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FAQ: Notice And Publication
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 (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));
• 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, required to post or publish public notices. Examples include
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
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use or violation of due process that the City acted quickly to abate it before holding a public hearing). These circumstances tend to be very fact-specific and are not frequently upheld by courts. Municipalities should exercise this sparingly and cautiously so as not to violate any due process requirements or Sunshine Law provisions (for example, if an emergency requires a city council meeting to take place with less than a twenty-four (24) hour notice, the “nature of the good cause justifying that departure from the normal requirements shall be stated in the minutes”). (§ 610.020.4 RSMo) Additionally, in some contexts, there may be no such “emergency.” As mentioned above, § 89.050 RSMo requires at least a fifteen (15)-day notice of a public hearing to amend the zoning code; anything less is fatal.
When does notice have to be published in a newspaper? Certain statutes require publication of notice in a newspaper. For example, a city’s planning and zoning commission must provide notice of a public hearing to adopt a city plan at least 15 days before such hearing “in at least one newspaper having general circulation within the municipality.” § 89.360 RSMo; see also § 89.050 RSMo (required for zoning code amendments). Others provide newspaper publication as an alternative option (See, for example, § 67.110.2 RSMo that requires the governing body of all political subdivisions of the state to hold at least one public hearing on the proposed rate of ad valorem taxes and requires notice of such hearing either be posted in three public places within the political subdivision or “published in at least one newspaper qualified under the state of Missouri of general circulation in the county within which all or the largest portion of the political subdivision is situated.”). In other circumstances, publication in a newspaper may be required if a municipality is unable to ascertain the location or identity of the property owner. For example, the enabling statutes authorizing local governments to regulate, repair and demolish dangerous buildings require that the local government enact a dangerous buildings ordinance that includes, in part, the following: “[The ordinance must] (3) Provide for service of adequate notice of the declaration of nuisance, which notice shall specify that the property is to be vacated, if such be the case, reconditioned or removed, listing a reasonable time for commencement; and provide that such notice be served either by personal service or by certified mail, return receipt requested, but if service cannot be had by either of these modes of service, then service may be had by publication…” (§ 67.410.3 RSMo)
What qualifies as a newspaper?
Section 493.050 provides that “[a]ll public advertisements and orders of publication required by law to be made and all legal publications affecting the title to real estate shall be published in some daily, triweekly, semiweekly or weekly newspaper of general circulation in the county where located.” To qualify, the newspaper must also: • be admitted to the post office as periodicals class matter in the city of publication; • be published regularly and consecutively for a period of at least three years; and • have voluntary, bona fide subscribers (customers “who have agreed to pay a stated price for a subscription for a definite period of time”). (§ 493.050 RSMo)
What about online or digital publications?
Online publication, such as publishing in an online-only newspaper or on the municipality’s website, is not currently authorized as a substitute for legal publication or notice, although a political subdivision is certainly able to supplement and provide additional notice in this way. There have been several bills introduced in recent Missouri Legislature sessions that would allow for online publication (See, for example, HB 1966 (2020), SB 370 (2020); SB 268 (2019), SB 515 (2019), SB 580 (2018), HB 335 (2017), and SB 47 (2017)). However, thus far, none of these measures have made it far past the committee level.
What does it mean for a newspaper to be “of general circulation”?
The general statute applying to legal publications and notices requires the newspaper to be “of general circulation in the county where located” (See § 493.050 RSMo), but some statutes have more specific requirements (for example, notice of a public hearing about a planning commission’s adoption of a comprehensive plan for a city must be published “in at least one newspaper having general circulation within the municipality” (§ 89.360 RSMo)(emphasis added), and notices of public hearings relating to a tax increment finance district must be published “in a newspaper of general circulation in the proposed redevelopment area or redevelopment project area, as applicable.” (§ 99.830.2 RSMo) (emphasis added)).
