Stop Work Order
Harmony Pointe planned to construct a mixed-use project consisting of multi-family apartments and other commercial developments in Cottleville, Missouri. On May 18, 2022, the City approved the final plan for the project. On November 1, 2022, the City approved the construction plan and on November 7, 2022, the City issued permits. On May 19, 2023, the City issued stop work permits on the basis that the work had not been started within 1 year of the final plan as required by City Code.
At issue in this matter was whether the work conducted by Harmony Point from November 7, 2022, and May 15, 2023, constituted construction. During this time Harmony Point drilled borings, cleared trees, surveyed and staked the site, erected a job board, and steel fabrication plates were installed on the site. The City contended that under the City code this did not constitute construction. The City Code did not provide a definition of “construction” under the section at issue. The City relied on a dictionary definition.
The Eastern District decided that it should not look at the term construction in isolation. Instead, the Eastern District sought to harmonize the term with the other sections of code and looked at the entirety of the code. After reviewing the city code the Eastern District found that the work conducted by Harmony Point was sufficient and consistent with how the entirety of the code defined construction. Therefore, the decision of the Board of Adjustment upholding the stop work order was not authorized by law because the City’s approval of the project’s final plan had not expired under § 405.390(C) of the city code. Harmony Pointe v. City Of Cottleville, (ED112620, 3/11/2025)
Untimely Appeal Of Building Permit
In this matter, Property Owners submitted home building plans to the neighborhood board of trustees. David Oetting (Oetting) was a member of the board and opposed the building plan, but the other board members voted for and approved the plan. The Property Owner then obtained building permits from the City of Ladue which approved the permits on August 2022.
After the Property Owner began construction the Property Owners requested a variance to build non-conforming retaining walls from the City. The variance request was opposed Oetting. The variance was approved by the City.
Nearly a year after the variance request Oetting advised the Property Owners about potential issues with the development, including that the Property Owners lacked 90 feet of frontage which is required by the city code. The City investigated the issue and subsequently confirmed that the frontage was only 82.13 feet. Oetting then appealed the issuance of the building permits. The Board held a hearing and determined that Oetting’s appeal was untimely because it was raised 30 days after the issuance of the permits. Oetting appealed that decision by the Board.
In Missouri, “[T]he commencement of the period runs from the date that grievant becomes chargeable with notice of issuance of the permit complained of, provided there has been no element of undue delay or laches.” Id. (quoting Cave v. Zoning Bd. of Appeals of Village of Fredonia, 49 A.D.2d 228, 373 N.Y.S.2d 932, 935 (1975)). In this matter Oetting did not argue that thirty days is unreasonable, as a result, Oetting’s appeal needed to be filed within thirty days of the date that he was chargeable with notice of the permit’s issuance. The Board found that he failed to do so under the facts presented to them. There was substantial evidence that Oetting had notice well in advance of his appeal, including: his opposition to the variance in October 2022 and the fact that construction had been ongoing at the neighboring property since roughly September 2022. At the latest, Oetting had notice that the objectionable permits were issued to the Property Owners on June 19, 2023, when his attorney addressed the Property Owners urging them to “cease further construction pending the resolution of these issues. The Board’s findings were upheld on the basis that the permit was for residential construction on a lot that Oetting believed had insufficient frontage for that purpose. Oetting had knowledge of the potential frontage issue and failed to promptly appeal. Oetting v. City of Ladue, (ED112717, 3/11/2025)
EPA Rules On Clean Water Act Do Not Permit End Result Requirement
The EPA under the Clean Water Act regulates entities that discharge pollutants into the waters of the United States. Discharging pollutants is prohibited unless authorized by a permit. The permits have “effluent limitations” on discharges. The limitation typically restricts the “quantities, rates, and concentrations of chemical, physical, biological, and other constituents.” If a regulated entity fails to comply with the permit the entity could face civil penalties or criminal prosecution.
The City of San Francisco operates wastewater treatment facilities that process both wastewater and stormwater. When there is significant rainfall, the facilities may not be able to process the wastewater and stormwater which results in the City discharging untreated water and sewage into the Pacific Ocean. This discharge is subject to a control policy implemented by the EPA which requires San Fransico to develop and implement a Long-Term Control Plan.
