Opinion
WD 83441
01-12-2021
Rickie L. STANTON, Appellant, v. CITY OF SKIDMORE, Missouri, Respondent.
Rick L. Stanton, Skidmore, appellant pro se. Jean A. Maneke, KCMO for respondent.
Rick L. Stanton, Skidmore, appellant pro se.
Jean A. Maneke, KCMO for respondent.
Before Division Three: Edward R. Ardini, Jr. P.J., and Alok Ahuja and Gary D. Witt, JJ.
Alok Ahuja, Judge
Rickie L. Stanton filed a petition for declaratory relief in the Circuit Court of Nodaway County, contending that a nuisance ordinance enacted by the City of Skidmore was invalid. The City asserted two counterclaims, alleging that Stanton had violated the nuisance ordinance and a separate parking ordinance. The circuit court granted the City summary judgment on Stanton's petition and on its counterclaims. Stanton appeals. We affirm the grant of summary judgment to the City on Stanton's petition, and on the City's counterclaim alleging violation of the nuisance ordinance. Because the City failed to establish the content of its parking ordinance with competent evidence, we reverse the grant of summary judgment on the City's second counterclaim, and remand for further proceedings on that claim.
Factual Background
Stanton owns property in Skidmore, on which he operates a salvage and wholesale business dealing in scrap metal and reclaimed lumber. Part of Stanton's property adjoins a public alleyway.
In 2015 the Skidmore City Council enacted a nuisance ordinance. On December 28, 2018, the City's attorney notified Stanton that he was violating the nuisance ordinance by parking prohibited vehicles on his property; by storing pallets and other refuse on his property; and by allowing weeds and other "rank growth of vegetation" on the property. The letter advised Stanton that he was required to abate the nuisance on his property within seven days, or the City would take further action against him.
At Stanton's request, the City Council held a hearing on the citation on January 28, 2019. Although the City presented evidence at the hearing, Stanton did not testify or present any evidence of his own. Following the hearing, the City Council issued its Findings of Fact and Order Regarding Appeal, finding that Stanton was in violation of the nuisance ordinance. The City Council's Order found that "there is an accumulation of debris, refuse, rubbish, trash or nuisances, on the city's right of way" adjoining Stanton's property. The Order also found that Stanton was violating the nuisance ordinance by storing unstacked lumber, from which nails had not been removed, outside of the property's "rear yard." The Order found that Stanton was also violating the nuisance ordinance by storing abandoned, unlicensed and "junk" vehicles on his property which were visible from adjacent properties, and that Stanton was not exempt from the prohibition on vehicle storage because he was not operating a licensed salvage, auto repair, or auto towing or storage facility. The Order specified that, if Stanton did not abate the nuisance by February 25, 2019, he would be fined $100.00 per day for any continuance of the nuisance; the Order also advised Stanton that the City might seek equitable relief in the circuit court if the nuisance were not timely abated.
On March 11, 2019, Stanton filed a petition for declaratory judgment and judicial review in the Circuit Court of Nodaway County. In Count I, Stanton's petition alleged that the nuisance ordinance is invalid because: "the statutory provisions relating to the passage of city ordinances were not followed"; the ordinance was purportedly passed in 2015 but no vote of the City Council was taken at that time; the ordinance is unconstitutionally vague and ambiguous; the ordinance denies Stanton due process of law because the City Council heard and decided his appeal, after making the initial decision to cite Stanton; and the ordinance is inconsistent with state law. In Count II, Stanton alleged that the nuisance ordinance is unconstitutional as applied, because it was being selectively enforced against him. Count II also alleged that the nuisance ordinance had the effect of prohibiting Stanton's pre-existing "business of salvage and pallet rehabilitation," and therefore constituted a taking of his property without just compensation. In Count III, Stanton alleged that the City had abandoned the alleyway adjoining his property by failing to maintain it, and that he had acquired ownership of the alley property by adverse possession.