Courts have not yet explicitly defined “general circulation,” city may request the paper to provide a letter stating that though there is some interesting discussion, drawing from they do comply. In first-class counties, cities may also petition cases in other jurisdictions, in State ex rel. Reorganized School the circuit court to issue an order approving a newspaper for Dist. No. R-6 of Daviess County v. Holman, 275 S.W.2d 280, 282 notice publication. (§ 493.027 RSMo) (Mo. banc 1955): "We have found no decision in this State defining a newspaper of ‘general circulation’. One of the leading What do we do if there was an error or cases from other jurisdictions is Burak v. Ditson, 209 discrepancy in the notice, such as a mix-up in Iowa 926, 229 N.W. 227, 228, 68 A.L.R. 538, 541, which the date or day of a hearing? has this to say on that subject: “A study of the decisions bearing on the question before us suggests the following While there is no statute or clear rule on what errors courts criteria: First, that a newspaper of general circulation is would not allow, courts seem to prefer clarity and accuracy. not determined by the number of its subscribers, but by For example, Missouri’s Supreme Court once held invalid the diversity of its subscribers. Second, that, even though a newspaper notice intended for William N. Woodruff, but a newspaper is of particular interest to a particular class printed toward “W. N. Woodwruff,” because “W.” was not a of persons, yet, if it contains news of a general character “universally known” abbreviation like “Wm.” See Woodruff v. and interest to the community, although the news may Bunker Culler Lumber Co., 146 S.W. 1162, 1164 (Mo. 1912). In be limited in amount, it qualifies as a newspaper of another case, the same court held that a notice published in a ‘general circulation.’” [Citing several cases from other German language newspaper, but printed in English, did not states.] This case has been generally followed. [Citing suffice. See Graham v. King, 50 Mo. 22 (Mo. 1872). In a different several cases from other states]. In the case of State ex context, Missouri’s Supreme Court has held that where a trust inf. Latham ex rel. Dawes v. Allen, Mo.Sup., 237 S.W.2d deed required the trustee to give a 20-day notice before the 489, 490, it was conceded that two newspapers having, estate sale, a clerical error in the publication (printing the respectively, fifty-one and forty-nine subscribers in one correct date, but “Sunday” instead of “Monday”) rendered of the counties affected by a special school election were notice invalid until the mistake was corrected that only newspapers of general circulation in that area …" occurred 19 days before the sale. See Wolff v. Ward, 716 S.W. Beyond Holman, courts have specified what “general 161 (Mo. 1891). circulation” is not, namely that it does not require the Errors or deficiencies in the description of a public hearing newspaper necessarily be published in the county (or can also prove problematic. In one case, a city gave notice municipality, etc.), but rather that it have a “sufficient nexus” of a city council meeting, describing their intent to “clarify to the county. Press-Journal Pub. Co. v. St. Peters Courier-Post, and reaffirm” existing zoning laws, and to consider zoning 607 S.W.2d 453, 457-458 (Mo. 1980). amendments applicable to a described portion of the city. At the meeting, they instead passed a zoning ordinance applicable to the entire city that the court invalidated, except What if a city is not sure whether a particular as it applied to those areas specifically named in the notice. newspaper qualifies? The court wrote that “[i]t is, at least, not too much to ask that any ambiguity in the notice to the public of so important a If unsure whether a newspaper meets the requirements, a change, which is the only notice that the public has, should be resolved against the notice.” State ex rel. Freeze v. City of Cape Girardeau, 523 S.W.2d 123, 126 (Mo.App.1975) WEBSITE DESIGN (quoting Palmer v. Mann, 201 N.Y.S. 525, 528 (N.Y. App. Div. 1923)). In other words: CODIFICATION When in doubt, re-publish. SERVICES Kendall M. Reeves is an associate with Cunningham, Vogel & Rost, P.C. in St. Louis, where she represents the firm’s municipal SELF-PUBLISHING clients in land use law and general municipal SOFTWARE issues. Mike Vangel is a 2L at Washington MEETING & AGENDA University in St. Louis, and was a law clerk with MANAGEMENT Cunningham, Vogel & Rost in summer 2020.
