State ex rel. Mason v. Cnty. Comm'n of Franklin Cnty.

• Decision Date: 15 May 2018
• Docket Number: No. ED 104766,ED 104766
• Citation: 551 S.W.3d 54
• Parties: STATE EX REL. Kelly Brothers MASON and Concerned Citizens Against Landvatter Ready Mix, Appellants, v. COUNTY COMMISSION OF FRANKLIN COUNTY, Respondent, and Landvatter Enterprises, LLC, Respondent-intervenor.
• Court: Missouri Court of Appeals

551 S.W.3d 54

STATE EX REL. Kelly Brothers MASON and Concerned Citizens Against Landvatter Ready Mix, Appellants,

v. COUNTY COMMISSION OF FRANKLIN COUNTY, Respondent, andLandvatter Enterprises, LLC, Respondent-intervenor.

No. ED 104766

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: May 15, 2018

FOR APPELLANTS: Kathleen Green Henry, 319 North Fourth Street, Suite 800, Saint Louis, Missouri 63102.

FOR RESPONDENTS: Mark S. Vincent, 203 East Main Street, Suite C, Union, Missouri 63084, Steven Reid White, Mary Elizabeth Zastrow, 4 South Church Street, Union, Missouri 63084.

OPINION

James M. Dowd, Chief JudgeKelly Brothers Mason (Mason) and Concerned Citizens Against Landvatter Ready Mix (Concerned Citizens) appeal the judgment entered by the Circuit Court of Franklin County which upheld the rezoning decision of the Franklin County Commission in favor of Landvatter Enterprises, LLC (Landvatter). Appellants claim that the circuit court committed reversible error because certain irregularities that occurred during the application review process deprived Mason and Concerned Citizens of procedural due process and rendered the County Commission and the Planning and Zoning Commission’s (PZC) review and approval of Landvatter’s rezoning application fatally flawed. We agree. In our view, the procedures followed in this case, in which Mason and Concerned Citizens were not given the opportunity to be heard until after the PZC had heard from proponents of the rezoning as well as from other interested parties and had already issued its statutorily-mandated recommendation to the County Commission, deprived Mason and Concerned Citizens of procedural due process because the opportunity they were given to be heard later before the County Commission was not, as required, at a meaningful time and in a meaningful manner. Moore v. Bd. of Educ. of Fulton Pub. Sch. No. 58 , 836 S.W.2d 943, 947 (Mo. banc 1992).

Factual and Procedural Background

This appeal arises from the second of two attempts by Landvatter to build a concrete manufacturing plant on a 24.3-acre tract at the corner of Old Route 66 West Osage Street and Old Gray Summit Road in Franklin County, Missouri. The first attempt was Landvatter’s now-abandoned pursuit of a conditional use permit (CUP), and the second is Landvatter’s application to rezone the property now before the Court.

Landvatter’s Conditional Use Permit Application

In 2014, Landvatter Ready Mix sought and obtained a conditional use permit from the PZC to build a concrete plant on the tract in question which is located in a district zoned "Community Development." Mason and Concerned Citizens appealed the PZC’s grant of the permit to the Board of Zoning Adjustment. Although the Board voted 3-2 to deny the permit, the Board did not overturn the decision of the PZC because it believed that there needed to be at least four votes in order to do so. Mason and Concerned Citizens challenged the Board’s decision in the Circuit Court of Franklin County and then in this Court. While the appeal was pending, Landvatter Ready Mix withdrew its permit application which rendered the appeal moot.

Landvatter’s Rezoning Application

On April 20, 2015, Landvatter, under the name Landvatter Enterprises, LLC, submitted its application to the PZC to rezone the tract on which it intended to build the concrete plant. The application sought to convert the "Community Development" zoning district into a "Commercial Activity 3 Community Business" district, which would allow Landvatter to construct the concrete plant on the desired tract.

In early May 2015, the PZC announced that at its May 19, 2015 regular monthly meeting it would "hear [Landvatter’s] request" to rezone the tract. The PZC published notice in the local newspaper and also sent postcard notices to Mason and other individuals residing within 600 feet of the tract in question. This process including the hearing notices sent to the surrounding residents is consistent with and appears to have been derived from a Franklin County regulation specifying the manner in which citizens must be notified before any request to amend the zoning regulations or maps may be heard and adopted. Franklin County Unified Land Use Regulations, Article 14, § 325. Section 325 provides in pertinent part:

A. No order or recommendation that amends any of the provisions of these regulations may be adopted until a public hearing has been held on the proposed amendments.

