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Missouri judges have discretion in creating private road maintenance plans

Posted on October 4, 2018 by Harry Styron

In 2012, the Missouri General Assembly gave circuit court judges the ability to create road maintenance plans over shared private roads under some circumstances, enacting what is now section 228.369 of the Revised Statutes of Missouri. I wrote about the promises of this legislation when it was enacted, pointing out some of its features and limitations. Now we have the first appellate decision concerning this statute, which indicates that judges in trial courts can exercise discretion in:

  • the manner in which assessments for road maintenance are allocated among the property owners who use the road
  • designating which portions of a road are to be maintained by particular classes of property owners.

The case is Stieren v.  Grothaus, which arose in Jefferson County, Missouri, where Sugar Mountain Road ran from a public road a distance of 713 feet to the Caress home. Later, Fordee Ridge Estates subdivision was created, and Sugar Mountain Road was extended another 3,207 feet to provide access to and from the lots in Fordee Ridge Estates.

The judge in the trial court ordered that the Caress property would be responsible only for the 713-foot portion of the road, (which the appellate opinion refers to as the “Entrance and Hill”) while the owners of lots in Fordee Ridge Estates would be responsible for the Entrance and Hill, plus the 3,207 portion of Sugar Mountain Road (referred to as the “Subdivision Road.”). Some Fordee Ridge owners were unhappy with the trial court’s order and appealed, claiming that:

  • the court erred in apportioning the maintenance costs for the Subdivision Road equally among the Fordee Ridge Estates owners, omitting the Caress property owners whose properties were not in the Fordee Ridge Estates subdivision, and
  • the court was without authority to divide Sugar Mountain Road into two sections (the Entrance and Hill section and the Subdivision Road section).

The appellate court pointed out that the language in section 228.369.2 gives the trial court the discretion to apportion the road maintenance costs “commensurate with the use and benefit to the residences benefitted by the access” by various methods, “including, but not limited to equal division, or proportionate to the residential assessed value, or to front footage, or to usage or benefit.” Thus the court’s apparent conclusion that Caress property outside the subdivision did not benefit at all from the Subdivision Road was justified on the basis of evidence of use and availability for use by mail trucks and emergency vehicles.

Even though the use by Fordee Ridge Estates owners was not equal, the appellate court noted that it “was reasonable for the the trial court to find that the very existence of a road providing access confers the same benefit to all properties: access.”

On the issue of whether the trial court was authorized to divide Sugar Mountain Road into to portions for the purpose of allocating the financial responsibility for maintenance, the appellate court looked at the evidence that the Entrance and Hill portion was built and used earlier and that the Caress properties did not use or benefit from the Subdivision Road, built later as an extension of the original Sugar Mountain Road. The appellate court concluded under these facts, “[t]he only way to apportion costs commensurate with these findings was for the trial court to establish a separate assessment for each portion of the road.”

The appellate decision should give trial judges confidence that they can take evidence and essentially force a maintenance contract on those who benefit from a private road that falls under section 228.369, with the method of allocating the costs to be based on the evidence, allowing the judge to divide the private road into sections as necessary under the circumstances.

While section 228.369 is intended to address a very real problem, it puts judges in a position of creating permanent, substantial financial relationships, which is much different from judges determining the extent of liability based on existing contracts or other relationships. Some judges will be comfortable with this expanded role, and others will wonder why the legislature would grant them a power that is in many cases beyond their expertise.

 

 

 

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New library facilities are a huge asset to Christian County

Posted on August 12, 2018 by Harry Styron

I heard some fine music on August 11 at the newly-renovated Ozark branch of the Christian County Library from Kicking Jacksie!

As you can see in the photo, we were in a bright meeting room that is available to the public. The windows overlook the Finley River Park, where a mud-run had just been completed and where on other days and nights you can see barrel racing at the Finley River Saddle Club arena, various amateur athletic events, the county fair and people having picnics or paddling kayaks.

In our public discourse, we glorify entrepreneurship and the for-profit engines that drive our economy. But what I saw Saturday reminds me that the nonprofit sector—including the government—plays a big part in providing some of the best things in our lives, such as parks and libraries, when citizens are willing to tax themselves.

