few different parties, before ending up with the FDIC, which had taken the parcels of land from a failed bank.

The Woodglen Estates Association hired an auditor to review its finances. The auditor discovered that land owned by Dulaney had not been assessed for several years. The association then sued Dulaney, and Dulaney asserted two defenses:

  • As successor to the original developer, Dulaney should be exempt from assessments on land it owned.
  • Much of the land that Dulaney owned in Woodglen was in “parcels,” not having been subdivided into “units,” so that it should not be assessed.

The appellate court looked at the line of Missouri case law that holds that the special rights and privileges of a developer, typically reserved in the declaration of covenants for the subdivision, do not automatically pass with ownership of the developer’s real estate. These rights, called “developer rights,” “declarant rights” or “development rights,” may be assigned, but a party claiming to hold these rights has to be able to prove to have acquired them by assignment. Dulaney had no proof of assignment of declarant rights.

To make matters worse for Dulaney, the Woodglen declaration did not contain an exemption for the developer’s real estate–which is a common feature of declarations–and the appellate court noted that developers do not receive an automatic exemption. Under current Missouri law, other than in condominiums, a developer may lawfully reserve an exemption from assessment for its own real estate. The original developer simply failed to create the exemption when filing the declaration and made the mistake of including land in the declaration that was not ready to be developed.

Dulaney argued that its “parcels” were not subject to assessment, since only “units” and “unit owners’ could be assessed. The appellate court noted that some of the declaration’s provisions were ambiguous when addressing the respective rights of owners of units and parcels, but the assessment provisions were clear:  “each owner shall be obligated to pay to the Board such sum as shall have been established….,” without distinguishing between owners of units and parcels. The legal description attached to the declaration had included Dulaney’s parcel, placing this land under the provision of the declaration.

For lenders, the lesson is that any loan documents for a development loan should include a security interest in the declarant rights, and any documents showing the recovery of the developer’s real estate should include a specific assignment of the declarant rights. When the lender sells the former developer’s property, the conveyances to the purchaser should include the assignment of declarant rights. These issues are covered in more detail in this essay.

Elected representatives trump democracy, as Missouri legislature overrides initiatives


When a million Missourians adopt an initiative petition, why should our elected representatives be allowed to override the voice of the people? According to Howard Wright’s blog post, it’s because they can.

Wright describes how our elected representatives have acted to undermine legislation adopted through the initiative petition process provided for in the Missouri Constitution. In particular, Missouri’s puppy mill initiative adopted in 2008 was overturned by the General Assembly in 2009. After Missouri voters approved a minimum wage law in 2006 with a 76% majority, the Missouri House of Representatives attempted to repeal this law, though the bill died in the Senate.

A citizen group called “Your Vote Counts” is attempting to amend the Missouri Constitution to impose a requirement of a 75% vote of the General Assembly to override the voters. Wright suggests that the initiative procedure is a check against the power of dominant political parties, which could otherwise block the will of the vast majority of the voters.

 

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