City of Arnold v. Tourkakis

• Decision Date: 18 March 2008
• Docket Number: No. SC 88647.,SC 88647.
• Citation: City of Arnold v. Tourkakis, 249 S.W.3d 202 (Mo. 2008)
• Parties: CITY OF ARNOLD, Appellant, v. Homer TOURKAKIS, et al., Respondents.
• Court: Missouri Supreme Court

249 S.W.3d 202

CITY OF ARNOLD, Appellant, v. Homer TOURKAKIS, et al., Respondents.

No. SC 88647.

Supreme Court of Missouri, En Banc.

March 18, 2008.

Rehearing Denied April 29, 2008.

Gerard T. Carmody, Kelley F. Farrell, Kameron W. Murphy, JoAnn T. Sandifer, St. Louis, Robert K. Sweeney, Hillsboro, for Appellant.

Timothy S. Sandefur, James S. Burling, Pacific Legal Foundation, Sacramento, CA, Tracy Hunsaker Gilroy, Michael A. Wolff, Michael F. Barnes, Robert D. Vieth, Jovita M. Foster, Armstron Teasdale, LLP, David P. Abernathy, John F. Medler, Jr., Kenneth C. Jones, St. Louis, William C. Dodson, Imperial, Marc B. Fried, Dennis J. Kehm, Jr., Office of the County Counselor, Hillsboro, for Respondents.

Howard C. Wright, Jr., Springfield, Amicus Curiae for Missouri Municipal League, et al.

Jennifer Z. Roland, David E. Roland, St. Louis Amicus Curiae for Show-Me Institute.

Marc H. Ellinger, Jefferson City, Amicus Curiae for National Federation of Independent Business Legal Foundation.

Robert W. Gall, William H. Mellor, Scott Bullock, Arlington, VA, Paul A. Martin, St. Louis, Ronald J. Eisenberg, Chesterfield, Counsel for the Institute for Justice and The Office of the Ombudsman for Property Rights.

MARY R. RUSSELL, Judge.

The question in this case is whether the City of Arnold ("the City"), a non-charter city, is authorized to exercise the power of eminent domain. This Court holds that article VI, section 21 of the Missouri constitution and relevant statutes permit the City to do so. The judgment of the trial court is reversed, and the case is remanded.¹

Homer and Julie Tourkakis ("Landowners") own a residential building located in Arnold that was converted into a dentist's office. The Arnold City Council adopted ordinances declaring Landowners' property and the surrounding area to be blighted pursuant to the Missouri Real Property Tax Increment Allocation Redevelopment Act ("TIF Act") and approved a redevelopment plan for the area. The City then began acquiring properties in the redevelopment area. After Landowners refused to sell their property, the City sought to acquire it by eminent domain. The City, a third class city, filed a petition stating that it was exercising its power of eminent domain under section 99.820, RSMo 2000,² a part of the TIF Act, as well as other statutes.³ Landowners moved to dismiss the City's action, arguing that since the City was a non-charter city, it lacked the authority to use eminent domain for redevelopment purposes and that any statute granting such power violated article VI, section 21 of the Missouri constitution. They allege the constitutional provision only permits constitutional charter cities and counties to utilize eminent domain to condemn property to eliminate blight and effectuate redevelopment plans.

After briefing and oral argument, the trial court dismissed the City's condemnation petition with prejudice, finding that the City did not have the power to exercise eminent domain to condemn blighted property. Specifically, the trial court stated it did "not believe that the Missouri Constitution allows a taking [of private property through eminent domain] by the City." It further held that "the [City] lacks constitutional authority to take the property of defendants under Chapter 99 and that to the extent Chapter 99 is inconsistent with Article 6, Section 21 of the Constitution of 1945, it is declared unconstitutional." The City now appeals. Since this action involves the validity of state statutes, this Court has exclusive jurisdiction over this appeal. MO. CONST. art. V, sec. 3.

I. Standard of Review

The standard of review for constitutional challenges to a statute is de novo. Hodges v. City of St. Louis, 217 S.W.3d 278, 279 (Mo. banc 2007). Likewise, this Court reviews a trial court's interpretation of the Missouri constitution de novo. StopAquila.org v. City of Peculiar, 208 S.W.3d 895, 899 (Mo. banc 2006). A statute is presumed to be valid and will not be declared unconstitutional unless it clearly contravenes some constitutional provision. Doe v. Phillips, 194 S.W.3d 833, 841 (Mo. banc 2006).

II. Validity of the TIF Act

The City asserts that the trial court erred in dismissing its condemnation action in that condemnation is authorized under the TIF Act because it allows the City to condemn property for the redevelopment of blighted areas. Additionally, the City contends that article VI, section 21 of the Missouri constitution confirms, rather than limits, the legislature's inherent power to authorize the use of eminent domain for the clearance of blighted areas. The City also argues that chapter 99 is not unconstitutional because it is not inconsistent with article VI, section 21.

