IN THE CIRCUIT COURT OF ST. LOUIS COUNTY STATE OF MISSOURI CAROLYN MILLS, individually and as Next Friend of Caitlin Mills and Abigail Mills, Minors
v. CITY OF HAZELWOOD,
) ) ) ) Plaintiffs, ) ) ) ) ) ) ) Defendant. )
Case No. 11SL-CC01399
Division No. 2
PLAINTIFFS’ SUGGESTIONS IN SUPPORT OF MOTION TO AMEND JUDGMENT I.
Introduction. The Mills family brought this action in the St. Louis County Circuit Court because
Hazelwood’s officials have made clear their position that the City’s Home Occupation ordinance, Hazelwood Code section 405.375, prohibits Caitlin and Abigail from selling Girl Scout cookies to passersby from a temporary stand set up in their own driveway. The Plaintiffs do not want a variance or exemption from this general prohibition. To the contrary, they filed this lawsuit not only for their own benefit, but for the benefit of all of Hazelwood’s residents so that this Court could issue a declaratory judgment on two straightforward questions of law: (1) Does the ordinance asserted by the City actually prohibit children in Hazelwood from operating temporary concession stands in their own driveways; and (2) If so, do the U.S. and Missouri Constitutions allow the City to impose such a prohibition? Through its Order and Judgment of August 12, 2011, this Court announced that it would refuse to address these questions. In this Motion to Amend, the Plaintiffs are asking the Court to reconsider its dismissal of their case because they believe the Court made three specific errors:
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(1) The Court incorrectly assumed that the family can obtain a hearing before the Board of Adjustment; (2) The Court incorrectly concluded that the meaning of the ordinance in question is a “discretionary determination” to be made by either city officials or the Board of Adjustment; and (3) The Court incorrectly concluded that this case involves factual questions that need to be clarified using the special expertise of the Board of Adjustment. In light of these errors, the Plaintiffs respectfully ask this Court to amend its Order and Judgment, overruling the Defendant’s Motion to Dismiss and permitting the Plaintiffs’ case to proceed. II.
The Mills Family Has Nothing To Appeal To Hazelwood The Board Of Adjustment. In dismissing the Mills family’s Petition, the Court suggested that they should have gone
to the Hazelwood Board of Adjustment to appeal the City’s interpretation of its Code and the “denial of their application for a temporary business license.” Even if the Plaintiffs wished to do so, they could not because the City’s own Code demonstrates that the Board of Adjustment has no authority to address either of these issues. As this Court noted in its Order and Judgment, Hazelwood has only empowered its Board of Adjustment “[t]o hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by the Director of Public Works in the enforcement of this Chapter 405 or of any ordinance adopted thereto.” Hazelwood Code 405.755.1. This lawsuit does not challenge any such “order, requirement, decision or determination made by the Director of Public Works” because the Mills family has no reason to believe the Director made such an “order, requirement, decision or determination.” Without being able to point to such an “order, requirement, decision or determination made by the Director of Public Works,” section 405.765 of the Hazelwood Code does not provide the Mills family with any way to pursue the
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administrative procedure established therein. Furthermore, the Board of Adjustment has no authority to review the denial of the Temporary Business License Application Plaintiffs submitted as Exhibit B. First, the application itself is moot, as it specified that the temporary license sought was to expire on March 17, 2011. Second, Temporary Business License Applications are reviewed by the Hazelwood City Planner and the Director of Finance—officials whose decisions are not reviewable by the Board of Adjustment under Hazelwood’s City Code. Thus, the Board of Adjustment could not review the denial of this Temporary Business License Application even if it was not moot and if the Plaintiffs wanted to appeal it. Because the Mills family has nothing to appeal to the Board of Adjustment and the Board of Adjustment has no authority to address the issues raised in the Petition, this Court should amend its Order and Judgment, overruling the Defendant’s Motion to Dismiss and allowing this case to proceed. III.
The Meaning Of An Ordinance Is A Question Of Law, Not A “Discretionary Determination” To Be Made By City Officials. The Court’s Order and Judgment suggests that the meaning of Hazelwood Code section
405.395 is subject to the “discretionary determination” of city officials or the Board of Adjustment. This cannot be correct. It is well established in Missouri law that the interpretation of a city ordinance is a question of law to be determined by a court. State ex rel. Sunshine Enterprises of Missouri, Inc. v. Board of Adjustment of City of St. Ann, 64 S.W.3d 310, 312 (Mo. banc 2002); Ludwigs v. City of Kansas City, 487 S.W.2d 519, 522 (Mo. 1972); Gaithright v. Pendegraft, 433 S.W.2d 299, 313 (Mo. 1968); Hogan v. Fleming, 297 S.W. 404, 412 (Mo. 1927); HHC Medical Group, P.C. v. City of Creve Coeur Bd. of Adjustment, 99 S.W.3d 68, 70 (Mo.App. E.D. 2003). The meaning of an ordinance is fixed by its wording and is not subject to
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the “discretionary determinations” of those who enforce it. Where those responsible for an ordinance’s enforcement have threatened to apply the ordinance against a citizen and the facts giving rise to the threat are not disputed, the Missouri Supreme Court has held that the citizen may seek declaratory judgment in the courts without first exhausting any administrative remedies that might otherwise be appropriate. See Premium Standard Farms, Inc. v. Lincoln Township of Putnam County, 946 S.W.2d 234, 238 (Mo. banc 1997); Council House Redevelopment Corp. v. Hill, 920 S.W.2d 890, 893 (Mo. banc 1996); Nicolai v. City of St. Louis, 762 S.W.2d 423 (Mo. banc 1988). Accordingly, the Court should amend its Order and Judgment, overruling the Defendant’s Motion to Dismiss and allowing this case to proceed. IV.