Last December, I was privileged to be asked to provide legal counsel to the board of directors of the Christian County Library District and the capable director Geri Godber and assistant director Katy Pattison.

The Christian County voters had the good sense to vote an increase in the District’s property tax levy by a 2-1 margin in August 2017. A mere twelve months later and the District has delivered an 8,000 sq. ft. branch in Nixa in a former office suite leased (with a purchase option) from Southern Bank and a complete renovation of the original branch in Ozark, adding a children’s reading room.

For both the Nixa and Ozark projects Sapp Design Architects, led by project architect Devon Burke and senior project manager Jim Stufflebeam, provided designs and Nesbitt Construction was the general contractor.  Michael Strong of George K. Baum & Company was the District’s financial consultant, assisting with the issuance of certificates of participation.

I’ve rarely worked on renovation projects with so much cooperation and so few problems. Nor have I worked on many projects where women (Geri, Katy, Devon and most of the District’s board members) made almost all the decisions. Though my role in the District’s projects has been tiny, I’ve rarely been more proud to be associated with a client’s endeavor.

At the Ozark library, you can check out live music and other performances from time to time, and you can also check out a rod and reel and tackle box or cake or muffin pans. And there are lots of books and movies. You can use a computer that may be connected to databases that aren’t available on Google and get help from a trained librarian. There’s a room full of local history materials. Separate spaces for little kids, tween and teens, with furniture and books to fit them, will help them enjoy using the library.

Getting back to the music–which is linked to books–Jack Bowden of Kicking Jacksie! is a teacher in Hermitage who formerly entertained at Silver Dollar City, where he hooked up with drummer Andy Holloway and bassist Shannon Thomason.

Jack is a participant in Wild Bob’s Musical Book Club. This book club publishes a list of books for upcoming months. Songwriters write a song related to or inspired by the book of the month and congregate at Lindberg’s on Commercial Street once a month to perform the songs that each has written. Literature and music fuel our spirits and imaginations, so that we can go on working. For the performance at the Ozark library, the two songs inspired by Where the Wild Things Are were big hits for all ages.

Everywhere I go, libraries are popular. They offer many things besides quiet spaces, including spaces with pleasant noise, helpful librarians, cake pans and fishing equipment.

One big difference between searching for information at a library and on the internet is that the internet is driven by mechanisms that obtain information from you and select information to give to you, including advertisements, based on what the advertising clients of Google and Facebook want you to see. Libraries aren’t like that.

Christian County has library facilities to be proud of and dedicated board members and employees. The 20 cent per thousand levy provides knowledge and entertainment. Even in an off-year election, Christian County voters turned out and did themselves a huge favor. More facilities are planned for the west and east ends of Christian County.

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Missouri’s Sunshine Law overrides confidentiality clause in settlement agreement and advice of counsel

Posted on November 11, 2015 by Harry Styron

On advice of its attorney, the Robinwood South Community Improvement District refused to provide a copy of a settlement agreement to John P. Strake, a member of the public who requested it.  Strake sued and filed a motion for summary judgment, stating that there was no fact question regarding whether the settlement agreement (relating to a personal injury suit) was a public record; Strake also wanted the imposition of a civil penalty and the recovery of his costs and attorney fees.

On November 10, 2015, a unanimous Missouri Supreme Court in Strake v Robinwood West Community Improvement District held that the District’s reliance on its attorney’s advice to not disclose the settlement agreement did not shield the District from being held liable for knowing and purposeful violations of the Sunshine Law.

The trial judge in St. Louis County ordered the District to provide a copy of the settlement agreement. But the trial judge also entered a judgment in favor of the District, denying the civil penalty, attorney fees and costs that were sought by Strake for the District’s knowing and purposeful violation of the Sunshine Law. The trial judge’s order did not explain why exactly she declined to impose the penalty and award costs and attorney fees, noting only that the District “was relying on the advice of counsel to avoid a lawsuit for breach of contract.”

When a city or other unit of local government enters into a settlement agreement to end a lawsuit,  officials often don’t want to encourage additional claims by disclosing how much was paid to make the plaintiff go away. Most settlement agreements contain a confidentiality clause, which may contain penalties for disclosure of the settlement terms, unless ordered by a court before the settlement is final.

