October Newsletter (Issue 10-2017)

Eastern District Issues Landmark Decision Upholding The Power Of Home Rule Cities To Tax Without A Grant From General Assembly

94738-004-A1250B61Introduction: The opinion in Neuner v City of St. Louis is one for the ages.  It is the most significant opinion, with respect to constitutional home rule powers, since the adoption of the 1971 amendment to the Missouri Constitution granting constitutional home rule cities all powers that the general assembly could grant that are not denied by its charter or by statute.  This opinion is extremely well reasoned and written (brilliant) and should (hopefully) withstand the scrutiny of the Missouri Supreme Court.

Article 6, Section 19(a) grants to constitutional home rule cities all the powers that the general assembly has the power to confer unless limited by its charter or by statute.

The question: Are the power in Article 6, Section 19(a) limited by Article 10, Section 1 of the Missouri Constitution, which provides that the taxing power of political subdivisions may only be exercised “under power granted to them by the general assembly”?  The 2017 opinion by the Western District in Neuner v City of St. Louis answers this question by concluding that Article 6, Section 19(a) is not limited by Article 10, Section 1, thereby, answering one of the most perplexing questions for municipal attorneys.

There are three parts to the Court’s opinion.  First, there is a historical analysis, which conclusively shows that the drafters of the 1875 Missouri Constitution did not intend Article 10, Section 1 to limit the taxing power of the City of St. Louis as a city authorized to adopt its own charter, provided that the city charter included provisions for such taxation.  This view prevailed for 64 years until 1943 when the Missouri Supreme Court reversed its earlier opinions by holding that the charter provisions that authorized the City to tax without a grant to tax from the General Assembly to the City of St. Louis were limited by Article 10 Section 1.  The Missouri Supreme Court did not discuss any of the pre-1943 opinions other than to simply overrule a 1933 opinion.  The 1943 opinion and subsequent opinions prevailed until 2017, at which time the Eastern District concluded in Neuner v City of St. Louis that the home rule city constitutional amendment in 1971 allowed constitutional home rule cities to tax without a grant from the general assembly thereby resolving this conflict.

Facts and Procedural History: The City of St. Louis (City) adopted an ordinance that imposed a payroll tax on employers and ordinances authorizing the City to sign “cooperation agreements” to reimburse two employers their costs in redeveloping their City offices and relocating employees from outside of the City to those offices. Appellants filed a petition for declaratory judgment against the City in Neuner v City of St. Louis, challenging the constitutionality of the payroll tax and the ordinances authorizing reimbursement of the development cost.  The trial court found the ordinances were constitutional and Appellants appealed to the Eastern District.

Appellants contended that the trial court erred in finding the City’s payroll tax constitutional because the City was not authorized by the general assembly to impose the tax and that the ordinances authorizing the “cooperation agreements” violated the Missouri Constitution because: (1) the ordinances served a private and not a public purpose; 2) the ordinances were “special laws”; (3) the taxes imposed by the ordinances were not uniform among all taxpayers in the class of “for-profit businesses” and; (4) the ordinances violated the prohibition on refunding tax receipts to taxpayers.              

Constitutionality of the Ordinance: Appellants claimed that the broad grant of authority given to charter cities, including the City of St. Louis, pursuant to Article 6, Section 19(a), in 1971 was limited by Article 10, Section 1, which provides that the taxing power may only be exercised by political subdivisions “under power granted to them by the general assembly” and that no such power had been granted to the City.

Period From 1875 to 1943: The Western District started its analysis by examining the Missouri Constitution of 1875, when the City of St. Louis was authorized to adopt its own charter and was granted separate and unique status as a city/county.  The 1875 Constitution included in Article 10, Section 1 language that remains unchanged to date:

The taxing power may be exercised by the general assembly for state purposes, and by counties and other political subdivisions under power granted to them by the general assembly for county, municipal and other corporate purposes.