The City's answer to Stanton's petition asserted two counterclaims. The City's first counterclaim sought a declaration that Stanton was in violation of the City's January 28, 2019 order. The City asked the court to assess a fine against Stanton for his failure to abate the nuisance as required by the City Council's Order, and to issue an injunction prohibiting Stanton from continuing to violate the nuisance ordinance. The City's second counterclaim alleged that Stanton had encroached on or blocked the City's alleyway by placing vehicles, pallets, and other scrap materials in the alley, in violation of a City parking ordinance, Ordinance 2018-POS-B. The City's second counterclaim alleged that violations of Ordinance 2018-POS-B are subject to punishment by a fine of up to $500.00, incarceration for up to 90 days, and assessment of the costs of removing materials encroaching on the right of way. The City asked the court to find that Stanton was in violation of Ordinance No. 2018-POS-B, and impose an appropriate fine or other penalty on him.
Stanton filed an answer denying the allegations in the City's counterclaims on May 1, 2019.
On May 15, 2019, the City filed a motion for summary judgment on its counterclaims. The circuit court granted the motion on August 8, 2019. On the City's counterclaims, the court declared that Stanton "is in violation of the Order of the City of Skidmore dated January 28, 2019," and that Stanton "is in violation of, and continues to violate, the City of Skidmore's City Ordinance 2018-POS-B." The court rejected the City's prayer that the court fine Stanton, or enjoin him from further maintenance of a nuisance. The court denied further relief on the basis that "[t]he present action is one of declaratory judgment, not a criminal matter pertaining to ordinance violations," and that the City had failed to adequately plead a claim for injunctive relief.
On September 13, 2019, the City filed a second motion for summary judgment, this time directed at the claims asserted in Stanton's petition. The circuit court granted this second motion on November 26, 2019, and dismissed Stanton's affirmative claims. The court emphasized that its judgment "is of legal necessity founded on the very narrow procedural issues presented to [the court] by the parties." The judgment states that the City "remain[s] free to pursue enforcement of the ordinance against [Stanton] in the municipal court via a criminal action," and that "[t]his Court is not offering any opinion as to whether the City would have civil enforcement options available to enforce its ordinance or otherwise address nuisance concerns in the City."
Stanton appeals.
Standard of Review
Appellate review of the grant of summary judgment is essentially de novo. "The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially." This Court reviews the record in the light most favorable to the party against whom judgment was entered. "Summary judgment is appropriate when the moving party has [established], on the basis of facts as to which there is no genuine dispute, a right to judgment as a matter of law."
Newton v. Mercy Clinic E. Cmtys. , 596 S.W.3d 625, 628 (Mo. 2020) (citations omitted). "We will affirm a summary judgment on any theory supported by the record." Lewellen v. Univ. Underwriters Ins. Co. , 574 S.W.3d 251, 265 (Mo. App. W.D. 2019) (citation omitted).
Discussion
Stanton asserts six Points on appeal. We address them in the order presented. I.
Stanton's first Point argues that the nuisance ordinance's enactment did not comply with the procedural requirements of § 79.130, RSMo. Specifically, Stanton contends that the ordinance was never signed by the Mayor, that the ordinance was not read during the City Council's meeting prior to its passage, and that the vote for and against passage of the ordinance was not properly recorded. Stanton also argues that the ordinance was never properly amended to allow the City Council to serve functions assigned in the ordinance to the (nonexistent) "Director of Public Works" and "City Manager."