In 2019, the EPA renewal permit added two requirements that prohibited the facility from making any discharge that contributes to a violation of any applicable water quality standard for receiving waters. San Fransico challenged the new requirement because it believed the requirements were an “end-result” requirement and “end-result” exceeded the EPA’s authority. The Ninth Circuit denied the City’s petition for review. The matter was appealed to the Supreme Court
At issue is that the “end result” requirement does not specifically impose obligations on the permittee conduct but instead provides that the permittee is responsible for the quality of the body water in which the permittee discharged pollutants. The pre-1972 Water Pollution Control Act (WPCA) contained a similar provision that allowed direct enforcement against a polluter if the quality of the water into which the polluter discharged pollutants failed to meet water quality standards. Congress chose to deliberately move away from “end result” requirement with the 1972 Clean Water Act and adopted the current permitting process which regulates the effluent being discharged by the permitted entity and that effluent must be within the limitations provided by the permit.
End-result requirements would negate the CWA’s “permit shield” protecting compliant permittees from liability. The EPA’s interpretation provides no mechanism for fairly allocating responsibility among multiple dischargers contributing to water quality violations. The agency has adequate tools to obtain needed information from permittees without resorting to “end result requirements. San Francisco v. EPA, (SCOTUS 23-753, 3/04/2025)
Ghost Guns
In 1968 Congress passed the Gun Control Act (GCA) which requires those engaged in importing, manufacturing, or dealing in firearms to obtain a federal license, keep sales records, conduct background checks, and mark their products with serial numbers. The Act defines “firearm” to include “(A) any weapon . . . which will or is designed to or may readily be converted to expel a projectile by the action of an explosive; and (B) the frame or receiver of any such weapon.” 18 U. S. C. §921(a)(3).
New technology has resulted in significant changes in the way guns can be made and sold. This technology includes selling part kits that can be assembled at home. These weapons are untraceable and have been called “ghost guns” due to the inability to trace them.
In response to the emergence of untraceable guns and other issues the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) adopted a rule interpreting the Act to cover weapon part kits that are “designed to or may readily be converted to expel a projectile,” 27 CFR §478.11, and “partially complete, disassembled, or nonfunctional” frames or receivers, §478.12(c).
Before the ATF could enforce its rule, gun manufacturers and others filed what they described as a facial challenge under the Administrative Procedure Act, arguing that the GCA cannot be read to reach weapon part kits or unfinished frames or receivers. The District Court agreed and vacated the rule. The Fifth Circuit affirmed, holding that §921(a)(3)(A) categorically does not reach weapon parts kits regardless of completeness or ease of assembly, and that §921(a)(3)(B) reaches only finished frames and receivers.
The Supreme Court looked at this issue differently finding these regulations serve a legitimate governmental interest in that the background-check requirement seeks to keep “guns out of the hands of criminals.” While the licensing, recordkeeping, and serialization requirements, assist law enforcement authorities in investigating serious crimes.
The plaintiffs argued that the regulation was facially invalid because under the GCA the ATF only has the authority to regulate finished firearms and not unfinished firearms and firearm parts. In this type of challenge, the government represented, “the possibility that ATF’s regulation may be invalid as applied’ in some cases ‘does not mean that the regulation is facially invalid.’ Under this type of challenge, the plaintiffs must show the Rule is inconsistent on its face.
SCOTUS determined that if Congress had wanted to regulate only operable firearms, it could have simply addressed “weapons” that can “expel a projectile by the action of an explosive.” However, Congress went further and provided that a “weapon” also qualifies for regulation if it is either “designed” to accomplish that function or “capable of being “readily . . . converted” to do so”. §921(a)(3)(A). Those latter provisions necessarily contemplate that some things short of fully operable firearms will qualify as “weapons.” And if that is true, it is difficult to see how the easy-to-assemble “Buy Build Shoot” kit might not be among them.
Because at least some weapon parts kits fall under the GCA, the regulation is not facially invalid. Future cases may present other and more difficult questions about ATF’s regulations. The 5th Circuit was reversed, and the case was remanded. Bondi v. Vanderstok, (SCOTUS 23-852, 3/26/25)
Supreme Court Further Clarifies Limits On Attorney Fees In Civil Rights Cases
The Virgina legislature passed a statute that provided that any person who had failed to pay their past fines and court cost would have their driver license automatically suspended until the person paid those unpaid fines and cost. Damian Stinne (Stinne) challenged the statute as unconstitutional. The District Court hearing the challenge granted a preliminary injunction prohibiting the state from enforcing the statute and required the state to reinstate any license suspended under the law. Prior to a trial the state repealed the statute, and the parties agreed to dismiss the pending case as moot.
