Citizens Question Legality of Medill Crossing Closure
By Mike Scott
A group of citizens concerned with the Clark County Commissioners’ decision to close County Rd 153 at the BNSF railroad crossing in Medill are questioning the legality of the closure. On September 1, the Clark County Commissioners gave third reading to an ordinance closing the BNSF Railroad crossing at Medill. In exchange, the BNSF Railroad agreed to pay the county $100,000 to permanently close the crossing.
The group of citizens are claiming the commissioners failed to follow the state requirements for closure of a road as outlined in the Revised Statutes of Missouri, Section 228.110, which reads:
“1. Any twelve residents of the township or townships through which a road runs may make application for the vacation of any such road or part of the same as useless, and the repairing of the same an unreasonable burden upon the district or districts. The petition shall be publicly read on the first day of the term at which it is presented, and the matter continued without further proceedings until the next term.
2. Notice of the filing of such petition and of the road sought to be vacated shall be posted up in not less than three public places in such township or townships, at least twenty days before the first day of the next term of the commission, and a copy of the same shall be personally served on all the persons residing in the district whose lands are crossed or touched by the road proposed to be vacated in the same manner as other notices are required to be served by law; and at the next regular term the same shall again be publicly read on the first day thereof.
3. If no remonstrance is made thereto in writing, signed by at least twelve residents of the township, the commission may proceed to vacate such road, or any part thereof, at the cost of the petitioners; but if a remonstrance thereto in writing, signed by at least twelve residents of such township or townships, is filed, and the commission after considering the same shall decide that it is just to vacate such road, or any part thereof, against the vacation of which the remonstrance was filed, the costs shall be paid by the parties remonstrating, and the original costs, and damages for opening such vacated road shall be paid by the petitioners to those who paid the same, except that if five years have elapsed since the original opening of the same no such reimbursement shall be made.
4. Notwithstanding any other provision of this section to the contrary, in any county with a charter form of government, any twenty-five residents of the county through which a road subject to this section runs and who reside on any portion of such road or on another road that intersects such road and within one mile of the right-of-way to be vacated, may apply for the vacation of such road or part of such road as no longer serving the public health, safety, and welfare. The county may, by order or ordinance, provide for notice and hearing of such petitions and for filing and hearing remonstrances against them.”
A 1983 Attorney General’s opinion issued by John Ashcroft regarding a question in Oregon County further outlines the road closing procedure, and cites court precedents. In reads, in part:
Section 228.110, RSMo 1978, provides five distinct procedural steps that must be complied with before an order vacating a public road can be granted by the county court. Briefly stated these steps are: (1) twelve freeholders from the township must petition for the vacation of the road; (2) such petition shall be publicly read on the first day of the term of court at which the petition is to be presented and the matter continued to the next term; (3) notice of filing of the petition must be posted in three public places at least twenty days before the next term of court; (4) personal service of a copy of the petition must be made on all persons whose land crosses or touches the road proposed to be vacated; and (5) the petition shall again be publicly read on the first day of the term at which time the matter is to be heard. The statute provides an opportunity for other freeholders to be heard on the question of vacation.
Section 228.110.1, RSMo 1978, authorizes the county court to vacate a public road or part of a public road only if it is “useless, and the repairing of the same is an unreasonable burden upon the district or districts . . …” See, Ross v. Conco Quarry, Inc., 543 S.W.2d 568, 576 (Mo. App. 1976); Burrows v. County court of Carter County, 308 S.W.2d 299, 304-305 (Mo. App. 1957).
In view of the foregoing, we believe a county court must strictly comply with the procedures of Section 228.110, RSMo 1978, to vacate a county public road which has not been found to be abandoned. In sum, a county court must follow the statutory procedures, and make the requisite finding of fact, prior to vacating a public road. State v. Faith, 180 Mo. App. 484, 490-491, 166 S.W. 649, 651 (1914).
“We are shocked that you would close the crossing with just 12 signatures on a petition and three commission meetings without a lot of public input,” Susan Carroll told Commissioners Paul Allen and Jerry Neyens at a meeting Tuesday afternoon, December 8. Western District Commissioner Roger Sedore was absent from the meeting. “Why didn’t you come to us and ask what we thought. A lot of people in Medill didn’t know anything about it until the barricades went up,” Carroll said.
A notice of the petition’s filing was posted in three locations in Lincoln Township as required. Those location were the Clark County Courthouse, the Clark County Sheriff’s Office, and at Clark County Pharmacy.
Carroll question Paul Allen how he went about selecting who to ask to sign the petition. Allen stated that he chose who to approach, and did not try to approach everyone in Medill to sign the petition.
“The state outlines the procedure,” Clark County Prosecuting Attorney Scott Summers told the group. Twelve signatures are required for the commissioners to consider the petition.
Allen added that the crossing is “totally unnecessary because you have a viaduct less that a football field length away.”
The next question Carroll asked was what burden the county pays for concerning the crossing? RSMo Section 228.110.1 states petitioners can “make application for the vacation of any such road or part of the same as useless, and the repairing of the same an unreasonable burden upon the district or districts”.
“The railroad has the responsibility for maintaining the crossing,” Allen said.
“So there is no burden to the county,” responded Carroll.
The July 7, 2009 minutes of the commissioners’ meeting stated the road “ is unsafe and dangerous…”.
“Did you get any report which says its dangerous? How many accidents have there been in Medill? When was the last accident at that crossing,” Carroll asked. “Basically, the two reasons for closing the road are just crazy, because there’s nothing to stand on.”
Debbie Malone question whether the commission had followed RSMo 228.110’s requirement that the three readings of the proposed road closing ordinance a had to be spread over three terms of the commission, stating that a term is three months.
Susan Carroll also pointed out that the statute requires “all the persons residing in the district whose lands are crossed or touched by the road proposed to be vacated in the same manner as other notices are required to be served by law”.
“We were not served,” Carroll said.
Addressing safety concerns, Carroll said, “It’s unbelieveable that you would say its safer to close the crossing.”
Many area farmers utilize that crossing to keep their farm equipment off the viaduct and Highway 136. The closure forces that equipment back onto the highway.
“You have trucks going seventy miles an hour going over that viaduct, and they’re going to come over the top and be right behind farm machinery,” area farmer and former commission candidate Steve Krueger said..
Susan Carroll also asked about the county’s policy for selling property .
“Shouldn’t this property have been up for public bid if you were selling it?” she asked.
“The railroad is going to close 200 crossings per year until 2015,” said Commissioner Jerry Neyens. “They can do that at their discretion. I think it was to the benefit of the county to take advantage of the opportunity.”
The group argued that the railroad didn’t have the sole right to close the crossing. “Otherwise, they wouldn’t give you dime,” said Debbie Malone.
“Why would they pay $100,000 if they could have closed it without the commissioners?” asked Steve Krueger.
The group previously presented a petition to re-open the crossing, but no action has been taken on that petition.
“Our laws are here to protect us,” said Arney Carroll, also a former commissioner candidate.
“I shouldn’t have to hire a lawyer to fight this. From what I can see, you guys have done us wrong.”
The group is considering filing a lawsuit to attempt to overturn the closing decision.
“Why do we have to sue our own commissioners to follow the statutes?” asked Debbie Malone.
“We followed the book, and it was our intent toe close the road correctly,” said Jerry Neyens.
“I believe that we’ve done it correctly,” added Scott Summers. “We’ve tried to do it according to the statutes the state sets forth.”