Shortly thereafter, in 1879, the Missouri Supreme Court concluded in the 1879 Steinberg case, involving the City of St. Louis, that the power in the St. Louis charter, which allowed St. Louis to “license, tax, and regulate lawyers” was sufficient to allow it to adopt an ordinance taxing lawyers without authorization from the general assembly; therefore, Article 10, Section 1 did not limit the power of the City to adopt this tax because it was included in its charter.

“the framers of the constitution had in their minds the fact that it was wholly impossible to conduct a city government in a city like St. Louis without the power of taxation being vested in those charged with conducting such government”; and that “[t]he right to adopt a charter necessarily implied the right to put in it such provisions as would enable the city to maintain its government.”

Thereafter, the Missouri Supreme Court in several later cases (as late as 1933) as well as the United States Supreme Court held, that the 1875 Constitution allowed the City of St. Louis to impose taxes not authorized by the general assembly of the State of Missouri.  This view held sway for 64 years until 1943 when something very strange happened.

1943 to 1971: In 1943, the Missouri Supreme Court in Kansas City v. Frogge, backed away from its earlier interpretations by concluding that its statement in the earlier 1933 case of State ex rel. People’s Motorbus Co. of St. Louis v. Blaine, involving the City of St. Louis, was incorrect and that the City of St. Louis, could not impose taxes based on its charter without a grant from the general assembly.  The 1943 opinion in Kansas City v. Frogge is extremely confusing because the Missouri Supreme Court did not discuss whether there were differences between the charter of Kansas City and St. Louis.  In addition, the Court allowed the result of the 1933 Blaine case to stand.  The 1943 opinion in Kansas City v. Frogge, also failed to even mention the earlier 1879 opinion by the Missouri Supreme Court in Stienberg, as well as other subsequent opinions, which held that the powers granted to St. Louis in the 1875 Missouri Constitution did not conflict with Article 10, Section 1.

The 1943 opinion was later solidified in Carter Carbueretor Corp, and Lawyers’ Ass’n of St. Louis v. City of St. Louis, making it settled law that the City of St. Louis could not impose an earnings tax unless the general assembly granted to the City the power to impose an earnings tax.  In 1948, a year after the Carter Carbueretor Corp case, the general assembly responded by adopting a statute that granted the City of St. Louis the power to adopt an earnings tax.  This remained the law until September of 2017 when the Eastern District in Neuner v City of St. Louis, held that Article 10, Section 1 did not limit the power of home rule cities under Article 19(a), Section 6, to adopt taxes without a grant from the general assembly.

Neuner v City of St. Louis Article VI, Section 19(a) and Restoration of the City of St. Louis’ Power to Tax: In 1971, the voters of the state of Missouri adopted Article 6, Section 19(a) (Amendment) granting constitutional home rule status for cities (includes the City of St. Louis):

“…all powers which the general assembly of the state of Missouri has authority to confer upon any city, provided such powers are consistent with the constitution of this state and are not limited or denied either by the charter so adopted or by statute.  Such a city shall, in addition to its home rule powers, have all powers conferred by law.”

The Eastern District started its analysis by examining the comments, of the principal crafter of the 1971 Amendment, Professor Westbrook.

[M]unicipal powers now come directly to the city from the constitution unless the charter rejects the power or limits them in some way. In the past, powers came to the city through both the constitution and the charter. In order to cause the power to flow from the constitution, it was necessary for the city to claim the power by mentioning it in the charter. Thus in the past the charter could be thought of as a receptacle designed to catch and hold powers; after amendment the charter is best thought of as a shield designed to hold back powers that otherwise would automatically vest in the city[.]

In 2017, in Neuner v City of St. Louis, the Eastern District was faced with the question of whether or not the powers granted to the City St. Louis under Article 6, Section 19(a) conflicted with Article 10, Section 1.  Before reaching this question the Eastern District noted that any conflict between Article 6, Section 19(a) and Article 10, Section 1 was an open question because the Missouri Supreme Court had declined on several occasion to address the interplay between Article 6, Section 19(a) and Article 10, Section 1.

