concurring.
I concur in reversing the judgment of the trial court. I write separately because I believe there is an additional reason to reverse the judgment. Tyson’s defense at trial was that the material deposited on his property was “clean fill.” He was entitled to use clean fill in his own yard (pursuant to section 260.210.10(1)) unless prohibited by local ordinance. He argued that there was no local prohibition against the use of clean fill in his own yard for fill purposes so that he could install a swimming pool. He argues that the trial court erred in precluding him from asserting this defense.
“Clean fill,” as defined by section 260.200(4) is “uncontaminated soil, rock, sand, gravel, concrete, asphaltic concrete, cinder blocks, brick, minimal amounts of wood and metal, and inert solids as approved by rule or policy of the department for fill, reclamation or other beneficial use.” The same definition is provided in ordinance number 62-121. According to section 260.210.10(1), a person “engaged in an activity that produces clean fill may use such material for fill, reclamation or other beneficial purposes on his or her own property or on the property of another person with the permission of the owner of such property, provided that such use does not violate any state law or local ordinance or order.”
The City says Tyson would have needed a conditional use permit to dump clean fill on his property for fill purposes. The *930City, however, fails to show the existence of an ordinance specifically limiting or prohibiting the use of clean fill in the City of Kansas City as authorized by section 260.210.10(1) of the state statutes. The City apparently believes such permit is required for clean fill on the assumption that clean fill is included within the definition of “used building material.” However, the definition of “used building material” does not specifically refer to “clean fill” or make any reference to the state statute permitting “clean fill” use for certain purposes. I also agree with the majority that the definition of “used building material” does not include clean fill unless such clean fill has come from demolition of buildings.
Tyson wished to testify that he was attempting to use clean fill for the purpose of installing a swimming pool on his property. Through his business activities he generated the material he wished to deposit on his own property. The pictures and the testimony show that the material that he deposited was clean soil with chunks of asphalt or concrete. There is no evidence of any wood or metal or trash or any other form of debris. The pictures and the testimony, in short, were entirely consistent with his defense.
Without any showing by the City that the use of clean fill on one’s own property was regulated by ordinance, Tyson should have been permitted to raise his proposed state-law defense to the “demolition landfill” charge. He should have been permitted to submit that defense pursuant to section 260.210.10(1). Because there was no evidence by the prosecution that the material deposited on his property was anything other than clean fill, and the pictures and testimony showed nothing other than clean fill, and because there was no evidence that Tyson was using the material for anything other than beneficial fill purposes on his property, Tyson was entitled to a judgment of acquittal at the close of the prosecution’s case. I agree that the judgment must be reversed.