ANNUAL UPDATE ON
MISSOURI LAND USE
CASES
PRESENTED TO THE
MISSOURI MUNICIPAL ATTORNEYS' ASSOCIATION
ANNUAL MEETING
JULY 15-17, 2011
STEPHEN P. CHINN
ANDREA G. BOUGH
PUBLIC LAW GROUP
STINSON MORRISON HECKER LLP
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Stop the Beach Renourishment, Inc.
v.
Fl. Dep't of Envtl. Prot.,
130 S.Ct. 2592 (2010).
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Property Rights
•
Mean high-water line – the boundary line
between littoral property (private beach front) and
state owned land (average reach of high tide over
19 years).
•
Accretions – gradually and imperceptibly
occurring additions of alluvion (sand, sediment or
other deposits) to water front land.
•
Relictions – lands once covered by water that
become dry when the water recedes.
•
Alluvion – sudden or perceptible loss of or
addition to land by water action or sudden
change in its bed.
•
Littoral Property – land that abuts on a body of
water.
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Rights of Littoral Owners
•
•
•
•
Access to the water
Use of water for certain purposes
Unobstructed view of the water, and
To receive accretions and relictions
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Littoral Owners and the State
Littoral owner automatically takes title to dry
land added by accretion
Owner of sea bed takes title to formerly
submerged land that becomes dry by avulsion
Whether avulsive event exposes land or
submerges land, the mean high water mark
before the event, remains the boundary
between littoral property and the sea bed
The littoral owner has no right to subsequent
accretions, when a new strip of land is added
to the shore by avulsion
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8th Circuit TCA Cases
• USCOC of Greater Missouri, LLC v.
County of Franklin, Missouri (8th Cir.
No. 09-2525, March 2, 2011)
• St. Charles Tower, Inc. v. Kurtz (8th
Cir. No. 10-2412, June 28, 2011)
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USCOC of Greater Mo.
 “Without power to mandate any and all
permits contemplated by the federal claim,
we would essentially perpetuate ‘an end
run around the requirements of the TCA
and thereby allow local regulatory
agencies to subvert a federal policy by
elevating zoning authority over
congressional policy as enacted into law
via the TCA.” (quoting Ogden Fire Co.
No. 1 v. Upper Chichester Township, 504
F.3d 320 (3d Cir. 2007)
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St. Charles Tower
 “While USCOC of Greater Missouri perhaps
stands for the proposition that federal courts have
authority under the TCA to mandate the issuance
of a building permit as an available form of relief
for improper denial of a [CUP], the court in
USCOC of Greater Missouri was not faced with –
and did not purport to decide – the distinct
question whether this form of relief is necessary
to correct a TCA violation involving the improper
denial of a conditional use permit. . . . Compelling
the issuance of other permits, such as a building
permit, simply is not a necessary remedy for this
violation.”
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Other TCA Cases
• USCOC of Greater Mo. v. City of
Ferguson, Mo., 583 F.3d 1035 (8th
Cir. 2009).
 USCOC alleged that the City had violated the
"in writing" requirement because it had failed
to issue its decision within 30 days.
 A local government's final action occurs when
there is a written decision, thus the 30 day
limitation for filing an action does not begin
until then.
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• Sprint Spectrum, L.P. v. Platte County,
Mo., 578 F.3d 727 (8th Cir. 2009).
Aesthetic concerns can be valid basis on
which to deny's the permit.
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• Pub. Water Supply Dist. No. 3 of
Laclede County, Mo. v. City of Lebanon,
605 F. 3d 511 (8th Cir. 2010).
 The verbs "curtail" and "limit" suggest that a city
curtails and limits service within the meaning of
Section 1926 when it initially provides service to a
customer, not when it continues to do so.
 The phrase “during the term of such loan" limits
the scope of a rural district's exclusive provider
status to the period during which the loan is
outstanding.
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• Phelps-Roper v. City of Manchester,
Mo., 738 F. Supp. 2d 947 (E.D. Mo.
2010).
 The 8th Circuit has "unequivocally refused to
recognize the government's significant interest in
protecting unwilling listeners outside the
residential context."
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• Neighborhood Enters., Inc. v. City of St.
Louis, Mo., 718 F. Supp. 2d 1025 (E.D.
Mo. 2010).
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State Cases
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• St. Louis County v. Berck, 322 S.W.3d
610 (Mo. Ct. App. E.D. 2010).
 "Although the TIF Act and condemnation
statutes share a common application in
certain factual situations, each statute has
an application, function and purpose
separate from the other."
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• Kindred v. City of Smithville, 292
S.W.3d 420 (Mo. Ct. App. W.D. 2009).
Section 432.070 was not violated because
the concerns the legislature sought to
address were not present in this case.
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• Land Clearance for Redevelopment
Auth. of City of St. Louis v. Inserra, 284
S.W.3d 641 (Mo. Ct. App. E.D. 2009).
Eminent domain legislation that passed in
2006 did not invalidate a prior legislative
finding of blight nor did it change the
court's standard of review.
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