Appellants conceded that the general assembly could grant home rule cities the power to adopt a payroll tax.  This allowed the Eastern District to resolve the conflict question based upon section 19(a) language, which granted home rule cities “all the powers that the general assembly had power to confer;” therefore, it followed that there could not be a conflict between Article 6, Section 19(a) and Article 10, Section 1. In addition, the Eastern District determined the power to levy a payroll tax was not inconsistent with the constitution of the state nor was it limited or denied by either its charter or statute.  The Eastern District further noted that since the general assembly drafted and submitted the Amendment to the voters, the power would also directly flow from the general assembly.

The Ordinances Served a Public Purpose; Were Not a Special Law; Were Uniform; and Did Not Violate the Prohibition Against Refunding Taxes

Public Purpose: The City was taking action to rehabilitate property pursuant to Article 6, section 21 of the Missouri Constitution, which provides that the City may rehabilitate “substandard” property.  This project served a public purpose because it prevented and eliminated incipient conditions of blight.  Allowing such properties to continue in their existing state affects the tax base of the city by decreasing the value of property.  In addition, a public purpose is served because the addition of jobs is a form of economic development.  The decision by the City that this served a public purpose is primarily for the legislature and will not be overturned by the courts unless it is arbitrary and unreasonable.  The action of the City in rehabilitating the property served a public purpose and was reasonable.

Special Law: The Missouri Constitution, Article 3, Section 40 (30), prohibits the adoption of special laws by a city.  In this case, the law was not special because a general law could not be made applicable, which is an exception the special law prohibition.  In addition, the agreements constituted an obligation of the City to assist a particular person for redeveloping the property; therefore, the ordinances were not a proper subject for a general law.  A general law relates to persons or things as a class, whereas a special law relates to particular persons of a class.  The ordinances were not facially special because the city met its burden of providing a substantial justification for the special treatment making the ordinances constitutional.

Uniformity: Article X, Section 3, states that taxes “shall be uniform upon the same class or subclass of subjects within the territorial limits of the authority levying the tax.” “Uniform” means the measure, gauge, or rate of the tax.  Appellants argued that the trial court erred because the ordinances were not uniform because all taxpayers in the class of “for–profit businesses” were not treated the same.  It was undisputed that the same measure, gauge, or rate of tax (one percent earnings tax and one-half of one percent payroll tax) applied to all for profits businesses (Wellpoint and Polsinelli); therefore, the taxes were uniform.

Refund: Article III, Section 40(7) of the Missouri Constitution provides that “[t]he general assembly shall not pass any local or special law: . . . refunding money legally paid into the treasury.”  Appellants argued that the ordinances violated this provision. Wellpoint and Polsinelli are not being refunded their taxes, they are being reimbursed their project costs; therefore, the prohibition against refunding tax receipts does not apply.  There is no mandate that the City refund the money unless the payments under the agreement are made.  Neuner v. City of St. Louis, (ED105125, 9/19/17)

Comment Howard: It may be in the interest of constitutional home rule cities to file an Amicus brief supporting the City of St. Louis.  Since all taxes have to be voted by the electorate of the political subdivision it seems to me there is sufficient protection in the Missouri Constitution to avert any concern the general assembly may have in October.

Policy Relating To Multi-Use Area With Respect To Free Speech Is Upheld By Eighth Circuit

Facts and Procedures: Ball, a citizen and resident of the City of Lincoln, Nebraska (City), passed out leaflets containing Christian messages to members of the public in the City’s West Haymarket district.  The West Haymarket district was a redevelopment area that opened in 2014, which included the Pinnacle Bank Arena (Arena), a large, modern sports and entertainment venue; several parking garages to the west and south of the Arena; a festival space/surface parking lot to the north of the Arena; a pedestrian bridge connecting the festival space and parking lots to the Arena; and new roads, streets, and sidewalks providing access to all these facilities.  Among its other uses, the Arena was to function as the home court for the University’s basketball teams.

