State ex rel. Askew v. Kopp, 47463

• Decision Date: 11 January 1960
• Docket Number: No. 47463,No. 1,47463,1
• Citation: 330 S.W.2d 882
• Parties: STATE of Missouri at the relation of Mrs. Marion E. ASKEW, Mrs. F. E. Badger and Henry N. Ess, and Norman C. Stephenson, Plaintiffs-Appellants, v. John J. KOPP, Hunter Phillips and Floyd L. Snyder, Sr., as members of and constituting the Board of Zoing Adjustment of Jackson County, Missouri, Defendants-Respondents, and City of Raytown, a fourth class city, Intervenor-Respondent, William L. Sublette and Cora A. Sublette, Intervenor-Appellants
• Court: Missouri Supreme Court

Page 882

330 S.W.2d 882

STATE of Missouri at the relation of Mrs. Marion E. ASKEW Mrs. F. E. Badger and Henry N. Ess, and Norman C Stephenson, Plaintiffs-Appellants, v. John J. KOPP, Hunter Phillips and Floyd L. Snyder, Sr., as members of and constituting the Board of Zoing Adjustment of Jackson County, Missouri Defendants-Respondents and City of Raytown, a fourth class city, Intervenor-Respondent, William L. Sublette and Cora A. Sublette, Intervenor-Appellants.

No. 47463.

Supreme Court of Missouri, Division No. 1.

Jan. 11, 1960.

Henry N. Ess, Robert I. Donnellan, John R. Moberly, Kansas City, for appellants, Watson, Ess, Marshall & Enggas, Kansas City, of counsel.

James E. Campbell, Donald B. Clark, Keith Martin, Kansas City, J. Holmes Greene, Raytown, for City of Raytown.

William J. Gilwee, Kansas City, for Board of Zoning Adjustment.

William K. Poindexter, Kansas City, for appellant-intervenors.

HOUSER, Commissioner.

This is an appeal from a judgment of the Circuit Court of Jackson County in a proceeding in certiorari to review the action and decision of the board of adjustment of that county approving the application of the City of Raytown for authorization to use certain land in the unincorporated area of the county for a sewage disposal plant. Appellants Askew, et al. are protesting adjoining landowners. Appellants Sublette, protesting landowners whose lands lie upstream from the proposed sewer lagoon site, were permitted to intervene by order of the circuit court. Respondents are the City of Raytown and the members of the board of adjustment.

The City of Raytown is a city of the fourth class located in Jackson County. Its board of aldermen decided to build a sewage treatment plant consisting of two large sewage lagoons or oxidation basins, some 2 1/2 miles from the city limits, on three tracts totalling approximately 300 acres located one-half mile east of Noland Road, southeast of Conway Road, in a district (D) zoned as an agricultural district under the Zoning Order of Jackson County. The city entered into option contracts to buy the land needed. On March 13, 1958 the City of Raytown filed with the board of adjustment an application for authorization to use approximately 173 acres of land for a sewage disposal plant. An amended application, which embraced the larger 300-acre tract, was filed with the board of adjustment on March 25, 1958. On April 3, 1958 the Jackson County Planning Commission conducted a public hearing and recommended to the board of adjustment that the authorization be granted. On April 9, 1958 the board of adjustment conducted a public hearing which resulted in the entry of an order granting the authorization requested. Acting under V.A.M.S. Sec. 64.120, subd. 3, Mrs. Marion E. Askew, et al. filed this petition for a writ of certiorari to review the data and records acted upon. The circuit court appointed a referee to take additional evidence. On final hearing the circuit court affirmed the order of the board of adjustment. This appeal followed.

The Zoning Order of Jackson County as amended by Amendment No. 42, adopted on October 17, 1955, distributed sewage disposal plants in Districts A to H, inclusive, including District D, 'When authorized by order of the Board of Zoning Adjustment, after public hearing, provided that in their judgment such use will not seriously injure the appropriate use of neighboring property, and will conform to the general intent and purpose of this Order, and further subject to such regulations and conditions as may be imposed by said Board,' and the following requirements:

'(1) A plan showing the area in which the sewer system is to be constructed, the size of the laterals, the size and location of the disposal plant, type of disposal plant and the natural water shed of the area shall be filed with the County Planning Commission.

'(2) Such plan shall be approved by the Missouri State Board of Health and the County Sewer Engineer prior to the filing of same with the County Planning Commission.

'(3) Such plan shall be examined by the County Planning Commission and the approval or disapproval of such plan shall be made by the County Planning Commission to the Board of Zoning Adjustment for final approval or disapproval.'

