The City of Rolla announced today that the Missouri Court of Appeals, Southern District, had reversed the dismissal of the petition seeking to enjoin the city from selling Buehler Park and ordered the case back to the Circuit Court for review.
"Although we are disappointed by this setback," said City Administrator John Butz, "we are confident in the end the court will decide, as it did before, that the city has the authority to sell the property, as it has agreed to."
Jerry Cohen, president of the Citizens for the Preservation of Buehler Park said his initial reaction is that it is a favorable development for those trying to preserve the park. But the case isn’t over, he said.
“We’ll have to see what happens now when the case returns to the trial court,” Cohen said. “On a general note, we now have a new mayor who comes to his job with a full appreciation of the importance of honoring the letter and spirit of any insurance policy issued by him and his company. I hope this spirit will carry over to an appreciation of the importance of honoring the letter and spirit of the 1958 dedication deed which unequivocally states that Buehler Park ‘shall be used for park purposes only and none other...FOREVER.’”
About ten years ago the city had contracted to sell the park to Cracker Barrel to build a restaurant. A citizens’ group had sued at that time, alleging the park property had been dedicated to Rolla for use as a park by the terms of a deed from the Rolla Chamber of Commerce in the 1950’s. In 1997 the Chamber of Commerce released the City of that restriction by a quit claim deed.
The local court held those seeking to stop the sale did not have standing to sue and that, in any case, the deed did not prevent the city from selling the park. In an appeal of that decision, the court of appeals agreed those filing suit did not have standing. Unfortunately the court of appeals did not rule on the City’s authority over the park. Because of the delay caused by the litigation, Cracker Barrel never purchased the property, electing instead to build a restaurant in St. Robert.
The City of Rolla subsequently has contracted to sell the park, located at the corner of Kingshighway and Fairgrounds Road, to American Realty for development as a restaurant district. Citizens for the Preservation of Buehler Park, among other citizen groups, had sued in Phelps County Circuit Court to stop the sale.
In the Court of Appeals decision on Wednesday, the court said the local Circuit Court was premature in dismissing plaintiffs’ suit without hearing evidence to determine if the city had improperly spent money to sell the property. "The amount of money involved was less than $400 for advertising and postage costs to prospective developers interested in the property," said Butz.
In reviewing the opinion rendered by the Missouri Court of Appeals Southern District Bruce A. Morrison, an attorney with the Great Rivers Environmental Law Center in St. Louis, a non-profit group that is handling the case for Citizens for the Preservation of Buehler Park said the court isn’t addressing whether the user of the park has standing, which is a measure used to determine who has the right to bring suit. The question seems to be whether the city has used a legal expenditure of funds to promote the sale.
“It looks like the court is looking at both issues. Number one, is the property devoted to the public to be used as a park to be known as Buehler Park,” Morrison said. “If so, if there is an expenditure from public funds in an attempt to sell the park, that would have to be an illegal expenditure. But conversely, if there was no dedication, than any expenditure of public funds would be a legal expenditure.”
Morrison feels that the Chamber of Commerce’s quit-claim to the property is a “non-issue.” When there is a dedication of property, he said, that means the property is set aside for public use.
“This is a form of a trust,” Morrison said. “When property is dedicated to public use there is no longer just a buyer and seller of public property. In this case, it would really be like two sellers of the property. What the law refers to the public as is the beneficiaries of a trust.”
Butz said the appeals court took no position on the question of the legality of the sale itself, but said the city erred in not providing an opportunity for evidence to be submitted to the group’s standing in light of the fact that the City had spent taxpayer’s dollars to advertise the property and the postage to do that. A city ordinance required that, when an offer was made on the property that the property itself be advertised for sale and it was the expenses incurred by that action that caused the Court of Appeals to reverse the earlier dismissal.
City Council will consider the matter at Monday’s Council meeting, Butz said.
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