Ball handed out leaflets near the Arena on at least four occasions.  On March 15, 2014, when the boys’ state high school basketball tournament was being held at the Arena,  Ball handed out leaflets to tournament attendees while standing in the Plaza Area, at times standing directly in front of the doors to the Arena.   SMG staff asked Ball to move from the Plaza Area to the adjacent public sidewalk.  Ball left but later returned and began leafletting again in the Plaza Area.  When Ball refused to move from the Plaza Area, SMG staff called the Lincoln Police Department.  The officers asked Ball to move to the public sidewalk outside the Plaza Area.  Ball refused to move, asserting that he had a right to pass out leaflets in the Plaza Area.  Ball was arrested and cited for trespassing in violation of the unwritten Arena use policy and for refusing to comply with the officers’ directives to move to another location.

The City and SMG developed a Policy in October of 2014, with respect to public and nonpublic areas in the West Hayward area (Policy).  In 2015, Ball returned to the Arena to hand out leaflets to people attending the girls’ state high school basketball tournament and again stood in the Plaza Area roughly 15 to 25 feet from the Arena doors.  Officers again cited Ball for trespassing but did not arrest him.  Ball returned to the Plaza Area on March 7, 2015, engaged in the same conduct, and was again cited for trespassing in violation of the Policy but was not arrested.  Ball was Prosecuted and found guilty of trespassing and was fined $50 for each violation.  The Lincoln Police Department has not cited any other individual for trespassing or for other criminal violations related to the Policy.

Thereafter, Ball filed a lawsuit alleging that the City and SMG had violated his First Amendment free-speech rights by issuing the citations for trespassing on the Plaza Area in violation of the Policy.  Ball sought permanent injunctive relief and monetary damages.  The district court granted summary judgment in favor of the City and SMG, concluding that the Plaza Area was a nonpublic forum for purposes of the First Amendment and that the Policy was a reasonable restriction on speech, conclusions that Ball challenged on appeal to the Eighth Circuit.

The Policy: A written Policy was developed in October of 2013 to provide Arena patrons, sometimes as many as 15,000 at a single event, safe and efficient access to the Arena and related facilities, as well as to allow for the full use of the Arena by the performers, sports teams, trade shows, conventions, and others who leased the Arena for various events (Arena Tenants).  Certain exterior areas around the Arena and related facilities were designated by the Policy as “nonpublic forum areas” and were specifically reserved for use by Arena Tenants and their authorized productions and affiliates (Policy Zone).  The Policy Zone, which was defined in the text and depicted on the diagrams accompanying the Policy, included the Plaza Area, the exterior plaza located at the southeast corner of the Arena property near the southeast doors to the Arena.  The Policy and accompanying diagrams also provided for and identified public areas outside the Policy Zone.  The Policy Zone did not include the pedestrian bridge or a path running along the eastern edge of the Plaza Area from the bottom of the pedestrian bridge to the adjacent public sidewalk.

First Amendment –Forum Analysis: The Eighth Circuit discussed the permitted control by government over expressive activities on its property, noting that the constitutionally of that control turns on the nature of the property involved and the restrictions imposed.  In order to determine the extent of permissible control the United States Supreme Court “has adopted a forum analysis as a means of determining when the [g]overnment’s interest in limiting the use of its property to its intended purpose outweighs the interest of those wishing to use the property for other purposes.”  In other words, “the extent to which the [g]overnment can control access depends on the nature of the relevant forum.”  The traditional public forum is  considered to be public property that has “traditionally been used for public expression” such as streets, sidewalks, and public parks because these venues have been held in trust for the use of the public and have been used for the purposes of assembly, communicating thoughts between citizens and discussing public questions. A “designated public forum” is created when the government intentionally opens up a nontraditional forum for public discourse.

