Friends of the City Market v. Old Town Redevelopment Corp.

714 S.W.2d 569
CourtMissouri Court of Appeals
DecidedMay 13, 1986
DocketNo. WD 37322
StatusPublished
Cited by6 cases

This text of 714 S.W.2d 569 (Friends of the City Market v. Old Town Redevelopment Corp.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Friends of the City Market v. Old Town Redevelopment Corp., 714 S.W.2d 569 (Mo. Ct. App. 1986).

Opinion

NUGENT, Judge.

Plaintiffs appeal the summary judgments entered against them on both counts of their petition for declaratory judgment in which they seek a determination that their notices of intent to circulate referendum petitions were timely filed. The notices were filed on the eleventh day after passage of an ordinance in the face of a provision of the city charter which requires that such notices be filed within ten days. In this case the tenth day fell on a Sunday. Defendants question the standing of the plaintiffs to challenge the validity of the ordinance in question. We affirm the judgments.

The record and the evidence adduced by plaintiffs at a hearing on defendants’ motions for summary judgment revealed the following factors. On September 13, 1984, the Kansas City city council adopted Ordinance No. 56936 approving a plan for redevelopment of the area of the city market and authorizing entry into a contract with Old Town Redevelopment Corporation for that purpose.

Section 15 of Article II of the City Charter of Kansas City includes the following provision:

All other ordinances shall take effect ten days after the date of their passage, unless a later date therefor be indicated therein; provided, however, that if within ten days after the passage thereof there be filed with the city clerk a notice signed by not less than one hundred registered voters of the city stating the intention of such registered voters to cause referendum petitions to be circulated to submit any such ordinance, or any part thereof, to the electors, such ordinance shall, subject to the provisions of this charter relating to the referendum, take effect forty days from the date of its passage unless a later effective date be fixed in such ordinance.

Opponents of the redevelopment plan followed the debate over the proposed ordinance during the time before its adoption and were present at the time of its passage on September 13, 1984. In the ensuing week, they attempted to obtain a copy of the ordinance as amended together with the two exhibits supposed to be attached to it. Exhibit “A” to the ordinance is a development plan submitted in May, 1984, by Old Town Redevelopment Corporation, a corporation organized under Missouri’s Urban Redevelopment Corporations law, Chapter 353, Revised Statutes of Missouri, 1978.2 Public hearings on the plan had been held on July 17, and the city plan commission had later recommended its approval and submitted a report on the plan, which became Exhibit “A.” The city clerk on September 17, furnished a certified copy of the ordinance to plaintiffs, including a copy of Exhibit “A.”

Section 3 of Ordinance No. 56936, provides, “That the Director of Finance be, and he is hereby, authorized and directed on behalf of the City to enter into a contract with the Old Town Redevelopment Corporation, a copy of which is attached hereto and made a part hereof as Exhibit ‘B.’ ” When the opponents of the plan and the ordinance and their counsel sought a copy of the ordinance from the city clerk in the days following September 13, the clerk was unable to find and give them a copy of the contract, Exhibit “B.”

Between Thursday, September 13, and Thursday, September 20, the redevelopment plan’s opponents, now the plaintiffs, discussed strategy and by September 20, had decided to pursue a referendum in accordance with Article II, § 15, of the city charter. Plaintiff Diane Whitacre exam[572]*572ined that provision and saw its ten-day provision for filing the notice of intent. On about September 19 or 20, William Poindex-ter, counsel for the opponents, spoke with the chief deputy city clerk, Ivan Waite, about the filing deadline. Mr. Waite gave Mr. Poindexter his opinion that the deadline was 5:00 o’clock, Friday, September 21, since the tenth day after passage of the ordinance fell on Sunday, the 23rd. Mr. Poindexter told Mr. Waite that he disagreed with him and would rely on the statute. He did not request that the clerk’s office be opened on Saturday, the 22nd, or Sunday, the 23rd, to receive the filing of notices of intent.

Between Wednesday, September 19, and 11:00 o’clock Saturday morning, the plan’s opponents had collected and given to Mr. Poindexter the signatures of more than three hundred registered voters to begin the referendum effort. Mr. Poindexter took those notices to the city clerk’s office on Monday, September 24, and filed them. The clerk accepted the notices and at once requested a check of the registration of the voters who had signed documents. Only one hundred signatures are required, and a few days later the Board of Election Commissioners advised the clerk that the notices bore the signatures of two hundred eighty registered voters.

On October 4, 1984, the city counselor advised the clerk that the September 24 filing was too late under the charter provision, that the ordinance became effective on Sunday, September 23, and that plaintiffs’ notices of intent were invalid because untimely. He instructed the clerk to refuse to accept any petitions in referendum pertaining to ordinance No. 56936.

Despite repeated requests for it, plaintiffs did not obtain a copy of Exhibit “B,” the contract between the city and redevelopment corporation, until December 5, 1984.

The plaintiff filed a one-count petition in this action on October 23, 1984, seeking a declaratory judgment that their September . 24 filing of the notices of intent was timely. In December, 1984, after receipt of a copy of Exhibit “B,” plaintiffs filed an amended petition adding Count II.

Count I of the amended petition recites the passage of Ordinance No. 56936 and plaintiffs’ attempts to obtain a certified copy of it from the city clerk and the clerk’s “refusals” to furnish plaintiffs a copy on September 14. Plaintiffs also allege that they did not file their notices of intent on Sunday, September 23, because the city clerk’s office was closed. Finally, Count I avers that defendants' acts were wrongful and that the defendant city officials had conspired with the corporate defendants to hinder, delay and deny plaintiffs a chance “to participate by popular vote in the fate of the City Market.”

Count II alleges that on September 13, 1984, the city council did not have before it and had not seen a copy of the contract (Exhibit “B”) when it adopted Ordinance No. 56936, that “said contract was untimely prepared and executed ... on or about October 8, 1984,” a fact wrongfully concealed from plaintiffs and the public. Count II avers that, finally, on December 5, 1984, the clerk “discovered” and delivered to plaintiffs a copy of Exhibit “B.” It also charges defendants with an unlawful conspiracy to deny plaintiffs their constitutional rights and prays for a declaratory judgment that the ordinance did not become effective on September 23, 1984.

Defendants filed motions to dismiss and motions for summary judgment contending that the facts needed to support a summary judgment for defendants were pleaded in plaintiffs’ petition and that no further proof was necessary. Nevertheless, at plaintiffs’ request, a hearing on defendants’ motions was held on January 4, 1985. The defendants stood on their motions for summary judgment and offered no evidence. Plaintiffs adduced evidence, pertinent parts of which we have already summarized. The court called for briefs on the plaintiffs’ contention that because of defendants’ acts and omissions they were es-topped to assert that plaintiffs’ notices were filed late.

[573]

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Cite This Page — Counsel Stack

Bluebook (online)
714 S.W.2d 569, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friends-of-the-city-market-v-old-town-redevelopment-corp-moctapp-1986.