Dennis Norman
Appeals Court Strikes Down Bellefontaine’s Ordinance Affecting Real Estate For Sale Signs
At the end of January the Missouri Court of Appeals-Eastern District handed down a decision on a case that I think is a significant victory for St. Louis property owners and strikes down part of an ordinance that violates our property rights as well as our First Amendment Rights to free speech.
The case involves Mark Scatizzi, a local REALTOR® who, after listing a home for sale at 1027 Addision, in the City of Bellefontaine Neighbors, advertised the property for sale and posted a “for sale” sign in the window of the property, all without first applying for an inspection of the home by Bellefontaine Neighbors. The City then charged Scatizzi by information in municipal court with two ordinance violations, the first being failure to have the property inspected and obtain a certificate of compliance from the City prior to marketing theproperty for sale, and the second being for displaying a “for-sale” sign in the window, again without obtaining the inspection first. Ultimately one charge was dismissed and the lower court ruled in favor of the City on the remaining one and fined Scattizi $100. Scattizi appealed the decision and the Appellant Court just reversed the lower courts ruling.
What Mark Scatizzi had faced with the City of Bellefontaine was something that many of us St Louis REALTORS® have to deal with daily; local ordinances that are passed that either affect owner’s property rights, impede an owner’s ability to sell a property or in some cases discourage ownership of rental property. In the case of Bellefontaine Neighbors, the city has in their property maintenance code the following requirement:
(a) It shall be unlawful for the owner or lessor of any property subject to the provisions of this code, or their agent, to advertise in any way, or to list with a real estate agent or other broker, such property for the purpose of selling, leasing, renting or otherwise transferring its ownership or possession, without first applying for the issuance of a Certificate of Compliance by the code official.
In his appeal Scatizzi stated that he felt this ordinance was unconstitutional and limited his right to free speech, below is an excerpt from the decision with the comments on this claim by Judge Clifford Ahrens who wrote the opinion of the appellant court:
In his first point, Defendant asserts that the trial court erred in enforcing section 112.4(a) of ordinance 2057 because it violates his right to free speech, his right to contract, and his right against unreasonable search and seizure.
3 Regarding speech, Defendant contends specifically that, by prohibiting an owner or agent from advertising property without first applying for a certificate of compliance, section 112.4(a) places an unconstitutional restriction on commercial speech. We agree.
Scatizzi also claimed that the Bellefontaine ordinance violation a Missouri State Law (67.317 RSMo) that was passed back in 1984 that states “No political subdivision of this state shall enact or enforce any ordinance which forbids or restricts the right of any owner of an interest in real property or his agent from displaying on the property a sign of reasonable dimensions, as may be determined by local ordinance, advertising:”.
The appellant court agreed with Scatizzi on this point as well addressing as follows:
In his second point, Defendant asserts that the trial court erred in not finding that section 112.4(a) of ordinance 2057 violates section 67.317 RSMo, which prohibits municipalities from restricting the right of homeowners and their agents to erect signs advertising real property for sale except as to sign size….
Superimposing the plain language of section 112.4(a) of ordinance 2057 over that of section 67.317 RSMo compels the conclusion that the ordinance violates the statute. The Supreme Court of Missouri reached such a conclusion under similar facts in City of Dellwood v. Twyford, 912 S.W.2d 58 (Mo. 1995). There, the city’s ordinance required owners to submit an application and pay a fee before advertising real property for sale. Noting that section 67.317 does not authorize cities to impose any restrictions other than reasonable dimension restrictions, the Court held the ordinance invalid. Id. at 60. Likewise here, section 112.4(a) of ordinance 2057 purports to impose a restriction that section 67.317 expressly prohibits. As such, we hold it invalid. Point granted.
And finally the conclusion of the appellant court decision was:
The judgment of the trial court is reversed.
I assumed that this decision by the appellant court would cause the City of Bellefontaine Neighbors to stop enforcing the part of their ordinance deemed unconstitutional and in violation of State Law by the appellant court, but it appears my assumption may be wrong, at least for now. I say this because I just called Bellefontaine to confirm they were not enforcing these parts of the ordinance and after speaking with Karen in the building department it appears the city is still enforcing the ordinance, in spite of the appellant court decision.
I asked Karen if I was a homeowner and called city hall saying that I wanted to put my home on the market and was it OK to advertise it and put up a for-sale sign what I would be told and she told me that I would be told that I need to come in and fill out a building inspection application, pay the fee, and then after the initial building inspection I could then advertise my home for sale and put up a sign. Hmm…not sure what they are thinking…..
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