Stanton did not preserve the arguments made in Point I in the circuit court, either in his petition or in his summary judgment briefing. Stanton's petition alleged generally that "the statutory provisions relating to the passage of city ordinances were not followed" when the nuisance ordinance was passed. But he alleged no specific defects in the ordinance's enactment in his petition. "Missouri is a fact pleading state." Gardner v. Bank of Am., N.A. , 466 S.W.3d 642, 646 (Mo. App. E.D. 2015) (citation omitted). To state a claim, "a petition must contain a short and plain statement of the facts showing that the pleader is entitled to relief." Id. (citing Rule 55.05). The petition must, at a minimum, "plead ultimate facts demonstrating" that the claimant is entitled to relief; mere conclusions are not sufficient. Williams v. Barnes & Noble, Inc. , 174 S.W.3d 556, 560 (Mo. App. W.D. 2005) (citation omitted). "Courts disregard conclusions not supported by facts in determining whether a petition states a cause of action." Id. (citation omitted).
The general allegations of Stanton's petition failed to identify any specific defects in the passage of the City's nuisance ordinance. In addition, he did not allege any particular procedural defects in the ordinance's passage in response to the City's motion for summary judgment on his affirmative claims.
Because Stanton failed to preserve the arguments made in Point I in the circuit court, they cannot serve as a basis for reversal on appeal. "Arguments not raised before the trial court ... are not preserved for review on appeal because [w]e will not convict a trial court of error on an issue that was not put before the trial court to decide." Bartsch v. BMC Farms, LLC , 573 S.W.3d 737, 743 (Mo. App. W.D. 2019) (citation and internal quotation marks omitted).
Point I is denied.
II.
In his second Point, Stanton argues that the nuisance ordinance violates due process. Specifically, Stanton argues that the ordinance failed to provide him a meaningful appeal process when the same City Council which issued or authorized the original nuisance citation then acted as the appeals tribunal reconsidering the citation. Stanton argues that this process fails to provide an opportunity to be heard in a meaningful manner and lacks "fundamental fairness."
Stanton's due process argument is meritless. The Missouri Supreme Court has recognized that in the context of administrative proceedings, "[d]ue process is satisfied if there be either an administrative hearing subject to judicial review or the right to have a hearing in a court which may adequately review the administrative decision." State ex rel. Leggett v. Jensen , 318 S.W.2d 353, 358 (Mo. 1958) ; accord Blydenburg v. David , 413 S.W.2d 284, 290 (Mo. 1967) (same); Dove v. Dir. of Revenue , 704 S.W.2d 713, 715 (Mo. App. W.D. 1986). The Court has specifically held that the fact "[t]hat an administrative body initiates a charge and then tries it does not alone vitiate the proceedings, if judicial review is provided." Ross v. Robb , 662 S.W.2d 257, 260 (Mo. 1983) ; accord Artman v. State Bd. of Registration for Healing Arts , 918 S.W.2d 247, 250 (Mo. 1996) (finding no due process violation where, in connection with allegations of medical incompetency, the Board of Registration for Healing Arts "serves as investigator, prosecutor, judge, and jury"). "[A]dministrative agencies by their nature perform a combination of the investigative and adjudicatory functions. To permit them to do so does not violate the strictures of the due process clause absent an actual showing of bias." State ex rel. Martin-Erb v. Mo. Comm'n on Human Rights , 77 S.W.3d 600, 610 (Mo. 2002) (citations and internal quotation marks omitted); see Turner v. Copley , 351 S.W.3d 49, 61 (Mo. App. W.D. 2011).
The Missouri Supreme Court has recognized that the governing bodies of municipalities and counties may also properly perform multiple roles. In State ex inf. McKittrick v. Kirby , 349 Mo. 988, 163 S.W.2d 990 (1942), the Supreme Court explained that the separation of powers principles applicable to State government did not apply in full force to municipal governments. The Court explained:
City councils and town boards, while primarily exercising legislative functions, also perform many executive and administrative acts. The county court of each county in Missouri is a court of record but actually performs very few judicial functions. It is primarily both a legislative and an administrative body. ... To hold that the doctrine of separation of powers must be rigorously applied to counties and cities would upset many institutions of long standing and great usefulness. We are not persuaded that such is the law.
