Buescher asks Mo. Supreme Court to review Jefferson City properties case

This photo shown a property owned by Barbara Buescher at 108 Jackson St.
This photo shown a property owned by Barbara Buescher at 108 Jackson St.

Barbara Buescher wants the Missouri Supreme Court to do what two lower courts have not - tell Jefferson City's government it doesn't have the power to mitigate hazards on her property, then send her a bill for the work.

Audrey Smollen, Buescher's attorney, asked the high court Wednesday to hear the case, after the Cole County Circuit Court last year and the state appeals court in Kansas City in May upheld the city's $24,785 bill for abating problems on some of Buescher's properties.

That abatement included cutting weeds, vines and brush and installing plywood over doors and windows of vacant buildings Buescher owns, primarily along and near East Capitol Avenue.

Smollen contends - as she did in previous courts - Jefferson City doesn't have the specific authority to do that work without first having a hearing.

She told the Supreme Court, "This case should be reviewed to decide whether (Jefferson City), by virtue of it being a constitutional charter city, may board up windows and doors on vacant buildings where the only statutory provision authorizing abatement on vacant buildings only applies to Kansas City."

In its May 2 ruling, a three-judge panel of the Western District appeals court determined Jefferson City had the authority because the state Constitution gives all charter cities "all powers which the general assembly has authority to confer upon any city" and the city saw its actions as "the same as repair and maintenance."

However, Smollen countered, "No (city) charter provision or ordinance specifically provides for such boarding up at all."

Smollen's application for a Supreme Court hearing offers separate arguments for the city's actions to install plywood over doors and windows and for its actions dealing with weeds, bushes and trees.

However, in both cases, she argued, the city's claim its authority is covered by state laws "frustrates the intent of the Legislature," because Jefferson City doesn't meet the criteria spelled out in those laws.

"This Court should take the case to decide if the city is required to have an automatic hearing on weed and trash ordinance violations according to (a state law) and not under MAPA (Missouri's Administrative Procedures Act) provisions," Smollen wrote.

Smollen also has argued Jefferson City had no authority to impose fees for its abatement work because the city's voters never approved those fees.

She noted the Western District didn't issue an opinion on that argument, finding instead she had not proven the city never held an election.

However, she told the Supreme Court, that information was in her legal file.

When asking the city for records of any such election, Smollen told the high court, the city said it "has no such documents in its possession or control."

Since state law requires all election results "to be certified and in the records of the political subdivision within whose jurisdiction the election was held," Smollen argued, "failure to have such certified results indicates no vote was taken, and (Buescher) met her burden of proving no election was held - the primary argument that the ordinance allowing recovery of costs by special tax bill was invalid."

The Supreme Court's online docket sheet shows it has received Smollen's documents - but has not yet set a briefing or hearing schedule.

Receiving the documents and opening a case file doesn't mean the court ultimately will decide to hear the case.

Missouri's three appeals court divisions must accept every case filed with them, but the state Supreme Court has the authority to accept or reject an application like Buescher's.