The plaintiffs then sought attorney’s fees as a prevailing party under § 1983. The District Court declined to award attorney’s fees under the belief that only obtaining a preliminary injunction is not sufficient for a party to qualify as a “prevailing party”. The Fourth Circuit reversed the district court and remanded the matter. The Fourth Circuit held that some preliminary injunctions can provide lasting merit-based relief and qualify plaintiffs as prevailing parties. The state appealed to the Supreme Court on whether the plaintiff should be awarded attorney fees.
Under the “American Rule” a prevailing litigant is not normally entitled to collect attorneys’ fees from the loser absent express statutory authorization. Under federal statute 42 U.S.C. §1983 under §1988 provides that the court upon its discretion may award the prevailing party attorney fees. When §1988 was passed the prevailing party was defined as the party who successfully maintained its claim when the matter was finally resolved. Preliminary injunctions do not make a party prevailing because they do not conclusively decide the case on the merits. The purpose of a preliminary injunction is to preserve the status quo until the trial can occur.
The Court’s precedents interpreting §1988(b) establish that a plaintiff “prevails” when a court grants enduring judicial relief that materially alters the legal relationship between the parties. There are two recent decisions on this issue. Both cases emphasize that this change must be both judicially sanctioned and enduring and it is not enough that the plaintiff was catalyst for voluntary change in a defendant’s conduct. In this matter the plaintiff gained no enduring change in the legal relationship between the plaintiff and the defendant which was rendered by a conclusive adjudication and affirmed by a judicial sanction therefore the plaintiff is not a prevailing party as would be envisioned under § 1988. Lacky v. Stinnie, (SCOTUS 23-621, 2/25/2025)
Reverse Discrimination Case
The Supreme Court recently heard a case where the plaintiff is alleging that she was the victim of reverse discrimination. Under the facts alleged, Marlean Ames (Ames), a heterosexual woman, was employed by the Ohio Department of Youth Services (OYS) for two decades and was promoted several times and received reasonably good job performance reviews. In 2017, Ames began reporting to a new supervisor who was gay. Ames applied for a promotion in 2018 but failed to obtain the promotion. The promotion Ames sought went to a gay woman who had not applied for the job and lacked the minimum qualifications for the role. After Ames was denied the promotion, she was demoted, and put in a position with lower pay. OYS then filled Ames’s previous job with a gay man. Ames alleged these negative actions took place because she was a heterosexual woman.
The 6th Circuit found that Ames needed to establish the background circumstances to support her allegation of reverse discrimination such as showing a member of the minority group made the allegedly discriminatory decision or provided statistical evidence demonstrating a pattern of discrimination against a member of the majority group.
The federal courts are currently split on whether majority-group plaintiffs must show background circumstances. It has been reported that at the hearing the Supreme Court seemed concerned that the 6th Circuit opinion was problematic in that it imposed an additional requirement on Ames because she is straight. The court seemed to acknowledge that this case could lack merit but that shouldn’t prevent the court from addressing the applicable standard in this type of case to ensure that all allegations of discrimination are treated equally. It was reported that the Supreme Court seems willing to overturn the lower court decision that required Ames to meet a higher bar for her case to move forward. Ames v.Ohio Department of Youth Services, (23-3341, Heard on 2/26/2025); SCOTUSBLOG
Comment: As we have seen over the years it can be challenging to prevail in an employment discrimination case, or it can be incredibly challenging to defend against an employment discrimination allegation. Even if the state prevailed on this issue or prevailed at a later stage of litigation there seems to be an incredibly problematic issue which is there is an allegation that they hired a person who was not qualified and did not apply for the job.
Important Events
Missouri Municipal Attorney Association Summer Seminar is scheduled for July 11-July 13, 2025, at Margaritaville Lake Resort in Osage Beach, Missouri. For additional information follow this link about the event. MMAA Summer Seminar
IMLA Events: IMLA has several upcoming events. I have provided links to those events below.
IMLA Mid-Year Seminar April 25-April 28, 2025
IMLA Annual Conference In New Orleans October 17- October 21, 2025
MMAA Newsletter 