More Civility Needed in Land Use Disputes

Mike T. White

Developers should know that they need the people who live in the homes nearby and that "Would you want this next to you?" is a legitimate question.

There is a high school near my home. The school has a public address system made more powerful in recent years, the rising volume finally prompting me to write a letter to the Principal. I received a polite apologetic reply and the volume went down a few decibels for awhile but is back to rock-concert levels. I have decided that it is one of the vicissitudes of life. Thus, the issue was "resolved" without gunplay or lawsuits.

As I look back over various zoning battles in or community, it strikes me that there is a parallel between competing land uses and competing religious views. Certain radical sects (remember the crusades?) have no room in their belief system for tolerance. Those who do not think as they do cannot be allowed to live on the same planet. There are some developers who discount all neighborhood objections as nibyism and legitimate environmental concerns as "tree-hugging". On the other side, there are complaining neighbors who want a private property owner to maintain his or her land in a natural state for the public's enjoyment. But the bulk of developers and neighborhood advocates are somewhere in between. And there are developers who listen to the concerns of neighbors, for example, Zona Rosa at I-29 and Barry road in Platte County.

But still, there is an "us" versus "them" mentality that characterize these disputes. We all need to realize that we are in this world together and we cannot say, "your end of the boat is sinking". Developers should know that they need the people who live in the homes nearby and that "Would you want this next to you?" is a legitimate question. Home-owners need to understand that you can't pull up the ladder once you get where you are going. Practically every development, including the house you live in, probably was objected to by someone. And building a box store is not the equivalent of killing children. (That argument is seriously made, more often than you would think.) Ultimately, the common-law doctrine of nuisance will protect property owners, from abusive land use and the Constitu-tion will prevent the public from using private property as a park. Under a relatively new law, Section 82.1025 R.S.MO. (1999), property owners with-in a reasonable distance from a property declared by the city to be a nuisance may bring an action for the damage caused by the nuisance. Currently the law applies only to Kansas City and St. Louis, but could be amended to in-clude other areas of the state. However the doctrine of nuisance does not protect a citizen from mere inconvenience or petty annoyances. A remedy having been provided should be used in the proper circumstances. This applies to economic incentives as well as land uses. Every year, this one being no exception, there are at least 20 bills introduced in the legislature attempting to curb proposed "abuses" of incentive tools, principally Tax Increment Financing. Since only about 200 of the 3000 or so bills introduced each year are passed and sent to the Governor, it seems clear that some are trying to use the legislature to perform the functions of our judicial system. If indeed, these tools are being abused, those claiming injury should be willing to litigate rather than legislate. The legislature has made remedies available, and they should be used before asking the legislative branch of government to engage in ad hoc remediation of every problem. But both legislation and litigation should be reserved for truly egregious situations. A little tolerance would go a long way toward reducing both.

Mike White is the Chairman of the Board of Directors at White Goss Bowers March Schulte & Weisenfels. He may be reached at 816.753.9200 or by e-mail at mwhite@whitegoss.com.