Campbell v. Cnty. Comm'n of Franklin Cnty.

• Decision Date: 22 July 2014
• Docket Number: No. ED99622,ED99622
• Parties: RUTH CAMPBELL, ET AL., Plaintiffs/Appellants, v. COUNTY COMMISSION OF FRANKLIN COUNTY, Defendant/Respondent, AND UNION ELECTRIC COMPANY, D/B/A AMEREN MISSOURI, Intervenor-Defendant/Respondent.
• Court: Missouri Court of Appeals

RUTH CAMPBELL, ET AL., Plaintiffs/Appellants, v. COUNTY COMMISSION OF FRANKLIN COUNTY, Defendant/Respondent,ANDUNION ELECTRIC COMPANY, D/B/A AMEREN MISSOURI, Intervenor-Defendant/Respondent.

No. ED99622

Missouri Court of Appeals Eastern District DIVISION FOUR

Filed: July 22, 2014

Appeal from the Circuit Court of

Franklin County

Honorable Robert D. Schollmeyer

I. INTRODUCTION

Plaintiffs Ruth Campbell, Nancy Campbell, Edwin Elzemeyer, Jr., Euline Elzemeyer, Richard Stettes, Lorainne Stettes, Kara Carter, Jennifer Carter Norris, Katherine Carter Thomas, Susan Yarbrough, John Yarbrough, and the Labadie Environmental Organization (collectively "Labadie Neighbors") appeal the judgment of the Circuit Court of Franklin County on their petition for a writ of certiorari in favor of defendant County Commission of Franklin County ("Commission") and Union Electric Company, d/b/a Ameren Missouri ("Ameren"). Labadie Neighbors allege two points oferror. First, they argue that the trial court erred by dismissing their Count I claim challenging the legality of Commission's decision to adopt amendments to the Franklin County Unified Land Use Regulations allowing coal-ash landfills, because Commission failed to conduct valid public hearings as required by law.¹ We agree. We reverse the trial court's dismissal of Count I.

In Count II, Labadie Neighbors argue that the trial court erred by upholding Commission's decision to adopt the amendments, because the amendments fail to support the health, safety, and general welfare of Franklin County's citizens. Because the trial court must first resolve Count I before resolving Count II, we reverse the trial court's decision on Count II. We would remand this case to the trial court for further proceedings consistent with this opinion. However, because of the general interest of the question posed by this case, we transfer to the Supreme Court pursuant to Rule 83.02.

II. BACKGROUND

The Labadie Neighbors are eleven individuals who live or own property in the immediate vicinity of Ameren's Labadie power plant in Franklin County, Missouri, and the Labadie Environmental Organization, a citizens' group opposed to Ameren's plan to build a coal-ash landfill in the Missouri River floodplain. Respondent Commission is the governing body of Franklin County.² Respondent Ameren is a utility company headquartered in the City of St Louis, Missouri, that owns and operates four coal-firedpower plants in the St. Louis metropolitan area, including the Labadie plant in Franklin County.

Labadie Neighbors filed in the Circuit Court of Franklin County a petition for writ of certiorari pursuant to section 64.870.2, R.S.Mo. (2000), challenging Commission's amendment of the Franklin County Unified Land Use Regulations to permit the construction of coal-ash landfills "contiguous to the boundary of the property upon which a public utility power plant is situated."³ See generally Franklin Cnty., Mo., Unified Land Use Reg. Art. 10, § 238 (adopted Oct. 25, 2011). Count I alleged that Commission's adoption of the amendments was illegal, because Commission failed to conduct valid public hearings. Count II alleged that Commission's decision to adopt the amendments was illegal, because the amendments do not promote the health, safety, and general welfare of the citizens of Franklin County.⁴ In particular, Labadie Neighbors allege the following facts pertinent to Count I:

53. In 2009, Ameren Missouri announced to the public its proposal to build a coal-ash landfill on the land it had recently acquired nearby the Labadie plant.

54. In July 2009, Ameren Missouri met with Franklin County Planning and Zoning representatives to discuss Ameren's proposal to build a coal-ash landfill near the Labadie plant.

55. On November 16, 2009, Ameren Missouri held a public information session in Labadie to discuss its proposal to build a coal-ash landfill near the Labadie plant. . . .

62. The Franklin County Commission held a public hearing on December 14, 2010, and February 8, 2011, regarding the proposed landfill zoning amendments. . . .

76. The proposed landfill zoning amendments that were the subject of the hearings . . . required that any coal-ash landfill in Franklin County be (1) located within 1,000 feet of an existing utility power generation plant and (2) under common ownership with the adjacent power plant.

78. Ameren Missouri's Labadie power plant is the only public utility power generation plant in Franklin County.

79. The land owned by Ameren Missouri [is] contiguous to the Labadie power plant [and] is in the 100-year floodplain of the Missouri River and most of it is in the floodway.