Private corporations are no different, but governmental bodies in Missouri have to follow the Sunshine Law, which is Missouri’s body of statutes that require disclosure of most kinds of public records, as well as requiring that meetings of governmental business be conducted in public meetings. Some kinds of governmental records may properly be closed for a time–such as the details of negotiations to buy or sell real estate or terms of proposed settlement offers in litigation–but these records must eventually become public, unless a court determines that they should remain closed. The Sunshine Law specifies very limited grounds for keeping settlement agreements closed, not allowing courts to conceal the amounts paid by or to the governmental body.

A governmental body that knowingly violates the Sunshine Law may be penalized up to $1,000, plus paying the court costs and attorney fees of the party requesting the records. The penalty is up to $5,000 if the governmental body purposely violates the Sunshine Law, which requires proof that the governmental body had “a conscious design, intent or plan” to violate the law “with awareness of the probable consequences.” The District’s attorney had advised the District that “the most prudent course” was to refuse the request to produce the settlement agreement, while pointing out the statute that required the disclosure of the settlement agreement, apparently fearing that the consequences of breaching the confidentiality clause might be more serious than the consequences of violating the Sunshine Law.

The District’s attorney’s advice provided a basis for the Supreme Court to conclude that the District had actual knowledge of its obligations under the Sunshine Law to give the settlement agreement to Strake and the consequences of not doing so, such that its decision to withhold the settlement agreement was a purposeful violation.

The American Civil Liberties Union provided legal counsel to Strake. Those who criticize the ACLU for many of its activities should recognize that the ACLU’s action in this case was non-partisan and strongly in support in openness in government. The Missouri Press Association also participated in the appeal.

 

 

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Chasing manufacturing jobs? Good luck.

Posted on November 18, 2012 by Harry Styron

Every civic-minded American believes that prosperity is simply a matter of a factory coming to his town. Not one one that belches pollution, but “light industry” or “clean manufacturing.”

While a few such factories exist and a new one will come to the Ozarks once in a while, I’m doubtful that a policy directed at reeling in these factories should be a major part of an economic development strategy.

In his very brief essay, “Fetish for making things ignore real work,” John Kay breaks down the purchase price of an iPhone, which (ignoring the carrier subsidy, or what Verizon or ATT discounts it to you to get you to sign a contract) is about $700. He says the valuable parts–the camera and flash drive, not likely to be made by Ozarks labor–account for about $200. The assembly and the cheap parts amount to about $20. Most of the rest of the purchase price is returned to those brilliant people who designed the iPhone, its operating system, and its advertising and their shareholders.

Kay’s main argument is relevant to the local economic development director and chamber of commerce committee:

Where will the jobs come from in a service-based economy, manufacturing fetishists ask?

From doing here the things that cannot be done better elsewhere, either because of the particularity of the skills they require, or because these activities can only be performed close to home.

Manufacturing was once a principal source of low-skilled employment but this can no longer be true in advanced economies.

Most unskilled jobs in developed countries are necessarily in personal services. Workers in China can assemble your iPhone but they cannot serve you lunch, collect your refuse or bathe your grandmother.

If you’re wondering where in the USA the good technical jobs are, and which regions are experiencing growth, check out “The emerging technical, professional and scientific sector” by Rob Sentz. Missouri and Arkansas are losers, though the Kansas City area has significant growth.

If we want to have good jobs in the Ozarks, we have to invest our own money and energy. A big and difficult part of this challenge lies in raising expectations of our children, our schools, our civic and business organizations and our elected officials.

Otherwise, the best that many of our children can hope for is a job serving lunches, collecting refuse and bathing their elderly parents and grandparents.

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Taxpayers vs. Ratepayers: Taxpayers lose

Posted on August 31, 2011 by Harry Styron

St. Charles County wanted to widen a road, which required moving the gas line within the right-of-way of Pittman Hill Road. Pittman Hill Road was created by subdivision plats which designated the road’s right-of-way as a utility easement for gas lines (among other utilities), dedicating the entire right-of-way to the public. 

