City of Independence v. Richards, WD

Citation666 S.W.2d 1
Decision Date29 November 1983
Docket NumberNo. WD,WD
PartiesCITY OF INDEPENDENCE, Missouri, Respondent, v. Leora RICHARDS, Appellant. 34,211.
CourtCourt of Appeal of Missouri (US)

Rufus Burrus, W. Raleigh Gough, Independence, for appellant.

J. Scott King, Asst. City Counselor, Independence, for respondent.

Before SOMERVILLE, P.J., and SHANGLER and MANFORD, JJ.

SHANGLER, Judge.

The defendant Richards was convicted for the infraction of City of Independence ordinance number: Chapter 7, Article 2, § 7.140 and assessed a fine under penal § 7.230. The cause was heard de novo in the circuit court, the infraction was found anew and a $250 fine imposed.

Ordinance § 7.140 provides:

It shall be unlawful for any person owning or occupying any premises within the City to permit refuse to accumulate or remain upon such premises to an extent or in such manner as to be unsightly, annoying, dangerous or detrimental to the life, health, property or safety of any person in the City. [emphasis added]

The complaint 1 alleged that on October 1, 1981, the defendant Richards did wilfully and unlawfully

"permit refuse namely: an old stove with pots and cans scattered on the ground to accumulate on the outside of her premises at 8900 Thompson in such a manner as to be unsightly and an annoyance to other persons in the City ...." [emphasis added]

The defendant acknowledges that, in the exercise of the police power, an ordinance may regulate private property to protect the general welfare. [See Bellerive Investment Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628, 633, 634 (1929) ]. Thus, she concedes that the proscription of § 7.140 against the accumulation of refuse on private property in such manner as to pose a danger to the life, health, or safety of others legislates a valid municipal purpose. She contends, however, that the ordinance component which interdicts an accumulation of trash unsightly or annoying merely, but not to prevent a danger to the public, legislates esthetics and not the police power. The police power extends to conditions which bear a substantial relation to the public health, morality, safety or welfare. State v. McKelvey, 301 Mo. 1, 256 S.W. 474, 477 (banc 1923); C. Antieau, Municipal Corporation Law § 6.00 (1983). There is no precondition that the legislation always protect against a public danger. Ex Parte Williams, 345 Mo. 1121, 139 S.W.2d 485 (Mo.1940). That the ordinance is cast in terms of danger does not diminish its effect as an enactment of the plenary police power--to advance the general welfare. That is to say: an express reference by the text that the enactment is for the protection of the health, safety, morality and welfare of the public is unnecessary where the fact of the ordinance discloses that purpose. Bellerive Investment Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628, 634[2-4] (1929). The question the appeal poses, therefore, is whether the municipal regulation of private property for unsightliness only relates to the police power--that is: whether esthetic values impinge upon the public health, morality, safety or welfare.

It remains open whether our law tends to recognize esthetics as an independent basis for the exercise of the police power. 2 The early decisions confirmed the common law principle that only a palpable benefit to the general welfare could justify the police power to interfere with the enjoyment of private property. State v. McKelvey, 301 Mo. 1, 256 S.W. 474, 477 (banc 1923). Thus, a statute [The Boulevard Law] which enabled a city with an enumerated population to establish a building line on a boulevard to which all appurtenant structures must conform was deemed a confiscation of private property and not a mere regulation under the police power, notwithstanding the declared purpose of the enactment was as a traffic control. City of St. Louis v. Hill, 116 Mo. 527, 22 S.W. 861, 862-863 (1893). In that early climate of opinion, regulation based on esthetic consideration was neither a purpose encompassed within the police power "no[r] in accord with the spirit of our democratic institutions." City of St. Louis v. Evraiff, 301 Mo. 231, 256 S.W. 489, 495[2-5] (banc 1923). Thus, an ordinance to regulate the dimensions and placement of outdoor advertisement signs to protect against their use as private privies and as places of refuge for criminals was a valid exercise of the police power--but not to ensure against unsightliness. St. Louis Gunning Advertisement Co. v. City of St. Louis, 235 Mo. 99, 137 S.W. 929, 961 (1911).

That tenor of opinion gave way--with only intermittent relapse--to an emergent public awareness that an unsightly environment impinges adversely on human sensibility and to a concomitant readiness of legislatures to accommodate that value as an element of the general welfare, and hence as a proper subject for the exercise of the police power. Thus, in Deimeke v. State Highway Commission, 444 S.W.2d 480 (Mo.1969), our Supreme Court upheld the validity of a junkyard control statute as an exercise of the police power. In the course of opinion, the court acknowledged the newly evolved doctrine and explained the rationale [l.c. 483-484]:

[E]arlier Missouri cases stated that aesthetic considerations alone would not justify exercise of the police power, although such factors might be considered along with other things relating to health, safety or morals ... Similar views prevailed in many states, although it was arguable that in some of the casees the predominant reason for the regulation was in fact aesthetic. However, more recently a growing number of cases have recognized a change in the scope of the term "general welfare," ... In this connection, the recent experiences of our nation, particularly in the urban areas, indicate that offensive and unsightly conditions do have an adverse effect on people and that beauty and attractive surroundings are important factors in the lives of the public. The general welfare is promoted by action to insure the presence of such attractive surroundings.