In both the traditional or designated public forum, the government’s ability to permissibly restrict expressive conduct is very limited.  The government may impose a content-based restriction on speech only if the restriction “is necessary to serve a compelling state interest and . . . is narrowly drawn to achieve that end.”  The government may impose a content-neutral time, place, and manner restriction on speech as long as such restriction is “narrowly tailored to serve a significant government interest, and leave[s] open ample alternative channels of communication.” A nonpublic forum is government property that “is not by tradition or designation a forum for” expressive activities by the public.  The government retains much broader discretion to restrict expressive activities in a nonpublic forum.  The government “may reserve [a nonpublic] forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker’s view.”  The government “enjoys significantly greater latitude to regulate expressive activity” in a nonpublic forum, “including the ability ‘in some circumstances’ to ‘ban the entry . . . of all persons except those who have legitimate business on the premises.’”  A restriction on expressive activity in a nonpublic forum “need only be reasonable; it need not be the most reasonable or the only reasonable alternative.”

Opinion: Applying the above principles, the Eighth Circuit used a three-part analysis to determine whether or not the Plaza Area is a public forum.  After considering each of the relevant factors, i.e., (1) the Plaza Area’s physical characteristics; (2) its use, function, and purpose; (3) and the City’s intent in constructing the space, the Eighth Circuit agreed with the district court that the Plaza Area is a nonpublic forum. Although the Plaza Area shares some physical characteristics with a traditional public forum, there is no evidence that the public has used it for expressive activities.  Rather, the record establishes that the Plaza Area has been used primarily in conjunction with Arena activities.  Moreover, there is no evidence that the Appellees ever intended to open the Plaza Area for expressive activities by the public.  Having determined that the Plaza area was a nonpublic forum and that the Policy was viewpoint neutral and reasonable in light of  its purpose the Court ruled that the policy was constitutional. Ball v. City of Lincoln, Nebraska, (8th Cir., 16–3210, 05/29/17)

Comment Howard:  This opinion (23 pages long) provides a great template to analyze free speech questions with respect to traditional and nontraditional public forums.  It is packed with details showing how the policy, for events was controlled by the City of Lincoln, Nebraska.  This opinion would be a great starting point in developing a policy to control interrelated areas that serve many different purposes.

Shooting A Large German Shepherd Running Loose On An Interstate Highway Did Not Constitute The Use Of Excessive Force

Conan, a large German Shepherd, escaped from his backyard and ran down highway I–29 near St. Joseph obstructing traffic near a busy exit ramp where the speeds were 65 mph.  Trooper Black was dispatched to respond to the calls regarding the dog.

Black saw a German Shepherd running loose in the roadway and southbound vehicles swerving onto the right shoulder or rapidly changing lanes to avoid hitting the dog. Black, positioned his patrol car across the center stripe shutting down both southbound lanes, while he attempted to capture the dog.  This caused the traffic to back up on the southbound lanes of the interstate for a quarter of a mile.  He initially exited his patrol car and tried calling and running at the dog, but it ran away, down the center strip of the southbound lanes.

Black, then reentered his patrol car and drove after the dog and then  positioned his car to again block the southbound lanes of the interstate trying again to get the dog off the interstate.  Black then reentered his patrol car and drove as close to the running dog as he could.  He then exited and fired a shot at the dog from 50 to 70 feet away causing the dog  to fall down.  The dog continued south down the center of the southbound lanes using his front paws because his back legs were injured.  Black then shot the dog in the torso or chest and the dog dragged itself onto the grass median between the southbound and northbound lanes.  Black observing that the dog was now in pain and gravely wounded shot two more times to “humanely kill the dog.”

Hansen, the owner of the dog, filed a 1983 Civil Rights Act claiming that Black’s shooting and killing the dog violated the owner’s fourth amendment right under the United States Constitution because it constituted the use of unreasonable force while seizing the owners property.  The parties filed motions for summary judgment and the trial court ruled that there was an unreasonable seizure by Black, which violated the owner’s constitutional rights.  Black, then appealed to the Eighth Circuit.

