State ex rel. Helujon, Ltd. v. Jefferson County, 71532

• Decision Date: 10 March 1998
• Docket Number: No. 71532,71532
• Citation: 964 S.W.2d 531
• Parties: STATE ex rel. HELUJON, LTD., Appellant, v. JEFFERSON COUNTY, et al., Respondents.
• Court: Missouri Court of Appeals

Page 531

964 S.W.2d 531

STATE ex rel. HELUJON, LTD., Appellant, v. JEFFERSON COUNTY, et al., Respondents.

No. 71532.

Missouri Court of Appeals,

Eastern District,

Division Three.

March 10, 1998.

Robert Schultz, Mary B. Schultz, Descher & Schultz, St. Louis, for appellant.

Thomas B. Weaver, Timothy J. Tryniecki, St. Louis, for respondent.

AHRENS, Presiding Judge.

Helujon, Ltd. ("Helujon") appeals from a judgment upholding a Planned Unit Development Kimmswick Properties, Inc. owns a 46.5 acre parcel of land ("subject property") ² along the Mississippi River in an unincorporated area of Jefferson County, Missouri. Lady Luck Kimmswick, Inc. ("Lady Luck") has an option to lease the subject property for the purpose of developing and operating a gaming and hotel facility.

("PUD") ¹ zoning and denying its requests for declaratory and injunctive relief, administrative review, and for writs of certiorari and prohibition. We affirm and remand.

Helujon owns real estate abutting the subject property at its southern boundary. Helujon also owns numerous other parcels of real estate in and near the city of Kimmswick. Luciana Ross owns and is sole officer of Helujon. The Helujon real estate has never been developed. In fact, the corporate representative, Ms. Ross, testified the real estate was purchased in order to "protect the town as much as possible" from development. The city of Kimmswick is located within one and one-half miles of the southern boundary of the subject property.

Jefferson County approved riverboat gambling in 1993. Thereafter, the county commission issued a request for proposals for a riverboat gambling operation. Lady Luck submitted a proposal. On September 17, 1993, Lady Luck entered into a contract with Jefferson County. The Jefferson County Commission designated Lady Luck as the applicant for Jefferson County to the Missouri Gaming Commission for a riverboat gambling license.

On May 12, 1994, the Jefferson County Commission passed and approved an order which granted a PUD zoning of the subject property and approved a site plan for casino development. The Kimmswick Historical Society filed a lawsuit challenging the order. On October 24, 1994, Kimmswick Properties filed a second application for a PUD zoning and for approval of a preliminary site plan. The original lawsuit was dismissed as moot.

The staff of the Jefferson County Planning and Zoning Commission submitted a report to the planning and zoning commission, recommending approval of the requested rezoning and the preliminary site plan showing the proposed uses and concept, subject to certain conditions. The city of Kimmswick adopted a resolution protesting approval of the proposed casino development and mailed the protest to Jefferson County.

The planning and zoning commission considered the application for the PUD zoning at a public hearing on November 10, 1994. The mayor of Kimmswick presented Kimmswick's protest at the hearing. Despite the protest, the planning and zoning commission voted to recommend approval of the PUD zoning subject to the following conditions set forth in the staff report and one additional condition as follows:

1. The conditions set forth by the reporting agencies shall be followed.

2. A proposed set of covenants and restrictions to provide for continued maintenance of roadways and drainage improvements shall be submitted to the Planning Department.

3. The developer shall be required either to have all improvements in place or provide escrow for remaining improvements prior to approval of the final plat. The proposed future entrance to the site must be completed prior to occupation of the proposed hotel or the conduct of gambling operation.

4. A detailed traffic analysis must be submitted to the Jefferson County Planning and Zoning Department for review.

5. Prior to development the following must be obtained:

a. A floodplain development permit from Jefferson County

b. Any required permits from the U.S. Corps of Engineers c. Any required permits from Union Pacific Railroad

d. An entry permit from the Missouri Highway Department

6. A landscape buffer plan shall be submitted to the Planning and Zoning Department for review.

7. All issues of concern raised in the analysis of the preliminary plat must be resolved with the Planning and Zoning Department.

On November 29, 1994, the Jefferson County Commission unanimously passed a motion that the application be approved "with conditions and stipulations as issued in the forthcoming order." On December 15, 1994, the county commission approved Order No 12-15-94A ("rezoning order") by a vote of two to one. The rezoning order contains no express conditions.

