State ex rel. Birk v. City of Jackson

907 S.W.2d 181, 1995 Mo. App. LEXIS 1297, 1995 WL 418659
CourtMissouri Court of Appeals
DecidedJuly 18, 1995
DocketNo. 66846
StatusPublished
Cited by8 cases

This text of 907 S.W.2d 181 (State ex rel. Birk v. City of Jackson) 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
State ex rel. Birk v. City of Jackson, 907 S.W.2d 181, 1995 Mo. App. LEXIS 1297, 1995 WL 418659 (Mo. Ct. App. 1995).

Opinion

AHRENS, Judge.

In this court-tried case, plaintiffs, Glen Birk, Robert Felker, and Cape County Concerned Citizens, Inc.,1 appeal the judgment of the trial court in favor of defendants on plaintiffs’ petition for mandamus, declaratory judgment and damages. We affirm.

The City of Jackson is a fourth class city located in Cape Girardeau county. In September of 1977, the City purchased property in an arms’ length transaction, without the use or threat to use eminent domain. The property is located approximately two to three miles outside the corporate limits of the City. The City has continuously owned the property since 1977, and until recently, operated a landfill on the property.

Plaintiff Birk owns property contiguous to the City’s property. Plaintiff Felker owns [183]*183property within one-half mile of the City’s property and adjacent to County Road 341 leading to the landfill.

In late 1993, in response to the change in federal landfill operation regulations effective April 9,1994, the City decided to sell or lease the landfill. On January 31, 1994, the City Council met in special session to discuss a plan to enter into a lease/purchase agreement with a private operator. Mr. Birk, representing residents along County Road 341, voiced their objections and concerns regarding the sale or lease of the landfill.

On January 31, February 7 and 22,2 the council met in closed sessions to discuss the lease/sale of the landfill. The City Attorney advised the City Council that the lease/sale could be discussed in closed session pursuant to an exception in the Open Meetings Law under § 610.021(2) RSMo 1994. The City Council believed that public knowledge would have affected the companies’ presentation of the bid proposals and the terms of the proposals. Bid proposals from two companies were submitted and discussed at the January 31 closed session. Allied Waste Disposal submitted a third bid proposal in early February. The status of negotiations with Allied was discussed at the February 7 closed session. The City Council discussed the plaintiffs’ concerns in study sessions with plaintiffs present and in closed sessions relating to the lease/sale of the landfill.

On February 21, 1994, plaintiffs requested records concerning the landfill. At the closed session on February 22, the City Attorney reported receiving plaintiffs’ request. On February 24, the City Attorney wrote plaintiffs’ attorney requesting additional time to provide most of the requested documents. The City Clerk officially responded to plaintiffs’ request in a letter dated February 28. All records in the possession of the City requested by plaintiffs were produced for their inspection beginning February 28, with the exception of the minutes of the closed sessions concerning the lease/sale of the landfill. Plaintiffs and their counsel inspeet-ed records at City Hall on February 28 and March 1.

The City Attorney received a contract for the lease of the landfill by Allied late in the afternoon on March 7,1994. Prior to receiving the contract, a City Council meeting had been scheduled for that same evening, with the agenda already printed and posted for the meeting. The contract was received too late in the day to add it to the posted agenda for the City Council meeting set for that evening.

At its meeting on March 7, the City Council passed an ordinance approving the contract between Allied and the City for the lease of the landfill. The contract contains specific terms and conditions addressing plaintiffs’ concerns about trash blowing away from the landfill, maintenance of County Road 341, and potential environmental problems.

On March 9, the City Attorney advised plaintiffs that the minutes of the closed sessions concerning the lease/sale of the landfill were available. On March 14, 1994, Mayor Sander signed the contract to lease the landfill to Allied.

Plaintiffs filed their petition March 4,1994, and later their amended petition on April 1, which contained four counts. Count I alleged that defendants violated the Missouri Sunshine Law by failing to produce certain documents as requested. Plaintiffs sought civil penalties as provided by law, and an order in mandamus to require compliance by defendants, to enjoin defendants from further illegal refusals of documents, and to void any action by the City in violation of the Sunshine Law, particularly the ordinance and contract regarding the landfill. In Count II, plaintiffs requested the same relief as in Count I, and attorneys fees, for the improper closed meetings under the Sunshine Law. Count III requested declaratory judgment and injunction declaring that the City has no legal right to continue to operate the landfill upon land situated outside the City’s corporate limits and an order declaring the landfill contract void. Finally, Count IV was a 42 [184]*184U.S.C. § 1983 action for alleged violations of plaintiffs’ rights to due process and equal protection under the United States Constitution.

In reviewing a bench-tried case, we must sustain the judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Patrick V. Koepke Construction, Inc. v. Woodsage Construction Co., 844 S.W.2d 508, 512 (Mo.App.1992). On appeal, we view the evidence in a manner favorable to the decree and disregard contradictory evidence. Zalmanoff v. Zalmanoff, 862 S.W.2d 941, 944 (Mo.App.1993). We defer to the trial court’s determination of the credibility of witnesses. Rule 73.01(e)(2).

In their first point on appeal, plaintiffs contend that the trial court erred in finding that Missouri law authorizes a city of the fourth class to own property outside of its boundaries for the purpose of operating a landfill. They assert that no express or implied statutory authorization exists for the City to own and operate a landfill beyond the corporate limits.

In its judgment, the trial court held that “[t]he City of Jackson is impliedly granted authority to own and/or operate a landfill located outside the City boundaries by the Missouri Constitution, RSMo 71.690, 79.370, 79.380, and 260.215.” The court further found that the City has the implied authority “because collection and disposal of garbage is essential and indispensable in the maintenance of its citizens and the city.”

“A municipal corporation is a creature of the legislature possessing only those powers expressly granted, or those necessarily or fairly implied in or incidental to express grants, or those essential to the declared objects of the municipality, and any reasonable doubt as to whether a power has been delegated to a municipality is resolved in favor of non-delegation.” City of Kirkwood v. City of Sunset Hills, 589 S.W.2d 31, 35-36 (Mo.App.1979). Where the legislature has authorized a City to exercise a power and prescribed its exercise, “the right to exercise the power given in any other manner is necessarily denied.” City of Hamilton v. Public Water Supply Dist., 849 S.W.2d 96, 104 (Mo.App.1993) (quoting State ex rel. Blue Springs v.

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Bluebook (online)
907 S.W.2d 181, 1995 Mo. App. LEXIS 1297, 1995 WL 418659, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-birk-v-city-of-jackson-moctapp-1995.