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Johnston v. Livingston County Commission

Court of Appeals of Missouri, Western District, First Division

June 9, 2015

LARRY JOHNSTON and GLORIA GAY JOHNSTON, Respondents,
v.
LIVINGSTON COUNTY COMMISSION, Appellant

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[Copyrighted Material Omitted]

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Appeal from the Circuit Court of Livingston County, Missouri. The Honorable Daren L. Adkins, Judge.

Larry A. Johnston, Respondent, Pro se, Chillicothe, MO.

Gloria G. Johnston, Respondent, Pro se, Chillicothe, MO.

For Appellant: Adam L. Warren, Livingston County Prosecuting Attorney, Chillicothe, MO.

Before Division One: James Edward Welsh, Presiding Judge, and Thomas H. Newton and Karen King Mitchell, Judges.

OPINION

Karen King Mitchell, J.

Page 862

This appeal follows the circuit court's reversal of the Livingston County Commission's entry of a Public Nuisance Order against Larry and Gloria Johnston. Because of the parties' and the circuit court's failure to abide by the requirements of the Missouri Administrative Procedure Act (MAPA), we vacate the circuit court's

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judgment and remand the matter for further proceedings consistent with this opinion. 2

Background

On May 11, 2011, the Missouri Legislature passed Senate Bill 187, which amended § 67.402(1)(6)[1] to allow " [a]ny county of the third classification with a township form of government and with more than fourteen thousand five hundred but fewer than fourteen thousand six hundred inhabitants" to " enact nuisance abatement ordinances as provided" by § 67.402. 2011 Mo. Legis. Serv. 41 (West). Senate Bill 187 became effective on August 28, 2011.

On November 8, 2012, the Livingston County Commission passed Ordinance 11812, pursuant to § 67.402(1)(6), providing procedures for nuisance identification and abatement. Among the required procedures provided in Ordinance 11812 was a public hearing, wherein " any party may be represented by counsel, and all parties shall have the opportunity to be heard and present evidence." At the conclusion of a hearing, the Commission is required to either issue a public nuisance order, if supported by the evidence, or not issue a public nuisance order if the evidence fails to support the existence of a public nuisance.

In accordance with these procedures, the Commission held a public hearing on March 25, 2014, to determine whether there existed a public nuisance on the Johnstons' property. At the hearing, the Commission heard testimony from the Johnstons, the County Nuisance Enforcement Officer, and neighboring property owners, and received exhibits. Following the hearing, on April 3, 2014, the Commission issued a public nuisance order, finding that the Johnstons' property constituted a public nuisance under Ordinance 11812 and that the nuisance was detrimental to the health, safety, and welfare of the community. Accordingly, the Commission ordered the Johnstons to remove the specific conditions identified in the order within thirty days. If they failed to do so, the County Nuisance Enforcement Officer would come upon their property and remove the items at the Johnstons' expense. The order advised the Johnstons of their right to appeal the order to the Livingston County Circuit Court within thirty days of the order.

Thereafter, on May 1, 2014, the Johnstons filed a " Verified Petition for Judicial Review" in the Livingston County Circuit Court, seeking review of the Commission's decision on the grounds that it was not supported by competent and substantial evidence and that the Johnstons had already commenced work to abate the nuisance within the time frame specified by the Commission. The record of the proceedings before the Commission was never filed with the circuit court, but the Commission raised no objection. Rather, the Commission requested a " trial setting," and subsequently presented evidence to the circuit court, without any objection by the Johnstons.

Following a purported " de novo review" under § 536.140.3, the circuit court issued its findings and judgment, declaring that the Commission's Public Nuisance Order entered against the Johnstons was " beyond the statutory authority of Livingston County, Missouri, and [was] therefore reversed." The circuit court found, sua sponte, that, based upon the 2010 Census, the population of Livingston County was

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15,195 and therefore outside the population limits provided by § 67.402(1)(6). The Commission filed a motion to reconsider or amend the judgment, arguing that the 2010 Census was not the applicable source for determining the population of Livingston County for purposes of § 67.402(1)(6) when the ordinance was enacted. Rather, the Commission argued, under § 1.100, the court was to apply the 2000 Census data, which determined the population of Livingston County to be 14,558, which was within the parameters of § 67.402(1)(6). The circuit court overruled the Commission's motion, and the Commission filed an appeal with this court.

After filing the notice of appeal, the Commission filed the record on appeal and the appellant's brief, challenging the circuit court's judgment. The Johnstons filed a respondent's brief, defending the circuit court's judgment. Neither party mentioned or challenged the Commission's ...


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