The County asked Laclede Gas Company to pay for the relocation of its gas lines to the right-of-way of the reconstructed road. Laclede claimed that this amounted to an unconstitutional taking of its property. On a motion for summary judgment, the trial court ruled for the County, requiring Laclede Gas to pay for the relocation. Laclede appealed directly to the Missouri Supreme Court.

On appeal, the County made four objections: Read the rest of this entry →

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If the plat complies with the regulations, approval is mandatory

Posted on August 19, 2011 by Harry Styron

Real estate developers (remember them?) sometimes feel as though they’ve been pulled through a knothole backwards by the time they get a proposed subdivision plat to the stage at which it can be submitted to the local government for approval. According to several Missouri appellate opinions, if a proposed plat complies with the subdivision regulations, the local government has no choice but to approve it.

But reality is different, as shown by Alexander & Lindsey v. Platte County, an opinion issued last week by the Court of Appeals for the Western District of Missouri. The court reversed the trial court’s refusal to order that the Platte County Commission approve Alexander & Lindsey’s preliminary subdivision plat. But the appellate court noted that the county government would have additional opportunities to coerce Alexander & Lindsey into making more concessions if it attempted to go beyond the preliminary plat to the submittal of a final plat.

“Preliminary plats” are not mentioned in Missouri’s statutes that authorize counties to adopt and administer subdivision regulations. But the two-stage plat approval process is valuable for developers and planning and zoning boards. The preliminary plat approval process is often the means of obtaining approval for an entire project to be constructed in phases. Once the preliminary plat is approved, the developer can proceed with some confidence that final plats of each phase of the project will be approved when submitted. The preliminary plat approval process, sometimes done in conjunction with a rezoning application, introduces the proposed project to the public and the scrutiny of neighbors and a variety of government agencies.

During the preliminary plat approval process, the developer learns that the subdivision regulations, as written, do not represent the full scope of requirements. Often the government’s preferences for stormwater control, traffic signals, intersection improvements and other expensive issues are not expressed in the regulations. The preliminary plat application doesn’t seem to move forward, until the developer has agreed to install infrastructure that is beyond the requirements of the regulations.

When Alexander & Lindsey submitted a preliminary plat for a commercial subdivision with five lots ranging in size from 2 to 4.6 acres. Alexander & Lindsey completed a traffic study and a drainage study, which were approved by the county’s engineer and the Missouri Department of Transportation (MODOT).  The Platte County planning and zoning director found that it complied with the county regulations and recommended that the P&Z board approve it.

When the preliminary plat hearing took place before the P&Z board, several persons expressed concerns. Expressing “concerns” are a common manner of objecting to a project for reasons that are not based on regulations. A public water supply district represented that it could supply drinking water, but not in adequate volume or pressure for fire-suppression. An alderman from the nearby town of Weston was concerned that the project’s building setback line was only 75 feet, rather than 100 feet, as required by Weston’s ordinance; Weston had previously rejected the developer’s annexation petition. MODOT’s engineer stated that MODOT regulations did not require the elimination of a driveway, as suggested by a P&Z board member.

Even though the proposed preliminary plat fully complied with all regulations, the P&Z board voted it down. The developer appealed to the Platte County Commission, which was not bound to follow the P&Z board’s recommendation. The Commission upheld the P&Z board’s denial, citing four reasons:

  • lack of specification of proposed uses
  • lack of water for fire suppression and lack of sewer facilities
  • potential impact of possible sewer lagoons on neighboring properties and the public
  • potential for traffic hazards from the existence two driveways

The appellate court noted that these four objections were outside the scope of the county’s subdivision regulations. Therefore, the county’s refusal to deny the preliminary plat was arbitrary, and the trial court was instructed to order the Commission to approve the preliminary plat.

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Glaize Creek Sewer District blows condemnation case, but gets new chance

Posted on March 25, 2011 by Harry Styron

At a condemnation trial, Glaize Creek Sewer District (in Jefferson County, Missouri, just south of St. Louis), didn’t put on any admissible evidence of damages to the Gorhams’ property. The Gorhams put on proper evidence of damages, showing that the value of their property after the sewer line was installed declined by $29,000. The Missouri Court of Appeals reversed the jury verdict of zero damages (based on an appraiser‘s unsubstantiated opinion testimony), and sent the case back for a new trial.