Id. at 996. The Court rejected the argument that an amendment to the City of St. Louis’ charter was unconstitutional because it vested in the Civil Service Commission "the power to make rules and also the power to hold hearings on complaints and in the course thereof to subpoena, swear and examine witnesses." Id.
Courts have recognized that city councils and county commissions may act in a legislative capacity in enacting land-use ordinances or regulations, and later act in an administrative and/or quasi-judicial capacity in addressing the rights of particular persons under those ordinances or regulations. The Supreme Court explained that:
Zoning and plat approval represent different types of authority in political subdivisions. "Zoning" is the exercise of legislative authority as to what land uses are in the interest of the public for particular areas within the political subdivision. The governmental body has great latitude in this regard. "Plat approval" is the ministerial application of zoning requirements, uniformly, to all particular parcels within the zoned area. Far less latitude exists in this regard, as each landowner is entitled to equal application of the zoning and planning laws applicable to his property.
Furlong Cos. v. City of Kansas City , 189 S.W.3d 157, 163 (Mo. 2006) (citation omitted). "When proceeding under the subdivision ordinance, the plan commission and the city council are acting in an administrative capacity and not in a legislative capacity." Id. at 164 (citation omitted).
Skidmore's nuisance ordinance expressly provides for judicial review of municipal decisions under the Missouri Administrative Procedure Act, ch. 536, RSMo. Because judicial review is available, Stanton's due process rights were not violated merely because the City Council both authorized the initial citation against Stanton, and thereafter rejected his application for reconsideration of the citation.
Other than arguing that the City Council improperly acted in dual capacities, Stanton has not argued that the City Council lacked authority to decide whether he was in violation of the nuisance ordinance, or that it lacked authority to impose particular remedies for any violation (such as a monetary fine or an abatement order). In this regard, see Mo. Const. art. V, § 23 ; § 479.010, RSMo ; Yellow Freight Sys., Inc. v. Mayor's Comm'n on Human Rights , 791 S.W.2d 382, 384 (Mo. 1990). The circuit court's summary judgment rulings recognized that this action arises in an unusual procedural posture, since it is an action for declaratory relief, rather than a more typical ordinance-violation proceeding brought in the appropriate division of the circuit court. Because Stanton does not challenge the City Council's exercise of adjudicatory authority, we do not address the question.
III.
Stanton's third Point challenges the circuit court's conclusion that he had not preserved his constitutional challenge to the nuisance ordinance, because he had not raised his constitutional arguments before the City Council. We have rejected Stanton's constitutional claims on the merits in § II, above. It is therefore unnecessary to address the circuit court's conclusion that Stanton had failed to raise his constitutional arguments at the earliest opportunity.
IV.
In Points IV and V, Stanton argues that the nuisance ordinance is invalid, and cannot constitutionally be applied to his property, because his operation of a salvage business constituted a pre-existing non-conforming use.
Stanton cannot rely on the "pre-existing non-conforming use" doctrine in this case. The City is not seeking to enforce a zoning ordinance which prohibits Stanton from conducting his pre-existing business in a particular location, but is instead seeking to enforce a health and safety law. The Eastern District rejected a similar argument in St. Charles County v. St. Charles Sign & Electric, Inc. , 237 S.W.3d 272 (Mo. App. E.D. 2007). In St. Charles Sign , a business sought to prevent enforcement of a county ordinance which "required that businesses storing inventory outdoors consisting of ‘reclaimed, junked, salvaged, scrapped or otherwise previously used inventory,’ must enclose such storage with fencing." Id. at 274. The business argued that it had stored the listed materials on its property, without fencing, prior to the enactment of the fence ordinance, and that the ordinance accordingly could not be applied to its pre-existing non-conforming use. Id. at 276. The Eastern District held that the business’ non-conforming use argument was inapplicable, because the fence ordinance was not a zoning ordinance. The Court explained:
The term "nonconforming use" means the use of land which lawfully existed prior to the enactment of a zoning ordinance. The use is maintained after the effective date of the ordinance, even though it is not compliant with the new restrictions. The prior use of the property establishes a vested property right, and the new ordinance may not be applied to require the owner to cease that use. The basis for the doctrine is that applying new zoning restrictions to established uses of land would constitute a taking of private property without just compensation or due process. Here, the ordinance at issue was not a zoning ordinance. Therefore, [appellant]’s nonconforming use argument fails.
