Spradlin v. City of Fulton

PRICE, Judge,

dissenting.

I respectfully dissent from the majority opinion. I would hold that article III, § 38(c) of the Missouri Constitution and the Neighborhood Improvement District Act (“Act”) require the improvement of a neighborhood to justify public indebtedness thereunder. Unfortunately, the majority reads the most important word, “neighborhood”, out of the amendment and the Act.

In 1990 a constitutional amendment was submitted to the voters of Missouri. The amendment authorized public indebtedness to fund “neighborhood improvement districts”. As was stated in an article prior to the adoption of the amendment, “One of the most serious problems confronting cities and counties in Missouri is the financing of local improvements such as streets, curbs, sidewalks and sewers that benefit a relatively small area and should be paid for by the property benefited and not by the taxpayers at large.” Jerry T. Powell, Proposed Constitutional Amendment — Neighborhood Improvement Districts, Missouri Municipal Review, July 1990 at 4, 4.

Although the term “neighborhood improvement district” appears in the title and twice thereafter in the text of article III, § 38(c), it is not defined in the amendment. In construing the constitution, we are obliged to interpret the words used as the average voter would on election day. Zahner v. City of Perryville, 813 S.W.2d 855, 858 (Mo. banc 1991); Keller v. Marion County Ambulance Dist., 820 S.W.2d 301, 302 (Mo. banc 1991). There is no doubt that the average voter is familiar with and understands the terms “neighborhood” and “improvement.”

A neighborhood is commonly understood as an area where people live or work, that has a character separating it from other areas. This is certainly how dictionaries define the word. Webster’s Third New International Dictionary 1514 (1981) defines “neighborhood” as:

1: friendly association with another that is a neighbor: the agreeable easy relationship usual among congenial neighbors ... 2: the quality or state of being immediately adjacent or relatively near to something: PROXIMITY ... 3a: the approximate *267area or point of the location or position of something ... b: the approximate amount or extent or degree — usu[ally] used with in and a qualifying phrase ... 4a: a number of people forming a loosely cohesive community within a larger unit (as a city, town) and living close or fairly close together in more or less familiar association with each other within a relatively small section or district of usu[ally] somewhat indefinite boundaries and usu[ally] having some common or fairly common identifying feature (as approximate equality of economic condition, similar social status, similar national origins or religion, similar interests) and usu[ally] some degree of self-sufficiency as a group (as through local schools, churches, libraries, business establishments, cultural and recreational facilities) ... b: the particular section or district that is lived in by these people and that is marked by individual features (as type of homes and public establishments) that together establish a distinctive appearance and atmosphere ... c: an area or region of usu[ally] vague limits that is usu[ally] marked by some fairly distinctive feature of the inhabitants or terrain ...

Other definitions of “neighborhood” include the following:

1. Neighbourly feeling or conduct. 2. Nearness, vicinity of ... 3. Neighbours, people of a district; district, especially] one forming a community within a town or city. The Concise Oxford Dictionary 730 (6th ed. 1976).
neighborhood, noun
area and the people who live in it; this is a quiet neighborhood; the mailman knows everyone in the neighborhood.
Beginner’s Dictionary of American English Usage 152 (1986).
1. A district considered in regard to its inhabitants or distinctive characteristics: a fashionable neighborhood. 2. The people who live in a particular vicinity: The noise disturbed the entire neighborhood. 3. Informal. Approximate amount or range: in the neighborhood often million dollars. The American Heritage Dictionary of the English Language 879-880 (1978).

See also Webster’s New Universal Unabridged Dictionary 957 (1994); The American Heritage Dictionary 836 (2d college ed. 1991); Webster’s Ninth New Collegiate Dictionary 792 (1983); The Random House Dictionary of the English Language 957 (1967).

The above definitions use the terms “inhabitants”, “people of a district”, or “people forming a loosely cohesive community”, all indicating the need for people to comprise a neighborhood. In fact, how can there be a neighborhood without neighbors, “one whose house or other place of residence immediately adjoins or is relatively near that of another.” Webster’s Third New International Dictionary 1514 (1981). Certainly the ballot title for this constitutional amendment indicated that “residents” would be included in any neighborhood improvement district that would be formed:

Authorizes legislature to enact legislation to establish neighborhood improvement districts whereby residents of the district may, by vote, incur indebtedness to pay for public improvements therein. Vote requirements are specified, and allowable indebtedness is limited. Enabling legislation and voter approval would be required before this amendment could have any fiscal impact. 1990 Mo.Laws 1167 (emphasis added).1

We do not need to explore the concept of a “neighborhood” in any more detail to know that the area to be benefited from the proposed bonds in this case is obviously not a “neighborhood” in the ordinary sense that the word is used. Nor would any passerby use “neighborhood” to describe the property. The 187.87 acre district was a farm, previously not even within the city limits. Callaway County Golf Partners (“CCGP”), a private development entity, purchased approximately 268 acres of land outside the city limits which was annexed by the city. CCGP then peti*268tioned the city to create a neighborhood improvement district with 187.87 of those acres to create a golf course. As far as the record reveals, no one currently resides on this acreage. People do not live or work there as a community. Even when it is developed it will only be a golf course. Although the developer plans to build 117 homes near the golf course, the district does not include the land upon which the residences are to be constructed.2 While as a golf course the property might benefit the nearby proposed neighborhood, it is not a neighborhood in and of itself.

