Land Use and the Law: Boards Should Not be Limited to Landowners
Local governments normally have many boards or commissions, for the most part comprised of appointed volunteers. For instance, a city with zoning must have a board of adjustment and a planning and zoning commission. A question local governments face, but may not give much thought to, is who can serve on these boards. Everyone should be aware that the members of certain racial, religious, or sexes cannot be forbidden from serving on government boards. But you should also be aware of another limitation: boards should not be limited to landowners.
May the members of a government board be required to be landowners? Or put the other way, can non-landowners be forbidden to serve on certain government boards? Several Missouri statutes and many local ordinances require the members of local governmental boards to be "freeholders" which is a term meaning landowner. See e.g., § 65.690, R.S.Mo. (board of adjustments for townships required to be freeholders).
Until a few years ago, no one gave a second thought to requiring members of a board to be landowners. But, beginning in the 1970s, a series of cases that reached the United States Supreme Court called into question the constitutionality of a requirement that governments appoint only landowners to its boards or commissions. In those cases, the plaintiffs argued that is unconstitutional to require government board members to be landowners, a violation of the United States Constitution's Fourteenth Amendment's Equal Protection Clause. As in most areas of constitutional law there is no absolute rule. However, the United States Supreme Court declared a series of governmental boards and their actions unconstitutional and void. In 1970, the Supreme Court ruled that local school boards could not have their membership restricted to landowners. Turner v. Fouche, 396 U.S. 346 (1970). In 1977, the Supreme Court ruled that membership on a local airport board could not be restricted to landowners. Chappell v. Greater Baton Rouge Airport District, 431 U.S. 159 (1977). The Supreme Court stated that, in normal circumstances, there was no justification for discriminating against non-landowners.
Examples of this doctrine have already been applied to Missouri institutions. In 1989, the United States Supreme Court declared the "Board of Freeholders", a government body established by the Missouri Constitution to modify the government of St. Louis City or St. Louis County, void because the board's membership was restricted to freeholders. Quinn v. Millsap. 491 U.S. 95 (1989), The Supreme Court declared there was no valid justification for allowing only landowners to have a say in reforming government.
In 1991, the Missouri Court of Appeals, considered applying the Supreme Court decisions to the local Missouri institution of boards of adjustment. Missouri statutes commonly require members of boards of adjustment to be freeholders. The Missouri Court of Appeals reversed the trial court's dismissal of the case and remanded the case back to the trial court. State ex rel. Koewin_g v. Franklin County, 809 S.W.2d 874 (Mo. App. 1991).
With the threat of legal challenge to freeholder requirements and to the decisions of a governmental body restricted to freeholders, it is no longer wise to require members of a government board to be landowners. Of course, where a federal or state statute requires that a local board be comprised of freeholders, local governments have little choice. But, if Missouri statutes are silent, the local government should not create a problem by independently imposing a freeholder requirement upon members of boards of commissions. Not only could the local government body be declared illegal and its decisions void, but the local municipality could be required to pay its opponent's legal fees.
Both Rob Schultz and Mary B. Schultz are partners in the law firm of Schultz &Associates LLP, www.sl-lawyers.com , 640 Cepi Dr., Suite A, Chesterfield (St. Louis), Missouri 63005, (636) 537-4645. Rob Schultz and Mary B. Schultz graduated from Northwestern University Law School more than 30 years ago, in 1985, and have been practicing primarily in Missouri ever since. Schultz & Associates LLP is an affiliate member of the Municipal League of Metropolitan St. Louis.
This column is intended to provide general information only. It does not constitute, nor should be relied upon, as legal advice or a legal opinion relating to specific facts or circumstances.
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