This Case Presents No Facts Requiring Any Special Expertise Possessed By The Board Of Adjustment. The relevant facts of this case are not in dispute: For a couple of weeks in each of the
past six years the Plaintiffs have enjoyed setting up a temporary cookie stand in their driveway; the City has taken an unambiguous position that it is illegal for them to continue doing so and has threatened to issue a summons if the City’s warning goes unheeded; the family’s property is plainly in a residential zoning district and they are not asserting that they are exempt from section 405.395, nor are they requesting a variance or special permit. This Court’s Order and Judgment cited Shaffer v. City of Pacific, 807 S.W.2d 207, 209 (Mo.App. E.D. 1991), in support of its contention that a party aggrieved by a city’s interpretation of a zoning ordinance “must appeal to the board provided for in said ordinance before seeking relief in court.” In that case, two property owners had been using their land as mobile home courts “[s]ince long before the City of Pacific enacted zoning ordinances.” After the City of Pacific enacted certain restrictions on the location of mobile homes, one of its officials gave
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notice that certain of the new restrictions would apply to the property owners, despite the fact that the ordinance created a specific exemption for prior non-conforming uses. The property owners sued, arguing primarily that the facts (which were disputed) showed that their property was entitled to exemption from the general operation of the ordinance. The Court of Appeals correctly determined that in that case the Board of Adjustment was the proper body to establish the facts to which the law should be applied. The critical point that renders Shaffer (and the vast majority of the cases relied upon by the Defendant) useless in regard to the instant case is that Shaffer involved parties arguing that a specific piece of property ought to be exempt from the zoning ordinance’s general application. Where a party is claiming such an exemption, it is almost certain that the outcome will depend on facts associated with the property for which the exemption is claimed. But in the instant case, the Mills family is not suggesting that there is anything unique about their property that entitles it to exemption or takes it outside the operation of the Home Occupation ordinance – they are arguing that the ordinance does not properly prevent any family in Hazelwood from letting their kids set up a front-yard concession stand. Additionally, as this Court acknowledged in its Order and Judgment, when Missouri courts have discussed the “exhaustion of administrative remedies” requirement, they have made clear that the purpose of the requirement is to realize judicial efficiency by allowing the factual record to be developed more thoroughly by those possessing “special expertise.” See Premium Standard Farms, 946 S.W.2d at 237. In the instant case, neither the Defendant nor this Court have identified any specific facts in need of development, nor did they identify what “special expertise” the Board of Adjustment might possess regarding the simple questions of law the Mills family has presented. Furthermore, any legal conclusion reached by the Board of
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Adjustment is certain to be appealed back into the Circuit Court, where it will have to be reviewed de novo. See HHC Medical Group, P.C., 99 S.W.3d at 71. Far from creating the efficiency undergirding the exhaustion doctrine, the Court’s dismissal will instead require all concerned to waste significant time and expense slogging through the administrative process1 before ultimately returning to this Court with precisely the same uncomplicated legal issues. Accordingly, this Court should follow the Missouri Supreme Court’s guidance that where a case “poses no factual questions or issues requiring the special expertise within the scope of the administrative agency’s responsibility, but instead proffers only questions of law clearly within the realm of the courts, the doctrine of exhaustion does not apply[.]” Premium Standard Farms, Inc., 946 S.W.2d at 238. The Court should amend its Order and Judgment, overruling the Defendant’s Motion to Dismiss and allowing this case to proceed. V.
Conclusion. Neither the City nor this Court’s Order and Judgment identified any “order, requirement,
decision or determination made by the Director of Public Works” that the Plaintiffs can appeal to the Hazelwood Board of Adjustment. Neither the City nor this Court’s Order and Judgment identified any relevant facts in need of clarification or any special expertise that the Hazelwood Board might employ to provide such clarification. The interpretation of Hazelwood Code section 405.375 is a question of law, not a “discretionary determination” to be made by city officials or the Board of Adjustment, and any legal conclusion the Board of Adjustment makes regarding this issue must be reviewed de novo when the issue returns to this Court. The Missouri Supreme Court has made clear that in cases such as this, there is no requirement that the 1
Assuming the Plaintiffs are even permitted to access this process (see ante), they will be charged a fee for having their matter heard by the Board of Adjustment, then will have to pay another filing fee to bring these legal issues back before this Court, to say nothing of the hours that their attorney and Hazelwood’s attorneys will expend in pursuing these matters.
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Plaintiffs exhaust administrative remedies before bringing their matter before a Circuit Court. Consequently, this Court should amend its Order and Judgment of August 12, 2011, overruling the City’s Motion to Dismiss and allowing this case to proceed. Respectfully submitted, _______________________________________ David E. Roland Mo. Bar #60548 FREEDOM CENTER OF MISSOURI 5938 De Giverville Ave. St. Louis, MO 63112 Phone: (314) 604-6621 Fax: (314) 720-0989 Email: dave@mofreedom.org Attorney for Plaintiffs CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing was served by mail on September 12, 2011, addressed to: John M. Hessel Lewis, Rice & Fingerish, L.C. 600 Washington Avenue, Suite 2500 St. Louis, Missouri 63101 and Eric O’Keefe Curtis, Heinz, Garrett & O’Keefe, P.C. 130 South Bemiston, Suite 200 St. Louis, Missouri 63105 _______________________________________
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