Id. at 276-77 (citations and internal quotation marks omitted).
Skidmore's nuisance ordinance is not a zoning ordinance. "[W]here the purpose of an ordinance is primarily to regulate for health concerns rather than to provide for uniform development of real estate, then the ordinance will not be held to be a zoning ordinance, but rather an ordinance related to health and welfare." City of Green Ridge v. Kreisel , 25 S.W.3d 559, 564 (Mo. App. W.D. 2000) (holding that a nuisance ordinance regulating the operation of junkyards was not a zoning ordinance); see also Borron v. Farrenkopf , 5 S.W.3d 618, 622 (Mo. App. W.D. 1999) (local ordinance governing the operation of concentrated animal feeding operations was not a zoning ordinance because, while the ordinance's standards "do have a zoning quality about them," the ultimate motivation underlying the ordinance was "the health hazards related to hog facilities," including "[g]round water pollution, pathogenic organisms, and disease").
Skidmore's nuisance ordinance explains its purpose as follows:
Unkempt, unsafe, unsanitary and otherwise improperly maintained properties, structures, sidewalks and easements within the City materially and adversely affect the use and habitability of nearby property and of property within the City as a whole. Additionally, such conditions pose hazards to the public health, safety and welfare. Properties that are unkempt, unsafe, unsanitary and/or dangerous may materially and adversely affect the economic well-being of the City. This Chapter ... establishes necessary and proper procedures to prosecute owners and occupants for nuisances, to provide for the abatement of such nuisances and other improperly maintained structures and properties.... This Chapter is an exercise of the City's police power and shall be liberally construed.
The ordinance defines a "nuisance" as "[a]ny condition or item which causes a threat to the health, safety or welfare of the public, or which prohibits routine maintenance of the premises," and includes: burning, "debris, refuse, rubbish, trash," "disease or breeding of insects or vermin," "excessive exterior lighting," outdoor furniture, "noxious or offensive odors," "pools of water," "prohibited vehicles," "waterway pollution," and "weeds and rank growth of vegetation." The ordinance does not prohibit the operation of salvage or similar businesses within City limits, but merely regulates the manner in which such businesses (and all property owners) must conduct their operations. The nuisance ordinance constitutes an exercise of the city's police power to promote the general health and welfare of the public; it is not intended to dictate the uniform development of real estate or prohibit particular activities in particular locations, like a zoning ordinance. The exemption from new zoning ordinances afforded to certain pre-existing non-conforming uses of property has no application here.
Points IV and V are denied.
V.
In his sixth and final Point, Stanton argues that the City was not entitled to summary judgment on its second counterclaim, which alleged that Stanton had violated Ordinance 2018-POS-B, because the content of the City's parking ordinance was not proven by competent evidence. We agree.
In its second counterclaim, the City alleged that Stanton had blocked the alleyway adjoining Stanton's property by placing vehicles, pallets, and scrap materials in the alleyway. The counterclaim alleged that this conduct violated City Ordinance 2018-POS-B. An unauthenticated copy of the parking ordinance was attached to the City's answer. Stanton denied the relevant allegations of the City's second counterclaim.
In support of its motion for summary judgment, the City asserted that it was an uncontroverted fact that Stanton had blocked the City's alley with his property. The City's statement of uncontroverted material facts then alleged in paragraph 8 "[t]hat [Stanton]’s actions in asserting control of the said alleyway constitute a violation of City Ordinance 2018-POS-B." The City did not include an authenticated copy of Ordinance 2018-POS-B in its summary judgment papers, and did not attempt to establish the content of the ordinance as a matter of undisputed fact.
