Scheble v. Missouri Clean Water Com'n

• Decision Date: 26 May 1987
• Docket Number: No. 51708,51708
• Parties: John SCHEBLE and Mary Scheble, Respondents, v. MISSOURI CLEAN WATER COMMISSION and Missouri Department of Natural Resources, Appellants.
• Court: Missouri Court of Appeals

Page 541

734 S.W.2d 541

John SCHEBLE and Mary Scheble, Respondents, v. MISSOURI CLEAN WATER COMMISSION and Missouri Department of Natural Resources, Appellants.

No. 51708.

Missouri Court of Appeals,

Eastern District,

Division Four.

May 26, 1987.

Motion for Rehearing and/or Transfer Denied June 24, 1987.

Application to Transfer Denied Sept. 15, 1987.

William Webster, Atty. Gen., Douglas Lind, Sp. Asst. Atty. Gen., Jefferson City, for appellants.

Larry Robertson, High Ridge, John W. Hammon, Anderson, Hammon, Dieffenbach & Schnaare, Hillsboro, for respondents.

SIMON, Judge.

Appellants, the Missouri Clean Water Commission (Commission) and Missouri Department of Natural Resources (DNR), appeal from a judgment entered in the Circuit Court of Jefferson County, vacating an administrative order issued by the Commission on January 24, 1984. Respondents, John and Mary Scheble, did not see fit to file a brief in this court, even though the record on appeal is voluminous. The legal file alone exceeds 1300 pages and the transcript of the hearing before the Commission exceeds 1250 pages. It is the policy of Missouri appellate courts to encourage briefs and oral arguments by both parties. Long v. Stilwell Homes, Inc., 333 S.W.2d 103, 104 (Mo.App.1960). In failing to file a brief, the Schebles have indulged in a practice repeatedly condemned by the courts. See, e.g., Hunter v. Schwertfeger, 407 S.W.2d 606, 608 (Mo.App.1966) and cases cited therein. Failure of a respondent to file a brief is an imposition on this court and leaves us dependent upon appellants' presentation and our own research. However, because no penalty is imposed by statute or rule, we will proceed to determine the case on its merits. Olsen v. Bernie's, Inc., 296 S.W.2d 3, 5 (Mo.1956).

On appeal, appellants raise four points with numerous subpoints. Essentially, appellants contend that the trial court erred: (1) in reversing the administrative order of the Commission on evidentiary grounds because said order was supported by substantial and competent evidence; (2) in reversing the order of the Commission on remedial grounds because the Commission is entrusted with the enforcement of the clean water law and is empowered to issue any order appropriate under the circumstances; (3) in concluding that the Commission was estopped by laches from proceeding against the Schebles; and (4) in holding that the Schebles were denied a fair hearing by the Commission due to an allegedly biased and partial hearing officer.

This case concerns the Wood View Acres Subdivision, located in Jefferson County, Missouri. Approximately 31 homes, situated on lots ranging from .42 to 3.51 acres, are located on the gently rolling hills of Wood View Acres, about twenty miles south of St. Louis. Undeveloped woods and fields form the rear lot lines for most yards, and a intermittent creek flowing out of a pond located at the northeast corner of the development weaves through the subdivision. According to the Commission and DNR the pond and creek are polluted. Discharge pipes connected to individual home sewage treatment systems drip partially treated sewage at points just beyond lot lines in the woods, fields, road ditches, and directly into the creek bed and pond.

According to the findings of fact made by the Commission, the chronicle of Wood View Acres began in the winter of 1975-76 when L.K. Wood Realty Co., Inc. (L.K. Wood) made three separate purchases of contiguous tracts of land in U.S. Survey 3059, Township 43N, Range 4E, Jefferson County, Missouri. L.K. Wood then entered into an alleged agreement with Gardner Planning and Construction, Inc. to develop a subdivision on the newly acquired real estate.

L.K. Wood, a Missouri corporation, was incorporated on June 4, 1958. On June 1, 1979, the company's corporate name was formally changed from L.K. Wood Realty Co., Inc. to Murwood, Inc. For the sake of brevity and consistency we use L.K. Wood throughout this opinion. As a point of clarity, we mention that the Commission had also appealed the reversal of its order directed to L.K. Wood. As the administrative proceedings below against the Schebles and L.K. Wood had been consolidated throughout, we had consolidated the appeals. However, L.K. Wood has since settled with the Commission and that appeal has been dismissed.

