Freedom Center Appeals Dismissal of Turf Grass Mandate Lawsuit
On April 22, 2015, Judge Pelikan of the St. Charles County Circuit Court ignored decades’ worth of precedent to dismiss Carl and Janice Duffner’s challenge to a city ordinance that compels homeowners to devote at least half of their property to the cultivation of “turf grass.” On April 23, 2015, the Duffners filed their appeal to the Eastern District of the Missouri Court of Appeals.
Judge Pelikan’s ruling defies easy explanation. Missouri courts have ruled again and again that citizens are permitted to challenge the validity of cities’ zoning ordinances, even if the citizen initially sought a variance that would exempt their property from the operation of the ordinance. Missouri courts have also repeatedly held that a citizen cannot challenge the validity of a city’s zoning ordinance by appealing a board of adjustment’s ruling on a variance request. The Duffners have no interest in challenging the board of adjustment’s decision, and they made this clear in their Petition. They instead sued the city, asserting three constitutional reasons and one statutory reason why the Turf Grass Mandate is invalid.
Judge Pelikan somehow came to the conclusion that the Duffners are not really challenging the validity of the Turf Grass Mandate, but rather they are contesting the Board of Adjustment’s decision regarding the variance they had requested. The only way he could have reached this decision is to flatly disregard the Duffner’s repeated, direct statements to the contrary, such as the part of their Petition where they said: “The Duffners are not appealing or otherwise contesting the… decision to grant a variance; if the Turf Grass Mandate is constitutional, the City is authorized to grant variances.”
The judge’s order further stated that the Duffners could only challenge the validity of the Turf Grass Mandate if they appealed the St. Peters Board of Adjustment’s decision to partially grant the variance they had requested. But sixty years’ worth of cases have firmly established that the appeals process Judge Pelikan insisted upon “is unavailable when the aggrieved party is challenging the validity of an ordinance.” A pair of cases from 2002 and 2003 explicitly state that a circuit court can only rule on the validity of a city ordinance if the court does not also consider the kind of appeal that Judge Pelikan said the Duffners were required to pursue. The Duffners cited both of these cases – Judge Pelikan simply ignored them.
“We have every confidence that the court of appeals will reverse Judge Pelikan’s ruling,” stated Dave Roland, the director of litigation for the Freedom Center of Missouri and the Duffners’ attorney. “This temporary detour to the court of appeals will not prevent us from successfully defending the Duffners’ constitutional freedoms.”