In his opposition to the City's summary judgment motion, Stanton contended that paragraph 8 of the City's statement of uncontroverted material facts "is a legal conclusion and argument and no response is required." In its judgment granting the City's motion for summary judgment as to its counterclaims, the circuit court expressly stated that it was not relying on paragraph 8 of the City's statement of uncontroverted material facts.
A decision on summary judgment must be made "based on the pleadings, record submitted, and the law." Goerlitz v. City of Maryville , 333 S.W.3d 450, 452 (Mo. 2011) (citation omitted). "Facts come into a summary judgment record only via Rule 74.04(c)’s numbered-paragraphs-and-responses framework." Fleddermann v. Casino One Corp. , 579 S.W.3d 244, 248 (Mo. App. E.D. 2019) (citation and internal quotation marks omitted). "[W]hen reviewing a summary judgment, we may only review the undisputed material facts established by the process set forth in Rule 74.04(c)," id. (citation and internal quotation marks omitted"), and, in accordance with Missouri Supreme Court Rule 74.04(c)(6), our review on appeal "is limited to only ‘the motion, the response, the reply and the sur-reply." Fidelity Real Estate Co. v. Norman , 586 S.W.3d 873, 883 (Mo. App. W.D. 2019) (citation omitted).
The content of Ordinance 2018-POS-B was a factual proposition which the City was required to establish through competent evidence. Missouri caselaw clearly holds that, unlike state statutes, "[c]ourts may not take judicial notice of municipal ordinances; instead such ordinances must be admitted in evidence or stipulated by the parties." Gen'l Motors Corp. v. Fair Emp. Practices Div. of Council on Human Rels. , 574 S.W.2d 394, 400 (Mo. 1978) (collecting cases); accord Jamerson v. Boone , 554 S.W.3d 899, 904 (Mo. App. E.D. 2018) ; WCT & D, LLC v. City of Kansas City , 476 S.W.3d 336, 345 (Mo. App. W.D. 2015) ; State ex rel. Sir v. Gateway Taxi Mgmt. Co. , 400 S.W.3d 478, 488 (Mo. App. E.D. 2013). "[T]he contents of a municipal ordinance must be proven like every other fact." City of Kansas City v. Cosic , 540 S.W.3d 461, 463 (Mo. App. W.D. 2018) (citation and internal quotation marks omitted); see also City of Joplin v. Klein , 345 S.W.3d 351, 354 (Mo. App. S.D. 2011) (describing methods by which the content of municipal ordinances may be proven).
Ordinance No. 2018-POS-B was not properly before the circuit court in connection with the City's summary judgment motion, and the court could therefore not determine whether Stanton had violated the ordinance. An authenticated copy of the parking ordinance was not proffered by the City, and Stanton never admitted or stipulated to the ordinance's contents. Although the City's summary judgment motion asserted as an undisputed fact that Stanton's actions had violated the ordinance, the circuit court itself recognized that this assertion stated a legal conclusion, and the court explicitly stated that it did not rely on that assertion in granting summary judgment. The fact that the City attached an unauthenticated copy of the parking ordinance to its answer cannot fill the evidentiary gap in the record, since Stanton denied the City's allegation that the attachment constituted a true and correct copy of the ordinance.
In order to find that Stanton had violated Ordinance No. 2018-POS-B, it was necessary to compare his conduct to the ordinance's terms. This was obviously not possible if the ordinance's contents were not established in some competent fashion.
The circuit court erred in granting summary judgment to the City on its second counterclaim. Point VI is granted, and the summary judgment on the City's second counterclaim is reversed.
Conclusion
The circuit court's grant of summary judgment to the City on its second counterclaim is reversed, and the case is remanded for further proceedings on that counterclaim. The circuit court's judgment is affirmed in all other respects.
All concur.