On April 9, 1976, L.K. Wood filed a subdivision plat entitled "Wood View Acres" During 1974, 1975, and 1976, John and Mary Scheble purchased from Rutledge R. Mayo three separate but contiguous tracts of land in U.S. Survey 3059, Township 43N, Range 4E, Jefferson County, Missouri. The land purchased by the Schebles is adjacent to the three tracts purchased by L.K. Wood in the winter of 1975-76. (These purchases are represented by areas F and E on the diagram set forth in the appendix of this opinion. Area E consists of the two southern most properties purchased. The diagram is taken from DNR Exhibit 28A. References to appendix shall be by tracts D, E, and F).

with the recorder of deeds for Jefferson County. This plat contemplated the development of a nine lot subdivision on one of the tracts purchased. On August 5, 1976, L.K. Wood recorded a deed of restrictions for the area plotted Wood View Acres and a two acre tract adjacent thereto which constituted the second of the tracts purchased by L.K. Wood. The deed of restrictions, inter alia, granted utility easements, placed restrictions upon the uses allowed for the property, the lot size, square footage, materials that could be employed in construction, animals, automobiles, and machinery that could be kept on the property. The deed also provided for the creation of a Board of Trustees to manage and maintain the development and to levy and collect an annual assessment fee from each lot owner.

On May 5, 1977, L.K. Wood and John and Mary Scheble executed an amendment to the deed of restrictions for Wood View Acres. The amendment, which was recorded in Jefferson County on May 17, 1977, extended the metes and bounds of the real estate to which the deed of restrictions applied. The properties owned by the Schebles with which the amendment was concerned were the three purchased from Rutledge R. Mayo. The amendment caused all properties owned by the Schebles in U.S. Survey 3059, Township 43N, Range 4E (i.e. the three tracts purchased from Rutledge Mayo) to become joined as a contiguous unit covered by the same set of restrictive covenants with all properties owned by L.K. Wood in the same U.S. Survey (i.e. the three tracts purchased in the winter of 1975-76).

On May 11, 1977, L.K. Wood conveyed a 4.2 acre tract of real estate to the Schebles by a general warranty deed. (Tract D--appendix). The deed was recorded at the same time as the amendment to the deed of restrictions. The 4.2 acre tract was part of the three purchases made by L.K. Wood in the winter of 1975-76 and was covered by the amendment to the deed of restrictions.

About this time, the Schebles contacted Metropolitan Engineering Co. (Metropolitan) to have some survey work done on their properties. In May of 1977, Robert Eade, an engineer for Metropolitan, prepared and presented to the Schebles a preliminary drawing covering the southern two of the three tracts purchased from Rutledge Mayo (Tract E), as well as the 4.2 acre tract acquired from L.K. Wood. (Tract D). This drawing divided the property into thirteen numbered lots. Subsequently, the Shebles asked Metropolitan to schematize a subdivision plat. The plat was completed on June 6, 1977. This subdivision plat, entitled "Wood View Acres Addition," covered only the two southern tracts purchased from Mayo. (Tract E). It differed from the preliminary drawing in that the 4.2 acre tract acquired from L.K. Wood was (Tract D) excluded (lots 11, 12, & 13) and the numbering of the lots on the remaining tracts was changed. Lot 1 on the preliminary drawing was designated "outlot" on the plat and the remaining lots 2 through 10 on the preliminary sketch were correspondingly renumbered 1 through 9. According to Mary Scheble, the "outlot" was designated as such because there was a house already in existence on the lot, but the boundaries had not been determined. When Metropolitan Engineering was hired, the Schebles asked it to provide boundaries for that lot as well as the further lot divisions. It is not clear who chose the designation "outlot" for the former lot 1. The plat was recorded on July 13, 1977 with the recorder of deeds for Jefferson County.

On June 9, 1977, Eade prepared an unrecorded survey of the 4.2 acre tract (Tract Metropolitan also drafted a water line extension diagram for the Schebles in June of 1977. This diagram included all three tracts of property purchased from Mayo, as well as the 4.2 acre tract acquired from L.K. Wood, i.e., Tracts D, E, and F. It showed a total of sixteen lots, nine of which were numbered and one of which was labeled "outlot" (the labeled and numbered lots corresponded to the recorded plat). The diagram's specifications contemplated water line service to 16 connections. On June 30, 1977, the diagram was submitted for approval to DNR's central office in Jefferson City, Missouri. DNR did not approve of the water line extension diagram initially. The diagram was ultimately approved in August 1977, after modifications not here relevant. However, the Water Pollution Control Section of DNR's St. Louis Regional Office was not informed of the application or approval of the water line extension diagram by the central office in Jefferson City.

D) for the Schebles. The survey was in accordance with the preliminary sketch of the property. The survey contained three lots designated A, B, and C, which corresponded to lots 11, 12, and 13 on the preliminary drawing.

On July 13, 1977, the Schebles filed for record in Jefferson County, a document entitled "Additional Restrictions For Wood View Acres Addition." The document established certain restrictive covenants concerning the...