Two things are unusual about this case: Read the rest of this entry →

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Judge corrected for merging both Carroll County judicial districts

Posted on October 22, 2010 by Harry Styron


Eureka Springs and Berryville, both towns in Carroll County, Arkansas, are just eight miles apart, separated by the valley of the Kings River. The Arkansas legislature in 1883 created a judicial district for the county west of the Kings River and the another judicial district on the east side of the river.

But in 2010, for reasons not explained in the Arkansas Supreme Court’s opinion, Parker v. Crow, Eastern District Judge Gerald Crow ruled that henceforth there would be only one judicial district in Carroll County.

Eureka Springs, west of the Kings River, is a tourist town and art colony, known for its Victorian architecture, with bathhouses, galleries and restaurants in a setting of steep hills and narrow streets, all maintained with strict building controls.
Berryville sits on a stretch of prairie east of the Kings River, surrounding by rolling hills and cattle and poultry farms. A Tysons poultry processing plant and a Walmart Supercenter are among the town’s largest employers.

In 1869, as northern Arkansas began to recover from the ravages of the Civil War, Boone County was created from the eastern portion of Carroll County, with Harrison as the county seat. Carrollton, a settlement 20 miles southeast of Berryville, was no longer at the center of Carroll County, and Berryville’s boosters succeeded in having the county seat established in Berryville in 1875.

In 1883, the Eureka Springs Railway was extended south from Missouri, and Eureka Springs quickly blossomed into a small city of hotels (quaint and magnificent) and bathhouses, fed by the waters of dozens of springs. The same year, the Arkansas General Assembly passed Act 74, creating two judicial districts for Carroll County.

Judge Crow’s bold attempt to merge the two districts probably left the Arkansas Supreme Court dumbfounded, but the opinion restoring the two districts simply cites some basic principles of American government to indicate the degree that Judge Crow’s opinion was off-base.

Judge Crow’s first contention was that the 1883 act of the legislature creating the two districts was unconstitutional because it attempted to create a new county, even though the language of the statute specified that the districts were to keep separate records as though they were in different counties, but that Carroll County should in all other respects “be one entire and undivided county.”

Judge Crow also determined that at 1997 legislative act, among other laws, repealed the 1883 act by implication. The Arkansas Supreme Court recited the rule that repeal by implication “is never allowed except where there is such an invincible repugnancy” that the old and new laws “cannot both stand together.” The 1997 law, and the others, may be messy and partially inconsistent, but they did not specifically repeal the 1883 act.

Almost as an afterthought, the Arkansas Supreme Court examined the Arkansas constitution, noting that the power to establish or dissolve judicial districts was a legislative power, not something that a judge could do.  Quashing Judge Crow’s attempt to merge the two judicial districts, the Supreme Court said that his order “shows a plain, manifest, clear and gross abuse of discretion.”

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Table Rock Lake and the cost of economic activity

Posted on June 7, 2009 by Harry Styron

Kathleen O’Dell’s article about the economic impact of Table Rock Lake in today’s Springfield News-Leader, entitled “Table Rock Dam Gives Much Back to Area,” covers a lot of ground in describing the various kinds of economic activities that are related to the construction and continued existence of Table Rock Lake.

In an economic sense, is the Table Rock Lake area fit (efficient and nimble) or obese (expensive to maintain and subject to falls)? As pointed out below, the two counties most affected by Table Rock Lake have experienced the area’s lowest growth in Read the rest of this entry →

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Posted in Branson, county government, economic development, Missouri, Missouri economy, Ozarks, Ozarks economy, real estate development, Taney County, tourism, water law (streams, lakes and groundwater) and tagged , , , , , , , , , , . Bookmark the permalink.

When the iris blooms, it’s time to challenge your property tax value

Posted on May 3, 2009 by Harry Styron

iris-and-tax-notice-002

You may think of property taxes only when you get your property tax bill in November, with your taxes due by year end. But in November and December, you’re generally too late to do anything but pay the taxes.

Spring is the time of year that you can actually do something about the amount of your taxes, so that the November tax statement will not be such a shock. You can appeal to the board of equalization. Here’s how Read the rest of this entry →

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