Opinion: The Eighth Circuit reasoned that the district court erred because the district court failed to make its excessive force analysis “from the perspective of a reasonable officer on the scene.”  The Eighth Circuit concluded that the district court applied the wrong standard by determining that “in the calm aftermath, that [Trooper Black] could have taken a different course, (carrying the dog off the roadway) it improperly held Black to that “demanding standard,” rather than limit its inquiry to the objective reasonableness of Black’s conduct.

The District Court erred because it’s viewed the officer’s actions employing hindsight by reasoning that Black could have carried the dog off the roadway.  The District Court failed to consider Black’s actions when he shot the dog.  Black took this action after making multiple attempts to capture a dog without using force and only after his efforts were unavailing, did he shoot the dog for the first time.  The incident caused a dangerous quarter-mile traffic backup on a high-speed busy interstate.  Black did not have a Taser, catch, or pole and only after considering traffic safety as his first priority did he fire shots mortally killing the dog.

In addition, even if there was a constitutional violation, Black was entitled to qualified immunity because his conduct did not violate a clearly established Fourth Amendment right.  In order to avoid the defense of qualified immunity, Hansen was required to show that existing precedent placed Black’s conduct “beyond debate;” therefore Black was entitled to qualified immunity.  The District Court’s decision was  reversed.  Hansen v. Black, ( 8th Cir., 16–4162, 09/18/17)

Comment Howard: There are some interesting comments in this case, which may help in other cases with respect to escaped animals.  First, a property owners protected property interest wanes if his or her pet escapes.  While the court did not conclude a dog owner loses all of his or her property interest, when they allow their dogs to run at large, unleashed, uncontrolled, at that point the dog ceases to become simply a personal effect and takes on the nature of a public nuisance.  The mistake made by the district court  of looking forward, as to what the officer might do, instead of  looking at the situation of the officer at the time the officer acts is a fairly common mistake. Be on the lookout for this type of mistake.

Statute Of Limitations Begins With Discovery Of The Violation With Respect To The Data Privacy Protection Act

Shambour, a former law-enforcement officer, discovered through an audit report in 2013 that her Driver and Vehicle Services (DVS) records had been  improperly accessed fifty-nine times between 2003 and 2011, in violation of the Data Privacy Protection Act (DPPA).  DPPA restricts the use and distribution of personal information contained in motor-vehicle records.  DPPA outlines fourteen purposes for which government employees may access such records, including law-enforcement functions.  Access for unenumerated purposes constitutes a violation of the DPPA, which provides that “[a] person who knowingly obtains, discloses or uses personal information, from a motor vehicle record, for a purpose not permitted under this chapter shall be liable to the individual to whom the information pertains, who may bring a civil action in a United States district court.

Shambour filed her action against a number of individuals including cities and their employees alleging that these parties violated her statutory, constitutional, and common-law privacy rights by accessing or allowing access to her DVS records.  She alleged there was no reason under DPPA for officials to access her information except that her appearance “changed noticeably” since her time as an officer.  As such, she hypothesized that individuals viewed her record out of romantic attraction or curiosity about the changes in her appearance.  The district court ruled that her claims were time-barred under the four-year statute of limitations, which began when access was obtained to her records, not when she first discovered the violation.  Shambour, appealed to the Eighth Circuit arguing that her DPPA claims against the Defendants are not time-barred because the four-year statute of limitations starts when the unlawful accesses are discovered.  Defendants disagreed arguing that binding Eighth Circuit precedent holds that the limitations period commences as soon as a violation occurred.