The court found also that the appearance of property affects not only its own value but that of property in the environs as well. Id. at 484. Then, in State ex rel. Stoyanoff v. Berkeley, 458 S.W.2d 305 (Mo.1970), an ordinance to create an architectural board with power to regulate building design to promote a conformity of sightliness among structures was sustained as a valid exercise of the police power against the contention that the regulation rested on a purely esthetic consideration. The Stoyanoff court responded [l.c. 309] with Deimeke that property use which offends visual sensibility also debases property values and so an ordinance which protects against unsightliness is a valid exercise of the police power. That rationale was iterated in State ex rel. Wilkerson v. Murray, 471 S.W.2d 460 (Mo.1971), to validate an ordinance which defined single family dwelling so as to exclude trailers and mobile homes from a residential area.

These decisions approve a police power exercise to protect against structural unsightliness on the rationale that such a visual blight, when become permanent, necessarily debases the value of property in the environs, and so affects the general welfare. The augury and implicit premise of these decisions--as Deimeke and Stoyanoff show--is that esthetic consideration alone suffices for the exercise of the police power. That does not introduce a new public policy. The Missouri Constitution empowers the legislature to preserve scenic beauty. [Mo. Const. Art. III, § 48]. The Billboards Act [§§ 226.500-226.600 RSMo (1978) ] regulates outdoor advertisements in order "to preserve the natural scenic beauty of highways and adjacent areas"--albeit, not as an exercise of the police power, but to conform to federal standards. That augury comports with the early declaration by the United States Supreme Court in Berman v. Parker, 348 U.S. 26, l.c. 33, 75 S.Ct. 98, l.c. 102, 99 L.Ed. 27 (1954) that:

"The concept of the public welfare is broad and inclusive ... [t]he values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that the community should be beautiful as well as healthy, spacious as well as clean ...."

[That same court later, but more definitively, reaffirmed the right of states and municipalities to preserve, through the police power, structures of esthetic significance as well as the esthetic character of a city as an enhancement of the quality of life. Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) ]. It comports also with the views of the majority of jurisdictions. Steinbach, Aesthetic Zoning: Property Values and the Judicial Decision Process, 35 Mo.L.Rev. 176 (1970). We need not and do not determine, however, whether the augury we discern [that the Missouri decisions tend to the principle that esthetic consideration alone suffices for the exercise of the police power] has come to pass. 3

The reluctance of the courts to sanction esthetic controls was prompted as much by the difficulty to articulate an objective standard as by the lack of an evolved cultural ethos. The court in St. Louis Gunning Advertisement Co. v. City of St. Louis, supra, saw such a regulation as merely one set of tastes opposed to another [l.c. 137 S.W. 961-962]:

A statute or ordinance conforming to the tastes and ideas of beauty passed by the body of lawmakers who enact it might and probably would in most instances be distasteful to a majority of the people of the city; and especially is that true as regards this class of legislation. The matters which would most likely be the subjects to this class of legislation are, as a rule, more pleasing to those who are far removed therefrom than they are to those who reside near them and who are...

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8 cases
  • Boyles v. City of Topeka
    • United States
    • Kansas Supreme Court
    • April 20, 2001
    ...test inquiries in place, we next turn to consider Boyles' void-for-vagueness argument. Boyles relies primarily on City of Independence v. Richards, 666 S.W.2d 1 (Mo. App. 1983). Richards was cited for having an old stove and scattered pots and cans in her yard in an unsightly and annoying m......
  • BBC Fireworks, Inc. v. State Highway and Transp. Com'n
    • United States
    • Missouri Supreme Court
    • April 21, 1992
    ...times and under all circumstances, but is subject to the state's inherent right to exercise its police power. In City of Independence v. Richards, 666 S.W.2d 1, 6 (Mo.App.1983), the court, though not ruling on the issue, noted "that the Missouri decisions tend to the principle that aestheti......
  • Wintercreek Apartments v. City of St. Peters
    • United States
    • U.S. District Court — Eastern District of Missouri
    • March 21, 1988
    ...Wilkerson v. Murray, 471 S.W.2d 460, 463 (Mo.), cert. denied, 404 U.S. 851, 92 S.Ct. 87, 30 L.Ed.2d 90 (1971); City of Independence v. Richards, 666 S.W.2d 1, 6 (Mo.Ct. App.1983). Furthermore, in Wilkerson v. Murray, the Missouri Supreme Court sustained an ordinance restricting mobile homes......
  • Bezayiff v. City of St. Louis
    • United States
    • Missouri Court of Appeals
    • November 4, 1997
    ...from unsightliness and other visual intrusion enhances life and is a value that the police power will protect. City of Independence v. Richards, 666 S.W.2d 1, 7 (Mo.App.1983); See also, BBC Fireworks, Inc. v. State Highway and Transp. Com., 828 S.W.2d 879, 882 (Mo.1992). City also argues th......
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1 books & journal articles
  • Saving the spirit of our places: a view on our built environment.
    • United States
    • UCLA Journal of Environmental Law & Policy Vol. 15 No. 1, June 1997
    • June 22, 1997
    ...1981); and National Used Cars, Inc. v. City of Kalamazoo, 233 N.W.2d 64 (Mich. Ct. App. 1975). But see City of Independence v. Richards, 666 S.W.2d 1 (Mo. Ct. App. (93.) See, e.g., Save San Francisco Bay Ass'n v. San Francisco Bay Conservation and Dev. Comm'n, 13 Cal. Rptr. 2d 117 (Ct. App.......

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