Citizens for Envtl Safety v. MO. Dept. of Natural Resources
| Decision Date | 27 October 1999 |
| Citation | 12 S.W.3d 720 |
| Parties | (Mo.App. S.D. 1999) Citizens for Environmental Safety, Inc., Ms. Charimonde Heger, Ms. Marjorie Mccune, and Mr. Roy Sprinkle, Petitioners-Appellants, v. Missouri Department of Natural Resources, and David A. Schorr, Director, and Southwest Regional Landfill, Inc., Respondents-Respondents. 22497 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Jasper County, Hon. David R. Munton
Counsel for Appellant: John e. Price and John F. Appelquist
Counsel for Respondent: Timothy P. duggan and David A. Taylor
Opinion Summary: None
Appellants petitioned the circuit court for judicial review of a decision by the Missouri Department of Natural Resources ("MDNR") to issue a permit to Southwest Regional Landfill, Inc., ("SRL") to construct a sanitary landfill. Following trial, the circuit court found, inter alia, that "MDNR's decision [to issue the permit] was not unlawful, unreasonable, arbitrary, capricious or an abuse of discretion." Based on this and other findings, the trial court denied the relief requested by Appellants. This appeal followed. We affirm.
SRL submitted its application for a permit to construct a sanitary landfill in Jasper County, Missouri, on April 3, 1991. MDNR issued SRL a permit to construct the proposed landfill on August 11, 1995. During the lengthy period of review, SRL amended its permit application seven times, and MDNR and SRL exchanged voluminous correspondence. Appellants opposed SRL's application for a permit and participated in the review process by corresponding with MDNR and attending public hearings. After MDNR approved SRL's permit application, Appellants filed a four-count petition for judicial review of MDNR's decision to issue the permit with the circuit court. Following trial, the circuit court entered judgment in favor of MDNR. Appellants appeal the circuit court's judgment. Appellants' brief raises only legal issues for our determination. Consequently, we will recount additional facts only as necessary in our discussion.
Appellants filed their four-count petition for review of MDNR's decision under section 536.150.1
"In cases governed by section 536.150, [i.e., noncontested cases,] the circuit court conducts a de novo review in which it hears evidence on the merits of the case, makes a record, determines the facts and decides whether, in view of those facts, the agency's decision is unconstitutional, unlawful, unreasonable, arbitrary, capricious, or otherwise involves an abuse of discretion."State ex rel. Donelon v. Division of Employment Sec., 971 S.W.2d 869, 873-874[2] (Mo.App. 1998). On appeal from a circuit court's review of an agency decision in a noncontested case, we review the circuit court's decision and not the agency's decision. Id. at 873[1]. Because the circuit court's review of a noncontested case is conducted as a court-tried action, our review is governed by the principles enunciated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). State ex rel. Valentine v. Board of Police Comm'rs of Kansas City, 813 S.W.2d 955, 957 (Mo.App. 1991). Accordingly, we will not reverse the judgment of the trial court unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32[1]; State ex rel. Valentine, 813 S.W.2d at 958[8].
Point I: MDNR's Failure to Require Compliance with section 226.720.1
In the first of three points relied on, Appellants argue that the trial court erred in finding that MDNR did not act "unreasonably, arbitrarily or capriciously in granting SRL's permit application" because SRL is bound to construct the landfill in accordance with the terms of the MDNR permit and the permit calls for the landfill to be constructed within 200 feet of two county roads but does not require SRL to construct a fence or screen along these roads as required by section 226.720.1.2
Appellants' argument is wholly dependent on the premise that SRL must construct the landfill in accordance with the terms of the permit issued by MDNR and that SRL cannot deviate from the terms of the permit by building anything not specifically authorized in the permit. We believe this premise is erroneous. It is true that the terms of the MDNR permit require SRL to comply with all "approved plans, specifications and operating procedures." However, the terms of the permit do not prohibit SRL from making other improvements to or uses of the subject property. In other words, the fact that the permit issued to SRL does not require construction of fencing or screening along the county roads does not preclude SRL from doing so. In fact, the permit states:
(Emphasis added.)
