State ex rel. Dotson v. County Com'n of Clay County

Decision Date04 February 1997
Docket NumberNo. WD,WD
Citation941 S.W.2d 589
PartiesSTATE of Missouri at the Relation of: Carl DOTSON, et al., Appellants, v. COUNTY COMMISSION OF CLAY COUNTY, Missouri, and Platte-Clay Electric Cooperative, Inc., Respondents. 52567.
CourtMissouri Court of Appeals

Bruce A. Dotson, Blue Springs, for appellants.

Ronda Reems, Kansas City, for Respondent County Commission of Clay Co., MO.

Michael J. Abrams, Kansas City, for Respondent Platte-Clay Electric Cooperative, Inc.

Before SMART, P.J., and SPINDEN and ELLIS, JJ.

PER CURIAM.

Carl Dotson and other interested property owners appeal from a decision of the circuit court, affirming an order of the Clay County Commission ("County Commission") granting a conditional use permit to the Platte-Clay Electrical Cooperative ("Cooperative") for the construction of a communications tower. Appellants claim that the trial court erred in affirming the decision of the Commission because the permit was unlawfully granted in that: (1) it did not meet the law's requirements; (2) evidence from outside the record was used in making the decision; (3) it unlawfully dismissed a valid protest and failed to get a majority of votes; and (4) it failed to make separate findings of fact and conclusions of law. Appellants also contend that certain setback and subdivision requirements were violated. The judgment is affirmed.

On March 6, 1995, the Cooperative filed an application with the Clay County Planning and Zoning Department for a conditional use permit to erect a communications tower for microwave and radio uses. The Cooperative sought to erect the tower to participate in the Med Channel system. The communications tower could also be used by emergency service providers. Notice of a public hearing was published and mailed to the adjoining property owners. Public hearings were held on April 5, 1995 and May 3, 1995. The Clay County Planning and Zoning Department issued a conditional use permit on May 3, 1995, contingent upon the approval of the County Commission.

The County Commission met on May 15, 1996 at a public work session. The minutes of that session reflect that Carl Dotson wanted additional time in order to hire an attorney. A fifteen day extension was granted. On May 30, 1995, the County Commission met to consider the matter. Two of the County Commissioners, Commissioner Nichols and Commissioner Brandom, voted in favor of granting the conditional use permit to the Cooperative. A third Commissioner, Commissioner Lawson, abstained because of his membership in the Cooperative. The permit contained the following conditions:

2.) This conditional use permit is conditional upon the holders compliance with the following conditions and stipulations:

a.) a fence be erected around the tower and shed for safety purposes and to prevent the vandalism of the premises. Such fence shall be at least six feet (6') in height and contain the necessary warning notices regarding private property.

b.) All applicable State and Federal licenses and permits shall be acquired and actively maintained by Platte Clay Electric Cooperative.

c.) A building permit be issued for the construction of the tower, and meet requirements of the Clay County building codes. Application for such permit shall also include an accurate site plan for the location of the tower and building.

3.) Platte Clay Electric Cooperative will purchase additional property where necessary, so as to provide a buffer of 420 feet radius from the base of the tower exempting properties currently owned by N.W. Electric Power Cooperative, Inc. and AMOCO Oil Company.

On June 30, 1995, the appellants filed a petition for a writ of certiorari with the Circuit Court. A hearing on the matter was held on December 21, 1995. On March 11, 1996, the trial court affirmed the decision of the County Commission.

STANDARD OF REVIEW

This case involves a grant of a conditional use permit by the County Commission to the Cooperative. "Conditional or special use permits allow a land use authorized by a local legislative body and deemed conducive to the general welfare of the community, but which may be incompatible with the basic uses in the particular location in relation to surrounding properties, unless certain conditions are met." State ex rel. Columbia Tower, Inc. v. Boone County, 829 S.W.2d 534, 538 (Mo.App.1992).