In April 1995, Lady Luck cleared trees and shrubs from the subject property at a cost of $17,605.00 A residence on the site was moved off-site. The property was staked for the purpose of preparing a preliminary construction survey. Kimmswick Properties placed a construction trailer on the subject property at a cost of $12,000.00 to $15,000.00. The trailer has stood, unoccupied, since at least May 1995. It has since been vandalized. Water, sewer, gas and electricity running to the trailer were disconnected. No physical changes have occurred on the subject property since May 1, 1995.

Helujon brought this suit against Jefferson County and the Jefferson County Commission. Kimmswick Properties and Lady Luck intervened. The four-count petition sought: 1) a declaratory judgment holding the rezoning order illegal and invalid; 2) an injunction against development of the gaming facility; 3) administrative review; and 4) a writ of certiorari. On November 16, 1995, the trial court dismissed counts two, three, and four. Helujon later added counts seeking a declaratory judgment that the rezoning order had expired and a writ of prohibition to prohibit the issuance of any development permits.

Ms. Ross testified that she opposed the development because she felt it would have a bad effect on the restored town. She did not present evidence of any actual damages that would be suffered. Barry Hogue, an expert witness, testified the rezoning order was reasonable, consistent with Jefferson County's comprehensive development plan, and not likely to have any negative effect on the value of the surrounding property. Hogue testified that he based his opinion as to the reasonableness of the PUD zoning, in part, on the conditions recommended by the planning and zoning staff.

The trial court entered judgment against Helujon on all claims submitted at trial. The trial court declared the rezoning order to be valid, enforceable, and reasonable.

During oral arguments before this Court, counsel for Kimmswick Properties and Lady Luck stipulated that the planning and zoning commission's "conditions" applied to the county commission's approval of the rezoning order. By a letter to this court dated December 5, 1997, counsel of record for Jefferson County, the County Commission of Jefferson County, and the individual commissioners similarly stipulated that the conditions set out by the planning and zoning commission, in its recommendation for approval of the PUD zoning, apply to the rezoning order.

STANDARD OF REVIEW

The parties disagree on the appropriate standard of review. Helujon argues the county commission acted in an administrative capacity in approving both the PUD zoning and the preliminary site plan. Respondents argue the PUD zoning falls under the ambit of legislative zoning. The Western District addressed a similar issue in both Heidrich v. City of Lee's Summit, 916 S.W.2d 242 (Mo.App.1995) and McCarty v. City of Kansas City, 671 S.W.2d 790 (Mo.App.1984).

The power of a municipality or county to regulate land use is derived from the state police power as that power is delegated through the enactment of statutes. McCarty, 671 S.W.2d at 793. Missouri falls among the large group of jurisdictions that views the exercise of zoning power as a legislative function, rather than a quasi-judicial or Upon review, this Court may reverse a legislative action "only if arbitrary and unreasonable, meaning that the decision is not 'fairly debatable.' " Heidrich, 916 S.W.2d at 248 (quoting Summit Ridge Dev. Co. v. Independence, 821 S.W.2d 516, 519 (Mo.App.1991)). If a decision bears no substantial relationship to the public health, safety, morals, or general welfare, this Court will consider it arbitrary and unreasonable. Heidrich, 916 S.W.2d at 248. Zoning ordinances are presumed valid, and uncertainty about the reasonableness of a zoning regulation must be resolved in the government's favor. Id. Additionally, when reviewing legislative actions, the scope of review is not limited to the record presented to the legislative body. Id.

administrative function. Heidrich, 916 S.W.2d at 248.

Helujon argues that a PUD zoning classification differs from the traditional concept of Euclidian zoning because it contains non-legislative components, thus requiring an administrative standard of review. We agree with Helujon's assertion that not every act of a zoning authority is legislative. See Bowman v. Greene County Commission, 732 S.W.2d 223, 225 (Mo.App.1987). Helujon, however, did not cite a single authority to support its contention that approval of a PUD classification by a county commission is an administrative act.

This Court is aware that Helujon's argument, that approval of a PUD classification is an administrative act, is not completely ungrounded. ³ The PUD is a relatively recent zoning concept, representing a modern, flexible approach to progressive land use planning. McCarty, 671 S.W.2d at 793; City of Tuscaloosa v. Bryan, 505 So.2d 330, 335 (Ala.1987). Nonetheless, it has been decided approval of a PUD classification is a zoning decision, requiring the same standard of review as the zoning or rezoning of an area. Bryan, 505 So.2d at 337; Peachtree Development Co. v. Paul, 67 Ohio St.2d 345, 423 N.E.2d 1087 (1981); Gray v. Trustees, Monclova...