Babb v. Mo. Pub. Serv. Comm'n

Decision Date26 November 2013
Docket NumberNo. WD 76384.,WD 76384.
Citation414 S.W.3d 64
PartiesJames BABB, et al., Respondents, v. MISSOURI PUBLIC SERVICE COMMISSION, et al., Respondent. City of Clarkson Valley, Missouri, Scott Douglass, James Meyer, Lyn Midyett, Honora Schiller, Susan Shea, Scott Schultz, and Wendell Sittser, Appellants.
CourtMissouri Court of Appeals


Shelley E. Brueggemann and Joshua Harden, Jefferson City, MO, for respondent Missouri Public Service Commission.

Stephen G. Jeffery, Chesterfield, MO, for respondents Babb, et al.

John F. Mulligan, Jr., Clayton, MO, for appellants.

Before Division Three: KAREN KING MITCHELL, Presiding Judge, LISA WHITE HARDWICK, Judge and GARY D. WITT, Judge.

GARY D. WITT, Judge.


The Board of Aldermen (“Board”) for Clarkson Valley, Missouri (“City,” collectively including the Board), denied the application of James and Frances Babb (“the Babbs”) for a Special Use Permit (“SUP”) for the installation of a solar energy system (“system”) on their home. The Board denied the Babbs' application based on an ordinance addressing solar energy systems. The Babbs, along with the Missouri Solar Energy Industries Association (“MOSEIA”), filed suit alleging inter alia that the City's ordinance was preempted by the State's permissive regulations on renewable energy, specifically the “Electric Utility Renewable Energy Standard Requirements,” 4 CSR 240–20.100.1 The Babbs also alleged that their application for a SUP had been arbitrarily and capriciously denied. The trial court granted partial summary judgment to both petitioners, based upon a finding that the City's ordinance regulating the grant of an SUP to the Babbs was preempted by the State's statutes and regulations and the ordinance was thus void. The trial court also granted partial summary judgment to the Babbs finding that the City's denial of the SUP was arbitrary and capricious. The court ordered the City to issue a permit within one day of the court's order, and failing to do so, ordered that construction may begin without a permit. Additional counts of the petition remained pending. Without waiting until the judgment became final, the Babbs constructed the system. Later, the Babbs dismissed their remaining claims and received an appealable final judgment. This appeal by the City follows.

In its five points on appeal, the City argues that the trial court erred in granting summary judgment because (1) the City's building ordinances do not actually conflict with the State's statutes and regulations; (2) the Babbs' petition failed to state a claim upon which relief can be granted; (3) the Babbs' petition was filed more than thirty days after the administrative decision of the Board, which is prohibited by section 89.110; 2 (4) MOSEIA's petition failed to state a claim upon which relief can be granted; and, alternatively argues (5) that the court erred in entering its final judgment on the original petition and not on the Babbs' first amended petition.

We affirm.

Factual and Procedural Background 3

In November of 2008, pursuant to an initiative petition, the voters of Missouri adopted Proposition C, the Missouri Clean Energy Initiative, which adopted, among other provisions the “Renewable Energy Standard” found in sections 393.1020–393.1030. Proposition C mandated that 15 percent of the electricity produced by Missouri investor-owned utilities come from renewable energy sources by the year 2021, with 2 percent of that coming from solar photovoltaics.4 Pursuant to Proposition C, the Public Service Commission (PSC) in conjunction with the Department of Natural Resources (“DNR”) adopted regulations regarding renewable energy sources. § 393.1025. Two regulations govern various aspects of how Missouri residents can utilize renewable energy, including solar, wind and other listed forms of renewable energy: 4 CSR 240–20.065 and 4 CSR 240–20.100. One governs how renewable energy systems are to be designed and approved for use. 4 CSR 240–20.065. The other governs how residents and electric utilities are able to receive credits on their electricity bills and Renewable Energy Tax Credits (“RECs”) through the operation of “customer-generator facilities and acquired by the Missouri electric utility.” 4 CSR 240–20.100(2)(B)3.