82. At the public hearing before the Planning and Zoning Commission, the Chairman announced that speakers could not discuss Ameren Missouri or its proposed site for a coal-ash landfill near the Labadie power plant. The Chairman stated: "We are not here to discuss any particular project."

83. At the public hearing before the Franklin County Commission, the Presiding Commissioner stated that speakers could not discuss Ameren Missouri or its proposed site for a coal-ash landfill near the Labadie power plant. The Presiding Commissioner stated: "[I]f we start going off referring to Ameren and the proposal . . . there is no proposal. There hasn't been anything filed so that's going to be a separate issue. . . . If we go off on a tangent about Ameren or about fly ash and all that, I don't want to do that, but I will interrupt you."

84. [T]he Presiding Commissioner and the County Counselor interrupted speakers when they attempted to discuss Ameren Missouri's proposed Labadie landfill site . . . .

92. Because the landfill zoning amendments made coal-ash landfills a permitted use, the Franklin County zoning regulations offer no [subsequent] opportunity for a public hearing on Ameren Missouri's proposed coal-ash landfill in the Missouri River floodplain and floodway.

93. The Franklin County Commission acted illegally and unreasonably by adopting the landfill zoning amendments on October 25, 2011, without holding a valid public hearing as required by section 64.875 and Article 14, section 321 of the Unified Land Use Regulations of Franklin County.

After the Petition was filed, the trial court issued a writ of certiorari to Commission, directing it to provide the trial court a "certified copy of the full, true, and complete record pertaining" to the decision of Commission. Ameren filed a motion to intervene, on the ground that Labadie Neighbors' challenge to the amendments was a challenge to "Ameren Missouri's right to create, operate, and maintain a utility waste landfill" on its property adjacent to the Labadie power plant. The trial court granted Ameren's motion to intervene.

After Commission certified the record of its proceedings to the trial court, Commission and Ameren filed nearly identical motions for judgment on the pleadings pursuant to Rule 55.27(b), or in the alternative, to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 55.27(a)(6). They argued Labadie Neighbors' petition failed to state a claim for relief, because:

[T]he admissions contained in [Labadie Neighbors' petition] demonstrate that [Labadie Neighbors] and their designated consultants were heard and their testimony and evidence considered and discussed by both the Franklin County Planning & Zoning Commission and the Franklin County Commission prior to the Frank County Commission's enactment of . . . the "Landfill Zoning Amendments."⁵

Additionally, Ameren filed a motion to appoint a referee to take additional evidence in the case. ⁶

The trial court conducted a hearing on Commission's and Ameren's motions to dismiss. At the request of the trial court, Commission and Ameren filed separate memoranda in support and Labadie Neighbors filed a memorandum in opposition. Thereafter, without explanation, the trial court granted the motions to dismiss Count I.⁷Following a hearing on the merits, the trial court entered final judgment in favor of Ameren and Commission on Labadie Neighbors' Count II claim that the zoning amendments do not promote the health, safety, and general welfare of Franklin County. This appeal follows.

III. STANDARD OF REVIEW

In Missouri "[t]the writ of certiorari or review maintains its common law function," except as modified by statute.⁸ State ex rel. Sw. Bell Tel. v. Brown, 795 S.W.2d 385, 388 (Mo. banc 1990). The function "of the common-law writ of certiorari . . . [is to review] all questions of jurisdiction, power, and authority of the inferior tribunal . . . and all questions of irregularity in the proceedings." Id. at 387-88 (quoting 14 Am. Jur. 2d Certiorari § 2 (1964)). Here, section 64.870.2 has "enlarge[d] the scope of the remedy of certiorari and the grounds on which it will lie," Gash v. Lafayette Cnty, 245 S.W.3d 229, 234 (Mo. banc 2008) (quoting 14 C.J.S. Certiorari § 4 (2006)), to encompass legislative zoning decisions, id. at 233-34.⁹

Unchanged, however, is the rule that "[o]nly questions of law are at issue in an action for a common law writ of certiorari." State ex rel. Pub. Counsel v. Pub. Serv.Comm'n, 210 S.W.3d 344, 351 (Mo. App. W.D. 2006). "Because questions of fact are not at issue . . . the reviewing court . . . considers only questions of law that appear on the face of the record." Id. at 351-52.

Likewise, "[a] motion to dismiss or quash the writ for . . . right to relief prayed by the petition . . . confess[es] all facts well pleaded, but search[es] the whole record and attack[s] the first fatal [error in a matter of law]". State ex rel. Berra v. Sestric, 159 S.W.2d 786, 787 (Mo. 1942); State ex rel. Modern Fin. Co. v. Bledsoe, 426 S.W.2d 737, 740 (Mo. App. 1968). "A court should construe the petition liberally and consider [quashal] only if it is quite clear that no relief can be had under any legal theory."¹⁰ 14 C.J.S. Certiorari § 83 (2014).

IV. DISCUSSION

A. Count I: Public Hearings Claim

In their first point, Labadie...