FAQ: Glad You Noticed! Notice And Publication by Kendall M. Reeves and Mike Vangel, Cunningham, Vogel and Rost
This summary, and the examples provided herein, is intended for discussion purposes and to provide readers with useful guidance on the topics and issues covered. The contents of this article should not be considered exhaustive. It is also not intended to be, and should not be construed as, legal advice for a specific factual situation. Although we have made every effort to ensure the accuracy of the contents of this article, neither the authors nor Cunningham, Vogel & Rost, P.C. assumes any responsibility for any individual’s reliance on the information presented. Sunshine Law, planning and zoning statutes, federal and state constitutional due process considerations, and other laws require political subdivisions to post public notices before taking certain actions. The timing, format, audience, method and content of the notice will vary depending on the circumstances.
Why is a public notice so important? Public notices, and the hearings that frequently follow, provide an important function in governmental transparency and public participation. They also help protect the rights and interests of property owners or others who may be specifically impacted by a governmental decision, such as with a proposed zoning change to a neighboring property. The Fourteenth Amendment to the United States Constitution and Article I, § 10 of the Missouri Constitution prohibits depriving any person of property without due process of law. “Procedural due process imposes constraints on governmental decisions that deprive individuals of ‘liberty’ or ‘property’ interests.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Missouri law has held that “in order for the requirements of due process to be met, parties whose rights are to be affected must give notice and the opportunity to be heard.” City of Kansas City v. Jordan, 174 S.W.3d 25, 42 (Mo. App. W.D. 2005) (citing Fuentes v. Shevin, 407 U.S. 67, 80 (1972)). “It is the purpose of legal notices and advertisements to give notice of legal and public events and proceedings.” Press-Journal Pub. Co. v. St. Peters Courier-Post, 607 S.W.2d 453, 458 (Mo. App. E.D. 1980).
When is a municipality required to give public notice? There are many different contexts in which a municipality is required to post or publish public notices. Examples include (but are not limited to): • Before holding a meeting (See § 610.020 RSMo); • Before adopting a zoning code (See § 89.070 RSMo) (Note that in contrast to amending an established zoning code, initial adoption of a zoning code requires a two-hearing process, involving separate public hearings before the municipality’s planning and zoning commission and its legislative body. See Moore v. City of Parkville, 156 S.W.3d 384, 390 (Mo. App. W.D. 2005); Murrell v. Wolff, 408 S.W. 842 (Mo. 1966)); 18
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• Before making any amendments to the zoning code (See § 89.050-060 RSMo); • Before annexation (See, § 71.015.1(3) RSMo); • Before abating any nuisance property or dangerous buildings (See, for example, § 67.410 RSMo. (dangerous buildings); §71.285 RSMo. (accumulation of weeds or trash)); • Before charging a special assessment (See, for example, §§ 67.461 – 67.463 (special assessments by neighborhood improvement districts)); • Before creating certain economic development districts or special taxing districts (See, for example, § 67.1431 RSMo (community improvement districts), or § 99.830 RSMo (tax increment financing redevelopment projects)); (See also §§ 67.800-860 providing additional notice requirements for nonresidents of a political subdivision who request notice relating to public works or improvements); and • Before setting the ad valorem property tax levy amounts (See § 67.110 RSMo). It is important to check the relevant statute for details relating to the notice required (e.g., time and content) to be posted or published. For example, Sunshine Law provides that “[a]ll public governmental bodies shall give notice of the time, date and place of each meeting, and its tentative agenda, in a manner reasonably calculated to advise the public of the matters to be considered” and that such notice “be given at least twenty-four (24) hours, exclusive of weekends and holidays when the facility is closed, prior to the commencement of any meeting of a governmental body.” (§ 610.020.1;2 RSMo) Amendments to the zoning code, however, will require additional, more strenuous notice requirements: “[a]t least fifteen (15) days notice of the time and place of such hearing shall be published in an official paper or a paper of general circulation in such municipality.” (§ 89.050 RSMo)
What if there is an emergency and the city needs to act too quickly to allow time for notice or publication? In rare circumstances, a political subdivision may need to act quickly to address an emergency issue. See, for example, City of Kansas City v. Jordan, 174 S.W.3d 25 (Mo. App. W.D. 2005) (holding that when it was determined that a building “created an emergency situation or posed an imminent threat of harm to the public,” it was not a taking of private property for public
