ANNUAL UPDATE ON MISSOURI LAND USE CASES

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ANNUAL UPDATE ONMISSOURI LAND USE

CASES

PRESENTED TO THE

MISSOURI MUNICIPAL ATTORNEYS' ASSOCIATION

ANNUAL MEETING

JULY 15-17, 2011

STEPHEN P. CHINN

ANDREA G. BOUGH

PUBLIC LAW GROUP

STINSON MORRISON HECKER LLP

2www.stinson.com © 2010, Stinson Morrison Hecker LLP

Stop the Beach Renourishment, Inc.

v.

Fl. Dep't of Envtl. Prot.,

130 S.Ct. 2592 (2010).


Property Rights

• Mean high-water line – the boundary line between littoral property (private beach front) and state owned land (average reach of high tide over 19 years).

• Accretions – gradually and imperceptibly occurring additions of alluvion (sand, sediment or other deposits) to water front land.

• Relictions – lands once covered by water that become dry when the water recedes.

• Alluvion – sudden or perceptible loss of or addition to land by water action or sudden change in its bed.

• Littoral Property – land that abuts on a body of water.

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Rights of Littoral Owners

• Access to the water• Use of water for certain purposes• Unobstructed view of the water, and• To receive accretions and relictions

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Littoral Owners and the State

Littoral owner automatically takes title to dry land added by accretion

Owner of sea bed takes title to formerly submerged land that becomes dry by avulsion

Whether avulsive event exposes land or submerges land, the mean high water mark before the event, remains the boundary between littoral property and the sea bed

The littoral owner has no right to subsequent accretions, when a new strip of land is added to the shore by avulsion

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8th Circuit TCA Cases

• USCOC of Greater Missouri, LLC v. County of Franklin, Missouri (8th Cir. No. 09-2525, March 2, 2011)

• St. Charles Tower, Inc. v. Kurtz (8th Cir. No. 10-2412, June 28, 2011)

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USCOC of Greater Mo.

“Without power to mandate any and all permits contemplated by the federal claim, we would essentially perpetuate ‘an end run around the requirements of the TCA and thereby allow local regulatory agencies to subvert a federal policy by elevating zoning authority over congressional policy as enacted into law via the TCA.” (quoting Ogden Fire Co. No. 1 v. Upper Chichester Township, 504 F.3d 320 (3d Cir. 2007)

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St. Charles Tower

“While USCOC of Greater Missouri perhaps stands for the proposition that federal courts have authority under the TCA to mandate the issuance of a building permit as an available form of relief for improper denial of a [CUP], the court in USCOC of Greater Missouri was not faced with – and did not purport to decide – the distinct question whether this form of relief is necessary to correct a TCA violation involving the improper denial of a conditional use permit. . . . Compelling the issuance of other permits, such as a building permit, simply is not a necessary remedy for this violation.”

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Other TCA Cases

• USCOC of Greater Mo. v. City of Ferguson, Mo., 583 F.3d 1035 (8th Cir. 2009).USCOC alleged that the City had violated the

"in writing" requirement because it had failed to issue its decision within 30 days.

A local government's final action occurs when there is a written decision, thus the 30 day limitation for filing an action does not begin until then.

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• Sprint Spectrum, L.P. v. Platte County, Mo., 578 F.3d 727 (8th Cir. 2009).

Aesthetic concerns can be valid basis on which to deny's the permit.

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• Pub. Water Supply Dist. No. 3 of Laclede County, Mo. v. City of Lebanon, 605 F. 3d 511 (8th Cir. 2010).The verbs "curtail" and "limit" suggest that a city

curtails and limits service within the meaning of Section 1926 when it initially provides service to a customer, not when it continues to do so.

The phrase “during the term of such loan" limits the scope of a rural district's exclusive provider status to the period during which the loan is outstanding.

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• Phelps-Roper v. City of Manchester, Mo., 738 F. Supp. 2d 947 (E.D. Mo. 2010).

The 8th Circuit has "unequivocally refused to recognize the government's significant interest in protecting unwilling listeners outside the residential context."

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• Neighborhood Enters., Inc. v. City of St. Louis, Mo., 718 F. Supp. 2d 1025 (E.D. Mo. 2010).

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State Cases

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• St. Louis County v. Berck, 322 S.W.3d 610 (Mo. Ct. App. E.D. 2010).

"Although the TIF Act and condemnation statutes share a common application in certain factual situations, each statute has an application, function and purpose separate from the other."

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• Kindred v. City of Smithville, 292 S.W.3d 420 (Mo. Ct. App. W.D. 2009).

Section 432.070 was not violated because the concerns the legislature sought to address were not present in this case.

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• Land Clearance for Redevelopment Auth. of City of St. Louis v. Inserra, 284 S.W.3d 641 (Mo. Ct. App. E.D. 2009).

Eminent domain legislation that passed in 2006 did not invalidate a prior legislative finding of blight nor did it change the court's standard of review.

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ANNUAL UPDATE ON MISSOURI LAND USE CASES