In the instant case, we review the action of the County Commission in granting the conditional use permit and not the judgment of the circuit court. State ex rel. Columbus Park Community Council v. Board of Zoning Adjustment of Kansas City, 864 S.W.2d 437, 440 (Mo.App.1993). The scope of our review demands that we determine: (1) whether the action taken by the County Commission was legal, i.e., whether it was authorized by law; and (2) whether the decision of the County Commission was supported by competent and substantial evidence upon the whole record. Ode v. Board of Zoning Adjustment of Platte County, 796 S.W.2d 81, 83 (Mo.App.1990). We review the evidence in the light most favorable to the County Commission's findings, giving its decision the benefit of all reasonable inferences. Medusa Aggregates Co. v. City of Columbia, 882 S.W.2d 223, 224 (Mo.App.1994). Unless the decision is clearly contrary to the weight of the evidence, it will not be disturbed. Id.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Appellants complain that the County Commission failed to present adequate findings of fact and conclusions of law as required by § 536.090, RSMo 1994. Appellants point out that there is no discussion as to why one set of facts was chosen over another or how the law applies to the facts that were chosen. Neither of these, however, are required by § 536.090, which states, in pertinent part:

Every decision and order in a contested case shall be in writing, and, except in default cases or cases disposed of by stipulation, consent order or agreed settlement, the decision, including orders refusing licenses, shall include or be accompanied by findings of fact and conclusions of law. The findings of fact shall be stated separately from the conclusions of law and shall include a concise statement of the findings on which the agency bases its order.

The conditional use permit granted by the Planning and Zoning Commission on May 3, 1995 and adopted by the County Commission on May 30, 1995, contains the following findings:

NOW ON THIS 3rd day of May, 1995, after public hearing duly noticed, the Clay a. Platte Clay Electric Cooperative seeks a conditional use permit pursuant to applicable regulations established by Article 4 of the Clay County Zoning Regulations for a radio communications tower.

County Planning and Zoning Commission makes the following findings:

b. The proposed conditional use permit, subject to the stipulations and restrictions contained herein, at the location requested, to wit: (see legal description attached), will not substantially adversely affect the welfare or convenience of the public.

c. The proposed conditional use permit, as subject to the stipulations and restrictions herein, will not cause substantial injury to the value of other property in the neighborhood in which it is to be located.

d. The location and site of the conditional use permit, and the nature and intensity of the operation, and the site, with respect to roads giving access to it, are such that the conditional use herein will not dominate the neighborhood so as to prevent development and use of neighboring property in accordance with the applicable zoning district regulations.

e. Adequate access roads and entrance and exit drives are provided in accordance with the Clay County Zoning Regulations.

f. Applicant proposes adequate utility drainage and other necessary improvements for the conditional use permit.

The findings and conclusions comply with § 536.090. The law does not require that there be any explanation of why one set of facts was chosen over another. One may discern from the findings and conclusions the evidence which was accepted and the evidence which was rejected by the County Commission. A detailed summary of the evidence relied upon is not required. The basic facts upon which the decision rests are enough. Friendship Village of South County v. Public Serv. Comm'n, 907 S.W.2d 339, 346 (Mo.App.1995). The findings should be "sufficiently specific to enable the court to review the decision intelligently and ascertain if the facts afford a reasonable basis for the order without resorting to the evidence." Missouri Veterans Home v. Bohrer, 849 S.W.2d 77, 80 (Mo.App.1993). The findings in the instant case comply with this requirement and are adequate for the purposes of review.

CONTESTED CASES

Appellants contend that the County Commission did not follow the required procedure for a contested case. Appellants claim that Commissioner Nichols improperly used evidence that was not contained in the record to make her decision. Because of this, appellants reason, her vote should not be counted. Following this chain of reasoning, appellants claim that the vote was not valid because a valid protest was filed with the County Commission that would require a two-thirds majority vote for the conditional use permit to be granted. The record does not support appellants' claims.

Appellants rely upon remarks made by Commissioner Nichols at the May 30, 1995 hearing, in which she stated, "In the beginning I might not have been as passionate for it [the tower], for just Platte/Clay Electric and nothing against you all, but as I visited with the police departments throughout the Platte...

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