The Eighth Circuit held that past precedent, holds that the limitations period commences as soon as a violation occurred; therefore, the district court’s decision was affirmed based upon existing precedent.  Shambour v. Carver County, (8th Cir., 16–1425, 09/25/17)

Comment Howard: This case is an outgrowth of an earlier 2015 case in McDonough v. Anoka County, where the Eighth Circuit directed the trier of the fact assess each complaint based upon: “…that each defendant’s alleged conduct must be assessed independently to insure that plaintiffs had pleaded sufficient and procedure regarding that defendant’s impermissible purpose to state a facially plausible claim to relief against it.”  It would seem, that once the district court got into the details the liability for government agencies was pretty limited, in no small part, due to the ruling that the four-year statute of limitations starts when the records are accessed.  Even though the decision is favorable to local government, I am bothered by the conclusion of the court that the statute runs from the time of the violation, not when it is first discovered.  It seems that this holding is fundamentally unfair to those who rights have been violated because there is nothing you can do to protect yourself from a DPPA violation if you do not learn about the violation until after the statute of limitations has expired.  In other words, the Eighth Circuit has nullified the statutory right to bring a cause of action if there is no disclosure until after the statute of limitations has expired.

Dedication Of Parkland Raises Questions Concerning Whether Or Not The Dedication Is In Perpetuity

Dedication of parkland to local government entities can raise questions concerning whether or not the dedication was in perpetuity when the government decides to dispose of the land or even when it acquires parkland.  Koch v. St. Louis County, recently decided by the Eastern District, provides useful guidance in answering these questions, which occur periodically in a local government law practice.

Facts and Procedure: In 1950, St. Louis County acquired the land now known as Sylvan Springs Park by quitclaim deed from the federal government, acting through the General Services Administration (“GSA”).  The deed was made “under and pursuant to” the Federal Property and Administrative Services Act.  Those laws, and particularly the amendments to the Surplus Property Act authorized the GSA to convey to a political subdivision like St. Louis County “all of the right, title and interest of the United States in and to any surplus land, which, in the determination of the Secretary of the Interior, is suitable and desirable for use as a public park, public recreational area, or historic monument, for the benefit of the public.”  The GSA was required to include in any deed of such a conveyance a provision mandating that the property “shall be used and maintained for the purpose for which it was conveyed for a period of not less than twenty years;” if the property ceased to be used for that purpose, it reverted to the federal government.  The GSA was also authorized to include other conditions in the deed necessary to safeguard the interests of the United States.

Consistent with these provisions, the 1950 deed provided that the GSA does “remise, release and forever quitclaim” the property at issue here to St. Louis County “for and in consideration of the continuous use and maintenance of the premises by [St. Louis County] as and for public park and recreational purposes, and in consideration of the payment of [$3,500].”  The market value of this land at the time was $7,000.  The deed provided that the County was “to have and to hold the said premises subject to the reservations, conditions and covenants herein contained.” There are seven enumerated conditions, the first of which is required by the Surplus Property Act, which states:

“For a period of twenty (20) years the premises above described shall be continuously used and maintained as and for public park and recreational purposes, for incidental purposes pertaining thereto, but for no other purposes.”

Also, during that twenty-year period, the covenants required the County to file biennial reports with the GSA demonstrating the premises was being used as intended and to obtain the GSA’s permission before selling, leasing or otherwise disposing of the property.  Another condition stated that the federal government had the right to possess and use the property free of charge during any national emergency; if this were to occur during the first twenty years, the County was responsible for all costs associated with this emergency use, but after that twenty-year period, the federal government would have to pay such costs.

The County could “secure abrogation of all the said conditions and covenant” by paying the balance of the full market value for the property during that twenty-year period.  In the event of a breach of any of these conditions or covenants during the twenty-year period “all right, title and interest in and to all of the said premises shall revert to and become the property of the United States of America at its option” and it shall have the immediate right of entry and possession of the property.  However, the deed also provided, “in the event the [GSA] fails to exercise the option to re-enter the premises for any such breach within twenty-one years from the date hereof, all of said conditions and covenants, together with all rights of the United States of America to re-enter thereon as hereinabove provided, shall as of that date terminate and be extinguished.”

