How do you measure a mile?
Village of Table Rock's future could hinge on distance from Kimberling City.
Amos Bridges
News-Leader
Is a mile measured as a crow flies, or as a man walks?Efforts to block Lebanon businessman Robert Plaster from creating his own village — possibly side-stepping county regulations — could hinge on the answer. Opponents are rooting for the crow. Plaster's backing the longer route in a complicated legal battle with the Stone County Commission.Lake-area legislators have vowed to try to reverse controversial changes to the state's "village law" that cleared several hurdles from Plaster's path. Any legislative repeal likely would not be retroactive, however, so a legal showdown between a handful of Plaster-backed residents and the commissioners appears inevitable. The proposed Village of Table Rock, if incorporated successfully, would be here to stay. That means an area judge will likely get an earful soon about crows flying and men walking. Another potential debate: Do folks have to ask a question when they already know the answer? Attorneys for Plaster and Stone County did not respond to requests for comment for this story. But court filings and previous cases suggest such hair-splitting definitions and the murky interaction of various state laws will factor heavily in arguments by both sides. How to measure a mile At the center of the coming conflict is a Missouri statute, separate from the revised "village law," that states that residents who wish to incorporate within two miles of an existing city must first ask to be annexed. If the request is rejected or otherwise answered "unfavorably," the residents may then attempt to incorporate — after waiting one full year. That length of time could provide Plaster's opponents the time they need to undo the recent changes and block incorporation of the village. Obviously, Plaster's attorney is being paid to not let that happen. In the latest petition for incorporation, attorney Mike Cully concedes that the proposed village is within a mile of Kimberling City by air. The petition argues, however, that the distance is closer to 10 miles when measured by road, freeing residents of the proposed village from needing to apply for annexation. Bill McCullah, the attorney for Stone County, has said in previous interviews with the News-Leader that the county will argue the distance should be measured in a straight line. "That's certainly the position we're going to take," McCullah said, acknowledging he had yet to find precedent in Missouri case law interpreting a mile one way or the other. He cited a Michigan case, however, saying a mile should be measured in a straight line unless defined otherwise by legislators. "It's an interesting case, with some unique issues outside of the way the law was changed," said Bill Hart, an attorney with Husch & Eppenberger in Springfield who is not involved with the lawsuit. "Whether it's 'as the crow flies' or 'as a man walks,' I don't think that's really been addressed." Plaster's assertion that the distance should be measured over land was accepted by Circuit Judge George Baldridge when Plaster previously sued for incorporation in 2004. That circuit court decision doesn't carry the precedent-setting weight of an appellate court decision, however. When the Missouri Court of Appeals Southern District later overturned Baldridge's decision — ruling in favor of Stone County — it did not address the issue of how a mile was to be measured. Nathan Nickolaus, chairman of the Missouri Bar Association's Local Government Law Committee, said the crow interpretation hews closest to existing case law. "The general rule is that the law is to be interpreted using plain and ordinary language — a mile is a mile, as the crow flies," said Nickolaus, who is city attorney for Jefferson City. "If the legislature intended another definition, they could have included that (in the statute." Asking for annexation Should the "crow flies" argument fall, Stone County's options likely are limited. If it flies, however, Plaster's attorney must overcome another hurdle — his clients' failure to petition Kimberling City for annexation. "They have to present a petition to the existing city to annex," McCullah said in an earlier interview, insisting the petition is invalid otherwise. Cully, Plaster's attorney, argues in documents filed in support of the petition that the requirement still would not apply. Even if the distance is measured in a straight line, he wrote, other laws prohibit Kimberling City from annexing land that is not "contiguous and compact" to its existing city limits. To annex Plaster's property, Kimberling City would either have to annex across the federally owned lake, which Cully argues would be illegal, or "work its way around the northerly arm of Table Rock Lake, come down the peninsula, down Highway DD to the area of the proposed village — a distance in excess of 10 miles ..." Nickolaus, the government law committee chair, said the argument that residents don't have to ask because they already know the answer doesn't hold water. "Incorporation is not a right. It's only allowed under certain circumstances, and there are some hoops you have to jump through," Nikolaus said. "They still have to follow the process, even if it appears to be a foregone conclusion." Nickolaus also said previous court cases have found that a "navigable body of water" is not necessarily a barrier to contiguous annexation. "That comes up a lot here in Jefferson City, because we have a river right through us." He was unsure, however, whether Table Rock Lake — a man-made body of water owned by the federal government — would meet that definition. The Kirbyville option Even if Plaster's current petition is defeated and the changes to state law reversed, the Lebanon developer's options might not be exhausted. Residents of Kirbyville, in neighboring Taney County, found another workaround when they incorporated their historic village six years ago. Kirbyville's elementary school, post office and a handful of businesses fell within the two-mile perimeter of nearby Hollister. Rather than ask to be annexed, residents incorporated an area of land just east of the Hollister perimeter. The newly minted village of Kirbyville then expanded rapidly west — reclaiming its former residents — through a series of voluntary annexations. Plaster theoretically could try something similar, incorporating an outlying portion of his property and later annexing the rest. Satellite images appear to show the homes of at least two petitioners lie outside Kimberling City's two-mile perimeter. The most recent version of the "village law" sets no minimum number of registered voters that must live in the area to be incorporated and notes that "the existence of churches, parks, schools, or commercial establishments in that area" is not necessary for a village's creation. Still, the issue is not exactly clear-cut. The revised law defines a village as "any small group or assemblage of houses in an unincorporated area ... or any small group or assemblage of houses or buildings built for dwelling or for business, or both." Whether one or two houses, separated by almost a mile, constitute a "group or assemblage" is likely — you guessed it — open to debate.
| The perfect example of the type of mess involved when a legislator intentionally tacks on an amendment, as secretly as possible, to benefit a single property owner. Jetton should be held to a recall vote and thrown out of office.
Posted by: russell on Mon Oct 29, 2007 10:23 am |
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| The perfect example of the type of mess involved when a legislator intentionally tacks on an amendment, as secretly as possible, to benefit a single property owner. Jetton should be held to a recall vote and thrown out of office.
Posted by: russell on Mon Oct 29, 2007 10:04 am |
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| It's a good thing there isn't a circular intersection in the road, Plaster would have been an infinite distance from the rest of the world.
There was a crooked man and he walked a crooked mile,
He found a crooked sixpence upon a crooked stile.
He bought a crooked cat, which caught a crooked mouse.
And they all lived together in a little crooked house
And Bobby's as crooked as they get.
Posted by: S COOK on Sun Oct 28, 2007 9:26 pm |
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| If the judge will simply follow the land surveying law that has always been in existence, he will rule that a mile is measured horizontally. All surveying measurements used by the highway department are horizontal. The one exception is measuring the quantity of concrete poured on the surface to determine the amount needed.
Posted by: jmos on Sun Oct 28, 2007 10:42 am |
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| Wouldn't it be nice to have a live TV show with Plaster in one side of a wrestling ring & Hammons on the other side?
Plaster (unfortunately) will get his way, thanks to the underhanded last minute addition of the "village" idea inserted into a bill the last legislative session. Unless those opposed to his village of table rock idea, tie this up long enough for the Missouri legislature to undo this the next session, he will probably find a judge somewhere that will agree with him.
Posted by: p51d007 on Sun Oct 28, 2007 8:21 am |
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