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Responsibility for abating nuisance is limited to property owner or occupant

Updated: Jun 29, 2022

A recent Missouri Court of Appeals decision, Fred Kemp Co., LLC v. City of Black Jack (February 9, 2021), confirmed that while city ordinances may be utilized to suppress nuisances, any such ordinances cannot expand Missouri statute's list of persons who may be required to abate such nuisances. In Fred Kemp Co., the Jamestowne Subdivision in the City of Black Jack was developed by Fred Kemp Company, LLC (“Developer”). More than eight years after development was complete, the City’s Mayor determined that “the portion of the street in front of 13017 Kinsley Heights Drive,” located within the Jamestowne Subdivision, was “affected by water seepage issues” and declared it to be a “public nuisance.” Black Jack’s City Code Section 13-1(b) provided that “[w]hen the director of public works...ascertains that public nuisance as described above exists, the director...may serve written notice to the owner or other person in control of such property[.]” Pursuant to this code section, the City sent Developer a letter demanding that Developer abate this nuisance by “correcting the water seepage issues and repairing and/or replacing the affected portions of the street.”

Developer contested the City’s determination that it was the party responsible for suppressing the nuisance and requested a hearing before the City’s Department of Public Works. After the hearing, an appointed hearing officer found that the water seepage issues on Kinsley Heights Drive existed at the time Developer sought to dedicate the street to the City and concluded that Developer “has and has had control over and responsibility for the roadway and curbing on Kinsley Heights Drive.” Therefore, “[i]t is [Developer’s] responsibility to abate and eliminate the condition or conditions creating this public nuisance.”

Developer sought review of the hearing officer’s decision by the St. Louis County Circuit Court. The circuit court reversed the hearing officer’s decision, and the City appealed. On appeal, the Court of Appeals concluded that “the hearing officer did not have the authority to order [Developer] to abate the nuisance because [Developer] was neither the owner or occupant of the property.” In reaching this decision, the Court specifically looked to Section 71.780 RSMo., which grants cities the power to suppress nuisances within their boundaries, including by enforcing the cities’ ordinances. That statute provides that the expense of abating a nuisance “may be assessed against the owner or occupant of the property, and against the property on which said nuisance is committed, and a special tax bill may be issued against said property for said expenses.” The Court concluded that this statute clearly limits “who cities may hold responsible for the expense of abating the nuisance to: (1) the owner of the property, (2) the occupant of the property, and (3) the property itself, through a special tax bill.” The Court further determined that Black Jack’s City Code erroneously sought to expand § 71.780 to include those in “control” of the property and stated affirmatively that “Section 71.780 does not permit the City to hold parties responsible for nuisances unless they are the owner or occupant of the property.” Because there was no evidence that Developer was the “owner or occupant of the property,” Developer could not be responsible for abating the nuisance.

Municipalities must keep § 71.780 RSMo. in mind when drafting nuisance ordinances. If a nuisance code seeks to expand the authority given by statute as to who is responsible for abating nuisances, the municipality may end up in costly litigation that could have otherwise been avoided. In this situation, it might be best to look to the subdivision regulations or any improvement guarantees given by a developer during development rather than the nuisance code.

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