Since the 1950 deed, the land has been used by the public and maintained by the County as a park.  The County held a public dedication ceremony for the park, which was initially named Rock Springs Park, but in 1954 became Sylvan Springs Park.  In 1969, voters in St. Louis County approved a general obligation bond for the development of new parks and the improvement of existing parks, including Sylvan Springs Park.  The bond proceeds were all spent by the 1980’s.  In 1980, the County leased a portion of the park to Bi-State for construction of a Park and Ride Lot.  The County now intends to sell 38 of the 70 acres that comprises the park to the Veterans Affairs Administration for expansion of neighboring Jefferson Barracks cemetery, which is predicted to reach capacity for gravesites within its existing perimeters in the next five years.

Appellants, as resident taxpayers of the County, filed a lawsuit asking for a declaration that the County had no lawful authority to sell, transfer or convey any part of the park for development as a cemetery and seeking an injunction preventing it from doing so. Appellants asserted several alternative grounds for support of its position: (1) that the 1950 deed was a common law dedication of the land to the public by the federal government; (2) that the County’s actions thereafter constituted a common law dedication by the County; or (3) that the 1969 bond created a trust under which the County was to maintain the land as a park for the benefit of the public.  The parties filed cross-motions for summary judgment, and the trial court granted the County’s motion and denied Appellants’ motion.  Appellants appealed to the Eastern District.

Opinion: Common Law Dedication:The first two points on appeal addressed common law dedication claims, which are proven by showing: (1) that the owner, by unequivocal action, intended to dedicate the land to public use; (2) that the land dedicated was accepted by the public; and (3) that the land dedicated is used by the public.

Intent To Dedicate: A common-law dedication must be a continuous, irrevocable offer to dedicate, which cannot be retracted unless it is no longer possible to fulfill the purpose of the dedication or the use of the property is abandoned in which case the property reverts to the grantor who dedicated the property.  In order to determine if there is a common-law dedication you look to the grantors intent, which is usually reflected in the deed of dedication.  In this case, the deed provided that the dedication was for 20 years and that the land shall be continuously used and to be maintained as a public park and for recreational purposes and for no other purposes; however, the dedication was subject to a number of restrictions, conditions and covenants that made it clear that the GSA did not intend the conditions were forever because they expired after 20 years.  In addition, under the restrictions the County could secure abrogation of the conditions and covenants by paying the balance of the full market value ($3,500) for the property during the 20-year period.  The language of the deed was expressly contrary to a permanent dedication of the land as public park; therefore, there was no common-law dedication.

Appellants also contended that the County’s actions after execution of the deed constituted a common law dedication by the County to the public for use of the land as a public park.  The Eastern District reviewed the use of the park by the County concluding that the lease of part of the land to Bi-State for a park-and-ride lot was inconsistent with Appellants’ claim.  In addition, other actions by the County in maintaining the park and making improvements were insufficient to show the requisite intent by the County to dedicate the land to the public forever.

Trust: Appellant’s also contended the County held the land in an implied trust for the public based on a 1969 bond measure, which voters approved for the purpose of creating new and improving existing parks, including Sylvan Springs; therefore, the County was prohibited from selling the park.  While a bond issue can create an obligation to use the funds from the bonds for the purpose for which the bonds were issued that duty is limited to accurately applying the funds to the extent of the obligation.  There was nothing in the bond issue to indicate that the bond measure required the park to remain a park forever or in any way limited the rights of the County as the owner of including the right to sell it; therefore, Appellant’s claim that there was a trust created by the bond issue to hold and use the park in perpetuity failed.  Koch v. St. Louis County, (ED105236, 07/29/17)

Comment Howard: The Eastern District cites extensively from Citizens For Preservation Of Buehler Park v. City of Rollaa case, which is illustrative of a dedication of parkland in perpetuity.  The Buehler Park decision was reviewed in this newsletter in 2007. Between the 2007 Buehler Park decision and this case you have a very good outline concerning what constitutes a dedication of parkland in perpetuity.  If I were researching this issue, I would start with these two cases.