This disclaimer clearly recognizes the possible applicability of other laws and expressly rejects any notion that the permit excuses or demonstrates compliance with such laws. Furthermore, the permit does not, in any way, attempt to prohibit the permittee from complying with any other applicable laws.
Moreover, we note that "administrative agencies . . . possess only those powers expressly conferred or necessarily implied by statute." Bodenhausen v. Missouri Bd. of Registration for the Healing Arts, 900 S.W.2d 621, 622[1] (Mo.banc 1995); Mueller v. Missouri Hazardous Waste Management Comm'n, 904 S.W.2d 552, 557[4] (Mo.App. 1995). Even the Appellants concede that MDNR is not responsible for enforcing section 226.720.1, which is part of the state highways and transportation law, administered and enforced by the Missouri Department of Highways and Transportation and the State Highways and Transportation Commission, sections 226.005-226.020. MDNR is neither expressly nor implicitly vested with power to administer or enforce section 226.720.1; thus, we conclude that MDNR possesses no such authority.
Because SRL is not precluded from constructing fencing or screening along roadways--i.e., complying with section 226.720.1--and because MDNR is not authorized to administer and enforce section 226.720.1, MDNR's issuance of a permit that does not expressly require SRL to comply with section 226.720.1 was not unreasonable, arbitrary, or capricious. Accordingly, Point I is denied.Point II: MDNR's Failure to Act Within Time Limits
In their second point, Appellants argue that "[t]he trial court erred in concluding that the time deadlines to grant or deny SRL's permit imposed upon MDNR by statute, regulation and MDNR's own written policies, were merely directive, not mandatory, and that MDNR's admitted violation of the time deadlines was not therefore, arbitrary, capricious and unreasonable . . . ."
Appellants cite four ways in which MDNR's issuance of the permit to SRL was untimely and, therefore, void. First, Appellants argue that MDNR did not issue a permit within twenty-four months after receiving SRL's initial application (on April 3, 1991) in violation of section 260.205.2(3).3 Second, Appellants recount that in a letter dated December 3, 1993, MDNR purported to grant SRL a one-year extension of time (from the date of the letter) for SRL to conform its plans to new federal regulations. Appellants point out that SRL failed to meet the one-year extended deadline. Third, Appellants contend that MDNR violated its own regulations requiring the agency to act on a completed permit application within 120 days. 10 C.S.R. 80-2.020(4)(A)(2). Fourth, Appellants argue that MDNR also violated its own "Expedited Permit Review Policy," which "requires a satisfactory response to MDNR's second technical comment or 'the application will be denied.'" Appellants point out that the trial court found "SRL did not provide a satisfactory response to MDNR's second comment letter."
Appellants contend the trial court erroneously concluded that these four time-limiting provisions are directory rather than mandatory. The crux of Appellants' argument is that each of these provisions use the mandatory words "shall" and "will." They also assert that the time limits are jurisdictional, and, consequently, MDNR's failure to comply with these time limits deprived MDNR of jurisdiction to grant a permit to SRL, rendering SRL's permit void.
Our supreme court addressed the issue of mandatory-versus-directory provisions in Farmers and Merchants Bank v. Director of Revenue, 896 S.W.2d 30 (Mo.banc 1995). In Farmers, the court stated, 896 S.W.2d at 32-33[4] (citations omitted). After considering the time-limiting provisions here at issue, the trial court concluded that they were directory rather than mandatory because the provisions did not provide any sanction for a failure to comply with the time limits.
Appellants urge us to disregard the supreme court's holding in Farmers because the "ruling . . . is unsound." Specifically, Appellants contend (1) that one of the cases cited by the supreme court in Farmers, i.e., Garzee v. Sauro, 639 S.W.2d 830 (Mo. 1982), does not stand for the proposition for which the court cited it, and (2) that the Farmers holding conflicts with a previous supreme court holding, R.B. Indus., Inc. v. Goldberg, 601 S.W.2d 5 (Mo.banc 1980). We find no merit in Appellants' assertions.
This court is...
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