by Paul M. Brown
In the last session of the Missouri General Assembly, the Republican legislature passed by a wide margin and with strong bi-partisan support a Democratic bill, SB 731, which would give city neighborhoods a powerful self-help tool for fighting blight. SB 731 would allow neighborhood organizations to bring a private cause of action to enforce city ordinances through a court order enjoining any condition or activity on private property that constitutes an ordinance violation and adversely affects a neighborhood.
SB 731 was drafted by Lawyers for City Neighborhoods, a committee of the Bar Association of Metropolitan St. Louis that connects volunteer lawyers with neighborhood organizations to combat problem properties that create urban blight. The bill was sponsored by Senator Jamilah Nasheed, a Democrat from north St. Louis, and managed in the House by Minority Caucus Leader Representative Mike Colona, a Democrat from south St. Louis.
The bill passed through Senate committee by a unanimous vote with the support of the committee chair, Senate Majority Caucus Leader Senator Eric Schmitt, a Republican from St. Louis County, and was brought to a vote in the House through the efforts of House Majority Leader John Diehl, a Republican from St. Louis County. SB 731 was passed with large, bi-partisan majorities in both chambers – 79% of Democrats and 86% of Republicans in the two chambers voted for passage.
On the last day for signing or vetoing the bill, Governor Nixon used his veto pen on
SB 731. Hopefully, legislators from both sides of the aisle who supported the bill during the regular session will examine the facts and continue to support SB 731 in the September veto session. If they do, the Governor’s veto of SB 731 will be easily overridden since the bill passed during the regular session with an 83% majority in the Senate and a 76% majority in the House. A 67% majority in each chamber is all that is needed to override the Governor’s veto during the veto session.
Here are the facts about SB 731 and the Governor’s stated grounds for vetoing the bill.
SB 731 actually amends two existing Missouri statutes – § 82.1025 and §§ 82.1027 – 82.1030. Section 82.1025 currently applies to the City of St. Louis, Jackson County (Kansas City), and other metropolitan counties. It simply codifies the common law of private nuisance. On the other hand, §§ 82.1027 – 82.1030, in their existing form, apply only to Jackson County (Kansas City) and create a statutory remedy that does not exist at common law for enjoining a condition or activity on property that constitutes an ordinance violation. In drafting SB 731, Lawyers for City Neighborhoods sought principally to make §§ 82.1027 – 82.1030 apply to the City of St. Louis as well as Jackson County.
In his veto message, Governor Nixon says he vetoed SB 731 bill because of an amendment that was added to the bill on the floor of the Senate by Senator Kurt Schaefer, a Republican from Columbia. According to Governor Nixon, Senator Schaefer’s amendment “give[s] a broad new immunity for polluters creating environmental hazards and contamination.” The volunteer lawyers who drafted SB 731 disagree with Governor Nixon’s assessment of Senator Schaefer’s amendment.
The amendment added by Senator Schaefer provides that: “No action shall be brought under section 82.1025 or 82.1027 to 82.1030 if the owner of the property that is the subject of the action is in good faith compliance with any order issued by the department of natural resources, the United States Environmental Protection Agency, or the office of the attorney general.” This language does not prevent SB 731 from being used to combat problem properties or impede in any way the ability of property owners to bring private nuisance actions against polluters.
SB 731 explicitly states that it “is not intended to abrogate, and shall not be construed as abrogating, any remedy available under the common law of private nuisance.” Thus, SB 731 does not prevent citizens from bringing private lawsuits against polluters under traditional common law remedies; it merely adds a new statutory remedy for private citizens to combat urban blight.
Furthermore, § 82.1025 and §§ 82.1027 – 82.1030 were never intended to be used against polluters and have never been used for that purpose. Rather, these two statutes, which are codified in a chapter on municipal government, were intended to be used against urban blight, such as building code violations, brothels, drug houses, noise, and loitering – and that is all these sections have ever been used for.
SB 731 provides a self-help tool that empowers city neighborhood organizations to help themselves in combating blight. Democrats and Republicans should come together during the veto session, as they did during the regular session, to support this legislation and override Governor Nixon’s well intentioned, but misinformed, veto of SB 731.
Paul M. Brown is a lawyer in private practice in downtown St. Louis. He is the chair of Lawyers for City Neighborhoods, co-chair of the Residents Council for the Partnership for Downtown St. Louis, and a founder and board member of Lafayette Preparatory Academy, a public charter school in downtown St. Louis.