The legislature has the right to authorize the exercise of the sovereign power of eminent domain. Bd. of Regents for Ne. Mo. State Teachers Coll. v. Palmer, 356 Mo. 946, 204 S.W.2d 291, 294 (1947). Unless restricted by the constitution, the power is unlimited and practically absolute. State ex inf. Danforth v. State Envtl. Improvement Auth., 518 S.W.2d 68, 72 (Mo. banc 1975).

The TIF Act, enacted in 1982, allows urban renewal of blighted areas by permitting tax abatements to be used for the redevelopment of these areas. It is codified within chapter 99 and authorizes "municipalities" to utilize eminent domain to take private property to facilitate redevelopment.⁴

Municipalities, under the TIF Act, are permitted to adopt a redevelopment plan for areas that are blighted and to use eminent domain to acquire property within the redevelopment area. Sections 99.805(1); 99.810.1(1), RSMo 2000. The utilization of eminent domain, however, is "subject to any constitutional limitations." Section 99.820.1(3). The trial court found that such a constitutional limitation existed under article VI, section 21 of the Missouri constitution.

Article VI, section 21 of the Missouri constitution provides:

Laws may be enacted, and any city or county operating under a constitutional charter may enact ordinances, providing for the clearance, replanning, reconstruction, redevelopment and rehabilitation of blighted, substandard or insanitary areas, and for recreational and other facilities incidental or appurtenant thereto, and for taking or permitting the taking, by eminent domain, of property for such purposes, and when so taken the fee simple title to the property shall vest in the owner, who may sell or otherwise dispose of the property subject to such restrictions as may be deemed in the public interest.

(emphasis added).

In interpreting this provision, it is first necessary to distinguish between constitutional charter cities and non-charter cities. A constitutional charter city derives its power from article VI, section 19(a) of the state constitution, which grants it all the power the legislature could grant. Cape Motor Lodge, Inc. v. City of Cape Girardeau, 706 S.W.2d 208, 210 (Mo. banc 1986). Article VI, section 19(a) of the state constitution states in part,

Any city which adopts or has adopted a charter for its own government, [sic] shall have all powers which the general assembly of the state of Missouri has authority to confer upon any city, provided such powers are consistent with the constitution of this state and are not limited or denied either by the charter so adopted or by statute.

A non-charter city, such as Arnold, derives its power from the legislature's enactment of laws. See St. Louis County v. Univ. City, 491 S.W.2d 497, 499 (Mo. banc 1973). It has no inherent power of eminent domain, but rather only those powers granted to it by the constitution or statutes. See In re Armory Site in Kansas City, 282 S.W.2d 464, 466 (Mo.1955).

Article VI, section 21 sets forth two sources of authorization to empower cities to use eminent domain in implementing plans for redeveloping blighted areas. The phrase "Laws may be enacted" indicates that the legislature has the authority to pass statutes to allow non-charter cities to utilize eminent domain to eliminate blighted areas. The conjunctive provision "and any city or county operating under a constitutional charter may enact ordinances" permits political subdivisions operating under a constitutional charter to use their inherent authority to enact ordinances and condemn property without the necessity of statutory authorization. See MO. CONST. art. VI, sec. 19(a).

If article VI, section 21 were intended to limit the power of eminent domain to only charter cities and counties, the phrase "Laws may be enacted" would be surplusage. See Ensor v. Dir. of Revenue, 998 S.W.2d 782, 784 (Mo. banc 1999) ("Every word in a constitutional provision is assumed to have effect and meaning; their use is not surplusage." (quoting Buechner v. Bond, 650 S.W.2d 611, 613 (Mo. banc 1983))). The usage of that phrase indicates that the General Assembly also has the power to provide eminent domain authority to non-constitutional charter cities. Arnold, as a non-charter city, derives its authority to utilize eminent domain from statutes, including the TIF Act. The plain and unambiguous meaning of article VI, section 21 does not place any limits on legislative enactments for noncharter cities or on the enactment of ordinances by charter cities to exercise eminent domain.⁵

The trial court erred finding that article VI, section 21 limits the entities that may exercise the power of eminent domain for redevelopment purposes and in dismissing the City's condemnation action. The City is authorized under several statutes, including the TIF Act, to exercise eminent domain. For these reasons, the trial court erred in finding chapter 99 unconstitutional in that it is not inconsistent with article IV, section 21 of the Missouri constitution. The judgment of the trial court is reversed, and the case is remanded.

STITH, C.J., LIMBAUGH, WOLFF, and BRECKENRIDGE, JJ., and...