The city's evidence: At the time of the hearing Raytown was a city of 14,000-15,000 population. A population increase to 18,000 was expected by the time the sewage lagoons were to be completed. Sufficient land was to be acquired to take care of the sewage needs of a population of 42,000. Raytown, the largest city in the state without sewers, had one conventional, mechanical-type sewage disposal plant serving a part of the city but no city-wide, modern sewage system. Most of the city was served by septic tanks. There was a dangerous, unsanitary condition existing in various parts of the city. Eighty per cent of the city sewage was out on top of the ground. The city was confronted with potential epidemics. The city's consulting engineer testified that the area selected by the city for the sewage lagoon was the only site at which the needed area of lowlying ground could be found. Two sewage lagoons, surrounded by embankments or dikes ranging in height from 4 to 13 feet, were proposed for the present. The city's engineer testified that the sewage lagoons as designed should not produce odors. The nearest residence is 1,040 feet from the proposed lagoons. The nearest lagoon would be located approximately 300 feet from the farm of appellant Henry N. Ess. With the highest water the lagoon dam will be three feet above the water level. Raw sewage would never spill out of the lagoon. There is no way, based on the elevations, that the lagoon could cause more flood on plaintiffs' farms than had occurred in the past. The embankments or dikes would not constitute a 'plug' or a flood hazard by backing up the overflow waters of the Little Blue River. The plans had been approved by the State Board of Health and the County Sewer Department. The engineering on the lagoon conformed to the standards of the United States Public Health Service. The city's engineer testified as to the manner in which the lagoons were expected to treat the sewage so as to render harmless when the effluent is dumped into the Little Blue River. He conceded that he had taken no sewage tests to determine the questions of seepage and pollution of underground water tables or whether the embankments or dikes around the lagoons would stand up under the periodic onrush of flood waters in the valley.

Appellants Askew, et al. offered testimony to show the following: Sewage lagoons are incapable of neutralizing detergents and ground food wastes. They tend merely to collect instead of treat and dispose of domestic sewage because of overloading. To perform properly there must be a low load factor. The water in the lagoons must be kept at a proper level and there must be a constant, plentiful supply of sunlight and oxygen. In their operation they tend to leave smelly deposits on the embankments and in the vegetation. Flies and mosquitos breed in these places and after a period of cloudy, cold weather or after the water in the lagoons has been frozen over in the winter offensive odors arise, odors which are noticeable to residents and damaging to property even at a considerable distance depending upon the direction in which the wind is blowing. Appellants' engineer testified that a soil sample from the site of the proposed sewage lagoons disclosed an alluvial type soil composed of decayed organic matter not impervious to seepage or water erosion; that it would not offer much resistance to overflow waters; and that the proposed lagoons would constitute a plug or obstruction to the free flow of heavy rainfall and a substantial flood hazard in the Little Blue valley. There was evidence that the value of nearby lands would be depreciated. The F.H.A. places restrictions on housing loans in the near vicinity of such lagoons. Appellants' real estate expert testified that the Henry N. Ess farm on the east bank of the Little Blue River immediately across from the sewage lagoons would be damaged from $19,000 to $22,000 and that the land would be rendered unsuitable for sub-division into large lots for attractive suburban housing, the use and purpose for which it was best adapted, by reason of its location within three miles of the city limits of Independence in an area served by several main highways, its topography and wooded character, and the fact that it is now served by water, gas and electrical power lines.

After the writ of certiorari had been issued and the board of zoning adjustment had certified the record below to the circuit court for review a flash flood or cloudburst occurred in the Little Blue valley. High flood waters covered some of the main roads, rendered them impassable, surrounded and entered homes and buildings in the near vicinity of the lagoon site and flooded part of the proposed site and some of the low acreage of the appellants. On application the court appointed a referee to take additional evidence on the question of damage and depreciation of the value of the adjacent property and on the question of the flood hazard. Testimony and exhibits were produced relating to the flooding of the proposed lagoon site and nearby areas in 1927-28, 1951 and in 1958. Appellants' engineer testified that following the high water in 1958 they had found folld debris high up in the limbs of the trees on both banks of the Little Blue River, higher than the lagoon site on the westerly bank. Photographs were introduced in evidence showing the level reached by the muddy water on cornstalks growing on the high northerly bank of the river which was higher than the lagoon site. The engineer testified that the dikes and embankments of the lagoons would constitute an obstacle which would constrict the flood plain of the river and would periodically tend to back up water so as to...