Alpha Portland v. Mo. Dept. of Nat. Resources, 40521

• Decision Date: 13 January 1981
• Docket Number: 40522.,No. 40521,40521
• Citation: 608 S.W.2d 451
• Parties: In the Matter of ALPHA PORTLAND CEMENT CO., Respondent, v. The MISSOURI DEPARTMENT OF NATURAL RESOURCES and its Director et al., Appellants. In the Matter of ALPHA PORTLAND CEMENT CO., Respondent, v. The OPEN SPACE COUNCIL FOR the ST. LOUIS REGION et al., Appellants.
• Court: Missouri Court of Appeals

608 S.W.2d 451

In the Matter of ALPHA PORTLAND CEMENT CO., Respondent, v. The MISSOURI DEPARTMENT OF NATURAL RESOURCES and its Director et al., Appellants.

In the Matter of ALPHA PORTLAND CEMENT CO., Respondent, v. The OPEN SPACE COUNCIL FOR the ST. LOUIS REGION et al., Appellants.

Nos. 40521, 40522.

Missouri Court of Appeals, Eastern District, Division Two.

September 16, 1980.

Motion for Rehearing and/or Transfer Denied November 14, 1980.

Application to Transfer Denied January 13, 1981.

John Ashcroft, Atty. Gen., Gregory G. Hoffmann, Gerald M. Sill, Asst. Attys. Gen., Jefferson City, Shulamith Simon, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, for appellants.

Thomas W. Wehrle, County Counselor, George William Lang, II, Associate County Counselor, Albert A. Michenfelder, Jr., Ziercher, Hocker, Tzinberg, Human & Michenfelder, Clayton, for respondent.

Motion for Rehearing and/or Transfer to Supreme Court Denied November 14, 1980.

STEPHAN, Presiding Judge.

This is an appeal by landowners, the Open Space Council for the St. Louis Region, the Missouri Department of Natural Resources and its Director from a judgment of the Circuit Court of St. Louis County affirming a ruling of the St. Louis County Council granting a conditional use permit to the Alpha Portland Cement Company. The permit would allow Alpha to extract sand and gravel from a tract in southwest St. Louis County; after extraction was completed, the area would be developed into a public park with a two hundred acre lake. We reverse.

In March 1975, Alpha filed an application with the St. Louis County Planning Commission for a conditional use permit for the extraction, processing and storage of sand and gravel on the property, which it leases. The tract of some 528 acres is located along the Meramec River near the intersection of Interstate Highway 44 and Antire Road. The land is zoned as part of the non-urban and flood plain non-urban districts, and at the time of the application was being used for agricultural purposes. (Alpha had previously filed two similar applications with the planning commission; both had been denied.) On June 2, 1975, following a public hearing, the planning commission denied the present application by a vote of 9 to 0. Alpha appealed the denial to the county council, which referred the matter back to the planning commission. The commission filed a report with the county council responding to Alpha's points on appeal and reaffirming its denial of the application.

On April 8, 1976, the county council held a public hearing on Alpha's appeal. The council placed in the record a number of communications which it had received in opposition to the proposed permit from landowners and business owners in the vicinity of the site, architectural and environmental groups and the Missouri Department of Natural Resources. At the hearing, these parties, along with other individuals and groups, were permitted to voice their objections. Alpha was represented at the hearing by its attorney, general manager of its Aggregate Division and an independent consulting engineer. In addition to his oral presentation, the attorney introduced engineering and architectural studies and a number of letters from area concrete producers in support of Alpha's application. The attorney's presentation was generally corroborated by the general manager and the engineer. The hearing before the council was transcribed and made part of the record. It indicates that the speakers at the hearing were not sworn; that the speakers were not cross-examined by those of the opposing viewpoint (though the speakers responded to questions from council members); that the various letters and documents were received by the council with little or no identification or authentication; and that no objection to the way the hearing was being conducted was raised at that time. The council took the matter under advisement and subsequently passed a resolution reversing the planning commission and granting the issuance of the permit to Alpha.

A timely notice of appeal of this resolution was thereafter filed with the county council pursuant to § 49.230 RSMo 1969 by the Open Space Council for the St. Louis Region and a number of individuals who alleged that their "rights and interests were adversely affected" by that action of the council. The Open Space Council and several of the individual appellants had appeared at the hearing before the council. The Missouri Department of Natural Resources (which had also so appeared through its director) and Alpha subsequently filed motions to intervene in the appeal; both motions were sustained.

The matter was argued before the circuit court on February 10, 1978. The discussion chiefly concerned the county council's attempt to augment the record that the council had previously certified to the circuit court pursuant to § 49.230. Specifically, the council offered into evidence the aforementioned county ordinance regulating the issuance of conditional use permits, flood plain district regulations, non-urban district regulations and the county charter. Objections to the documents were made by the appellants. The circuit court accepted these documents with the case without ruling on their admissibility. The court subsequently entered judgment affirming the county council's issuance of the permit to Alpha. The court's order contained no ruling on the challenged documents; they do not appear in the record presented to this court.

On appeal to this court, appellants argue that the circuit court erred in affirming the county council's order because (1) the council failed to observe procedures required to produce a reviewable record, in that the pertinent ordinance was not received, sworn testimony was not taken, no opportunity for cross-examination was provided, exhibits were not properly identified or introduced and materials were made part of the record after the close of the hearing; (2) the record, even if sufficient to permit review, does not contain competent and substantial evidence to support the order; and (3) certain new evidence concerning the historical and archeological significance of the site became available to appellants only after the council hearing and the court should therefore have remanded to the council pursuant to § 536.140.4 for a hearing of that evidence. In addition to controverting those arguments, respondents Alpha and the council contend that appellants did not properly invoke the jurisdiction of the circuit court.

We begin by addressing briefly the threshold question of the circuit court's jurisdiction. Appellants sought review in that court by filing a timely notice of appeal with the county council in accordance with § 49.230, which prescribes the method for appeal from the "decisions, findings and orders of county courts of a quasi-judicial...