B. The planning staff shall publish a notice of the public hearing on any order that amends the provisions of these regulations in a newspaper having general circulation in the area. The notice shall be published at least 15 calendar days prior to the public hearing.

C. With respect to map amendments, the planning staff shall mail written notice of the public hearing to the record owners for tax purposes of all properties whose zoning classification is changed by the proposed amendment as well as the owners of all properties within 600 feet of the property rezoned by the amendment.

The newspaper notice and the postcard notices included the phrase "no public comments accepted" with respect to the Landvatter application. On May 5, 2015, the PZC notified various interested parties including representatives of the local fire department and the highway department that the PZC was scheduled to hear the Landvatter request on May 19, 2015 and requested that "[i]f you have any comments or questions that affect whether this rezoning should be recommended or not, please submit them to our office prior to this meeting day. Your comments will be distributed to the Commissioners at or before the meeting."

Mason, for her part, submitted to the PZC clerk a petition with 24 signatures, and several letters, opposing the rezoning and the construction of the concrete plant. The clerk informed Mason that these materials would not be distributed to the PZC for consideration.

Mason and approximately ten members of Concerned Citizens attended the May 19^th PZC meeting and requested the opportunity to speak. The PZC refused the request and accepted no comments or materials from Mason or Concerned Citizens. Instead, the PZC heard exclusively from Landvatter and others speaking in favor of the rezoning before proceeding to vote 9 to 1 to recommend to the County Commission that Landvatter’s application be approved.

Then, the PZC staff scheduled a hearing before the County Commission on July 23, 2015 to consider Landvatter’s rezoning request. The PZC staff again sent to the owners of all properties located within 600 feet of the tract postcards notifying them of the hearing. Mason, members of Concerned Citizens, and other affected individuals attended the hearing. This time, the opposition petition was permitted to be filed, and members of the public were allowed to speak in opposition to the rezoning.

On September 1, 2015, the Commission issued its order adopting the PZC’s recommendation to approve the rezoning application. Mason and Concerned Citizens appealed the County Commission’s order to the circuit court which held a hearing, received no new evidence and, on August 22, 2016, entered judgment in favor of the Commission and Landvatter. The court stated that it would not "usurp the authority of the Commission," and made no findings of fact or conclusions of law.

This appeal follows. Additional facts, as relevant, are provided below.

Discussion

The question before this Court is whether the procedures followed by the PZC and the County Commission—which involved interested parties including appellants being denied the opportunity to be heard at the May 19, 2015 hearing at which the PZC considered whether to recommend approval of the rezoning application, though the PZC heard from those favoring the rezoning—denied Mason and Concerned Citizens procedural due process and thus rendered the rezoning void.

1. Standard of Review.

Because a rezoning is a legislative act, we review de novo a challenge to its validity. JGJ Props., LLC v. City of Ellisville, 303 S.W.3d 642, 647 (Mo. App. E.D. 2010). And as always, statutory interpretation is a question of law that we review de novo. Gash v. Lafayette Cty., 245 S.W.3d 229, 231-32 (Mo. banc 2008).

2. Procedural Due Process.

The right to procedural due process is not the same in every instance; rather, it is flexible and calls for such procedural protections as the particular situation demands. Jamison v. State, Dep't of Soc. Servs., Div. of Family Servs., 218 S.W.3d 399, 406 (Mo. banc 2007) (citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ).

3. Appellants were denied procedural due process by the PZC.

We are guided by the principles laid down by our Supreme Court in Campbell v. County Comm'n of Franklin County, 453 S.W.3d 762, 768 (Mo. banc 2015), a case remarkably similar to this one. In Campbell, the Court reviewed the dismissal by the trial court of the petition challenging the Franklin County Commission’s zoning amendments that were adopted to allow the electric utility Ameren Missouri to build a coal-ash landfill next to its Labadie power plant. Id. at 763. The petition alleged inter alia that the commission failed to conduct a legally sufficient hearing as required by § 64.875 RSMo.

At the Franklin County Commission’s public hearing concerning the application, the chairman informed those addressing the commission that they could not discuss Ameren or its proposed site for a coal-ash landfill near the Labadie power plant. Id. at 764. Moreover, other county officials "interrupted speakers when they attempted to discuss Ameren’s proposed Labadie landfill site...." Id. at 764. The petition asserted that this conduct denied appellants a full and fair opportunity to be heard because the zoning amendments proposed by Ameren were designed specifically to authorize Ameren to build a landfill near its Labadie power plant. Id. at 768.

These facts are remarkably similar to what happened here where the PZC...