The need for an existing neighborhood is reinforced by the use of the word “improvement” in article III, section 38(c). Improvement means “enhanced value or excellence”, “betterment”, or “a permanent addition to or betterment of real property.” Webster’s Third New International Dictionary 1138 (1981); see also § 67453(4), (5), RSMo 1994. The idea of improvement contains within it a temporal sense of a condition before and a condition after. Something must exist in a prior condition before it can be improved. While it is contemplated that a farm will be transformed and a new golf course created, no specific area of the city that could have been considered theretofore as a neighborhood is being bettered, added to, enhanced, or improved. “Improvement” as used in article III, section 38(c), immediately follows the word “neighborhood”. There must first be a neighborhood before the neighborhood can be improved.

The majority attempts to finesse the absence of a neighborhood by relying upon the admittedly vague definition of “neighborhood improvement district” supplied in the Neighborhood Improvement District Act, which reads:

(6) “Neighborhood improvement district”, an area of a city or county with defined limits and boundaries which is created by vote or by petition under sections 67.453 to 67.475 and which is benefited by an improvement and subject to special assessments against the real property therein for the cost of the improvement. § 67.453(6)

Because the legislature’s definitional language does not include a requirement of anything other than “an area of a city or county within defined limits and boundaries ... which is benefitted by an improvement”, the majority does not believe any of the other characteristics normally associated with the word “neighborhood” are necessary. The majority relies upon the traditional arguments that statutes are presumed constitutional and that a constitutional rather than an unconstitutional reading of a statute must be adopted to support its position.

While both of these principles are valid, they simply do not apply here. In fact, the majority stands the law on its head by reading a clear and direct constitutional provision to conform, to a vague and indefinite statute. Instead, the law requires that the statute must be read to conform to the constitution. Beatty v. State Tax Com’n, 912 S.W.2d 492, 495 (Mo. banc 1995); Bennett v. Owens-Corning Fiberglas Corp., 896 S.W.2d 464, 467 (Mo. banc 1995). “Where possible, courts are to interpret statutes so that they, are in harmony with the constitution.” Bennett, 896 S.W.2d at 467. In short, the majority reads the definitional language of § 67.453(6) in such a way that renders the word “neighborhood” in article III, section 38(c) of the constitution meaningless. This is improper under any principle of constitutional law as statutory construction.

The legislature cannot define a “neighborhood improvement district” without giving effect to the words “neighborhood” and “improvement.” To read § 67.453(6) consistent with its constitutional authorization, we must require that a “neighborhood improvement district” be any “area of a city or county” that actually comprises a neighborhood. While the statutory definition may allow the local government great flexibility in defining the boundaries of a neighborhood, a neighborhood, nonetheless, must exist to be enhanced or improved. School districts must have schools. Neighborhood improvement districts must have neighborhoods. Had the drafters of the amendment intended otherwise, different language should have been *269submitted to the voters, without the key word “neighborhood.”3 The “area” now designated as a neighborhood improvement district is not, nor will it ever be, a neighborhood as the term is commonly used and as the voters would have understood it in 1990.

While the majority attempts to resolve the broader issue of when an election is required in connection with tax levies and neighborhood improvement bonds, we are not allowed to favor one constitutional requirement over another. The constitutional requirement that a neighborhood be improved as a condition to the issuance of a neighborhood improvement district bond should not be sacrificed to that end. The actual neighborhoods of our state, particularly in our larger urban areas, cannot afford to have this new funding resource diverted to newly created centerpieces of private residential developments.4

For this reason, I would affirm the judgment of the trial court and enjoin the city from issuing these bonds.

. Voters who read the ballot title and voted for the amendment would be amused to learn that a single family dwelling or a vacant lot could be declared a “neighborhood.” Moreover, those voters would be shocked to learn that a single family dwelling "neighborhood” could be “improved” by being bulldozed to the ground in favor of some totally different use. Nevertheless, that is what the principal opinion suggests was intended.

. The record does not establish why the private developers do not bear the cost of the course.

. For example, the New York legislature has enacted a similar provision creating “business improvement districts.” N.Y. General Municipal Law § 980-980p (McKinney Supp.1996). The terms "special improvement district", “special benefit district” or “local improvement district” are also commonly used. Colo.Rev.Stat. § 31-25-501 to 541 (1986 & Supp.1995) (Part 5 is entitled “Special Improvement Districts in Municipalities”); R.B. Fickel, II, Management and Mismanagement of Municipal Special Improvement Districts, 22 Colorado Lawyer 2263 (1993); Jerry T. Powell, Proposed Constitutional Amendment — Neighborhood Improvement Districts, Missouri Municipal Review, July 1990, at 4, 5.

. Of course, an existing neighborhood could use the Neighborhood Improvement District Act to fund the acquisition of a golf course if the neighborhood so voted or the city could vote to fund such a project by general obligation bonds. Interestingly, the voters of Fulton rejected the creation of this golf course in 1993 when presented to them in the form of a general obligation bond.