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Southern District clarifies law regarding preelection challenges to referendum petitions

In Elevation Enterprises, LLC v. City of Springfield, No. SD 37129 (June 8, 2022), the Southern District Court of Appeals ruled that decisions on a rezoning referendum petition were not ripe for judicial review until after the election was held and results were certified.

Elevation Enterprises, LLC (“Elevation”) sought, and received City Council approval of a rezoning of the subject property. Citizens upset with the results of this rezoning then circulated and filed a referendum petition with the City Clerk, seeking to repeal the rezoning ordinance. The referendum petition was certified by the City Clerk and considered by the City Council—who chose to not repeal the rezoning at issue. Per City Charter, the referendum petition was then put onto the August 3, 2021 ballot for a vote of the people. Crucially, the City of Springfield’s Charter did not provide for exceptions to the general referendum or initiative powers, as upheld by State ex rel. Powers v. Donohue, 368 S.W.2d 432 (Mo. banc 1963) (Board of Election Commissioners’ refusal to place zoning initiative petition upheld where County Charter prohibited such ordinance).

Elevation then filed suit against the City to permanently enjoin the referendum election, claiming that the referendum petition, if passed, would violate the zoning procedures outlined in Missouri law (Chapter 89 RSMo.) and the City’s Charter. Elevation argued that the referendum process to overturn its rezoning decision conflicts with the City Charter and Chapter 89, and therefore is void. The trial court agreed, enjoining the referendum election from taking place.

The Southern District Court of Appeals overturned the trial court’s ruling, holding that the question was not ripe for judicial review. To reach this holding, the Southern District cited two recent Missouri Supreme Court opinions (Boeving v. Kander, 496 S.W.3d 498 (Mo. banc 2016) and City of Kansas City v. Kansas City Board of Election Commissioners, 505 S.W.3d 795 (Mo. banc 2017)), which “adopted a bright-line test prohibiting preelection challenges to what a ballot proposal would do, if approved by the voters. Instead, after Boeving, preelection challenges are limited to claims that the procedures for submitting a proposal to the voters were not followed.” Elevation Enterprises, LLC, page 11 (citing City of Kansas City, 505 S.W.3d at 798-99) (emphasis added). The Southern District, in following this Missouri Supreme Court precedent, ruled that as the City Clerk certified that there were no procedural defects in the referendum petition, there was no ripe preelection challenge.

The main take away from this case is that cities with referendum procedures established by City Charter or statute may have limited options after certifying a referendum petition to the governing body of the city. It is particularly important that, if any of these issues develop in your city, you consult with your city attorney.

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