After the passage of Proposition C, the Babbs began working on a plan to install a solar energy power system for their home. They completed an extensive application process as outlined in 4 CSR 240–20.065 and submitted it to the PSC and the local investor-owned utility company, Missouri Ameren (“Ameren”). Ameren approved the plan on October 12, 2011. On November 1, 2011, the Babbs submitted an application to the City for a building permit to construct the system.5 The original plan called for the installation of one hundred solar energy panels on the roof of their home. Although there were other homes that included solar energy panels within the City, the Babbs' plan called for more panels than anyone else had previously constructed. The plan, however, complied with the City's ordinances that were in effect at the time the plan was submitted in that “there were no requirements therein with respect to the installation or operation of solar energy systems at residential single-family dwellings.” The same day that the Babbs' application for a building permit was filed, the City imposed a moratorium on the construction of solar energy systems within the City. From the record it is unclear which came first: the filing of the application or the adoption of the moratorium.

On January 3, 2012, while the Babbs' building permit application was pending but the moratorium was in effect, the Board adopted two new ordinances. The first changed the type of permit needed for solar energy systems from a building permit that the City's Planning and Zoning Commission (“P & Z”) is authorized to issue, to an SUP that would require the final approval by the Board. See section 405.120(B.15). The second ordinance specifically addressed the requirements for installation of solar energy panels on or adjacent to a residence.6See section 500–M2300. Upon learning that the type of permit required to construct the system had been changed, the Babbs filed an application for an SUP on January 5, 2012. On January 31, 2012, the local fire department, the Monarch Fire Department, approved the plans as required by the ordinance.

On February 3, 2012, the P & Z held a public hearing specifically on the Babbs' SUP application. Following the hearing, pursuant to concerns raised by the P & Z and the public, the Babbs modified the plan to reduce the number of solar panels on the roof of the residence from one hundred to forty-two. In conjunction with lessening the number of rooftop panels, the Babbs agreed to install the remaining panels on stand-alone poles on the ground on their property adjacent to their residence. At the conclusion of the hearing, the P & Z held a vote and it was indicated that the P & Z would recommend the Babbs' plan be approved if the number of roof-top panels were reduced as had been discussed. The Babbs then submitted a revised plan and revised SUP application consistent with their representations to the P & Z. Subsequently, the P & Z voted to recommend approval of the revised plan and the granting of an SUP. Shortly thereafter, but prior to final determination by the Board, on February 9, 2012, the Babbs signed a contract with Ameren to construct the system.

After the P & Z recommended approving the Babbs' plan, the Board held a meeting at which they reviewed the Babbs' SUP application. The Board voted 6–0 to deny the permit. The Board did not set forth the reasons for that denial.

The Babbs filed suit in the Circuit Court of Cole County alleging that the city ordinance was void by preemption because its proscriptions, as applied, prohibited the building of any rooftop solar energy system as permitted in the regulations and encouraged by the Missouri Renewable Energy Act of 2008. Their three-count petition sought a declaratory judgment against the PSC, the Board and City.7 Count I sought declaratory judgment that the City ordinance was in conflict with the statute and regulations and therefore void. Count II sought a declaration of vested rights regarding the application they filed for a building permit prior to the amendment to the ordinance regulating solar electric systems. Count III alleged that the City's denial of its SUP was arbitrary, capricious, unreasonable and an abuse of discretion.

One month after filing its petition, the Babbs moved for partial summary judgment on Counts I and III, preemption and abuse of discretion, respectively. On June 29, 2012, the trial court granted partial summary judgment on Counts I and III but did not address Count II. The trial court ordered the City to issue a permit within one day of the court's order, and failing to do so, ordered that construction of the system could commence without a permit.

The City did not issue the permit, so the Babbs began construction without waiting for the judgment to become final. In November 2012, the Babbs completed construction of their solar energy system and also amended their petition, with leave of court. The amended petition contained the same first three counts and added a new count alleging a governmental taking of their property by the failure to grant the building permit and/or SUPs. Thereafter, on January 29, 2013, the Babbs dismissed Counts II and IV and moved for a final judgment based on the prior partial summary judgment. On January 30, 2013, the trial court entered a judgment granting the PSC's motion to dismiss Counts I through IV as failing to state a claim against the PSC. On April 15, 2013, the trial court entered a final judgment that finalized its previous partial summary judgment. The City brings this appeal.

The City alleges that the trial court erred in granting summary judgment because (1) the trial court erroneously concluded as to...

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