Steck v. Mo. Dep't of Natural Res.
| Decision Date | 13 April 2021 |
| Docket Number | WD 83568 |
| Citation | 623 S.W.3d 176 |
| Parties | Carla Malone STECK, Respondent, v. MISSOURI DEPARTMENT OF NATURAL RESOURCES and Missouri Clean Water Commission, Appellants. |
| Court | Missouri Court of Appeals |
Timothy P. Duggan, Jefferson City, for appellant.
Kent L. Brown, Jefferson City, for respondent.
Before Division One: Alok Ahuja, P.J., and Thomas H. Newton and Thomas N. Chapman, JJ.
In 2016, Carla Steck sought approval from the Department of Natural Resources for an in-ground septic system which would treat and dispose of wastewater from both a residential property and an adjacent parcel of commercial property (a so-called "cluster" system). The Department approved the wastewater treatment system, but on conditions which Steck found unacceptable. Steck pursued an administrative appeal. After a hearing, the Administrative Hearing Commission (the "AHC") issued a decision recommending that the Clean Water Commission sustain the Department's approval of the cluster wastewater treatment system. The Clean Water Commission unanimously adopted the AHC's recommendation.
Steck then petitioned for judicial review in the Circuit Court of Cole County. The circuit court reversed the Commission's decision. It held that the Department of Natural Resources did not have regulatory authority to approve a wastewater treatment system in this case, and that the Clean Water Commission unlawfully considered new, extra-record evidence when it reviewed the AHC's recommended decision. The Department appeals. We reverse the circuit court's judgment, and affirm the decision of the Clean Water Commission sustaining the Department of Natural Resources’ conditional approval of Steck's proposed wastewater treatment system.
On December 22, 2000, Carla Steck (along with her husband Charles) submitted a request to the Department of Natural Resources for approval of on-site wastewater treatment systems in a proposed residential development, Beverly's Hill, in Jefferson City. The Stecks planned a residential housing development consisting of 32.3 acres, to be divided into twelve individual lots. Each lot would employ an on-site wastewater treatment system, also known as a septic system.
The 2000 application included a geohydrologic evaluation (prepared by the Department's Division of Geology and Land Survey), a soils report (completed by a soil scientist retained by the Stecks), and a proposed plat map for the development. The geohydrologic evaluation concluded that a minimum lot size of 2.2 acres would be required, based on "the potential impact of absorption-field effluent on groundwater." In comparison, the soils evaluation report concluded that a minimum lot size ranging from 0.92 to 2 acres would be sufficient to support individual wastewater treatment systems for the lots in the development.
Under 10 CSR 20-6.030(7)(A), the applicable minimum lot size is "the larger of the values calculated" in the geohydrologic evaluation and in the soils report, meaning that the 2.2-acre minimum lot size recommended by the geohydrologic evaluation would be controlling. The proposed plat map attached to the Stecks’ request for approval divided Beverly's Hill into twelve lots, each equal to or greater than 2.2 acres.
On December 28, 2000, the Department approved the use of individual septic systems for each of the twelve lots in the Beverly's Hill subdivision. The Department's approval letter noted that Beverly's Hill would consist of a "thirty-two (32) acre tract ... divided into twelve (12) lots, all of which are 2.2 acres and larger in size." The Department conditioned its approval as follows:
On December 6, 2016, Steck submitted a new request for approval of a wastewater treatment system to the Department. Steck's 2016 request concerned a single lot within the Beverly's Hill subdivision, Lot 1, which Steck still owned. Steck proposed to subdivide Lot 1 in the existing development into two lots: Lot 1-A, a one-acre lot that would remain within the Beverly's Hill subdivision, and which Steck would deed to her son; and Lot A-1, consisting of approximately 1.2 acres, which would be joined to a commercial parcel of 0.11 acres which was located adjacent to, but outside of, Beverly's Hill. The application indicated that Steck's son would build a two-bedroom, two-bathroom, single-family home on Lot 1-A. A barn was located on Lot A-1, which Steck used as an art studio; the barn had one non-public bathroom. Steck sought Department approval of a "cluster" system for wastewater treatment that would service both lots, and for which the owners of both lots would share ownership and responsibility. Steck proposed that this cluster system would be located entirely on the one-acre Lot 1-A.
The 2016 request included a new geohydrologic evaluation, a soils report, and a proposed re-platting which reconfigured Lot 1 and the commercial parcel outside Beverly's Hill into Lots 1-A and A-1. The 2016 geohydrologic evaluation was consistent with the findings of the geohydrologic report completed in 2000, although the 2016 evaluation did not itself establish a minimum lot size.
On June 12, 2017, the Department issued its final approval of a cluster wastewater treatment system to serve Lots 1-A and A-1.1 The approval letter noted that a soil study indicated that "the size of Lot 1-A could potentially be one acre." The letter continued:
However, per 10 CSR 20-6.030(7)(A), the minimum lot size will be the larger of the value calculated in the geohydrologic evaluation if required or the soils report. In [a geohydrologic evaluation] dated October 30, 2000, the minimum lot size was established at 2.2 acres. In comparison of the findings of that report and a [geohydrologic evaluation] dated December 12, 2016, the local hydrologic and geologic characteristics are identical to that of the October 30, 2000 rating. Given the geohydrologic information has not changed, the rating sheet from October 30, 2000, remains valid....
The Department's June 12 letter approved the subdivision of Beverly's Hill Lot 1. It also approved construction of a cluster wastewater treatment system that would service both the single-family residence on Lot 1-A, and the barn/art studio on Lot A-1, with responsibility for the system to be shared by the present and future owners of the two lots. The Department's approval letter required, however, that the acreage of both lots be used for dispersal of wastewater from the septic system.
Charles Harwood is a soil scientist in the Department of Natural Resources who reviewed Steck's 2016 application. Harwood testified that, based on the geohydrologic evaluation, it would not be safe for the environment to have a septic system located solely on Lot 1-A, which serviced both Lot 1-A and Lot A-1. Harwood testified, however, that the system would be acceptable if it took advantage of the entire acreage of the two combined parcels, by locating lateral lines which would disperse effluent on both lots. In his testimony, Harwood recognized that Lot A-1 was not itself subject to Department regulation. He testified, however, that "a septic system for the 1 acre Lot 1-A," standing alone, "would not be approvable," and that the Department "had to look a little bit outside the box to help get this approved."
On June 21, 2017, Steck sought administrative review of the conditions of the Department's approval pursuant to 10 CSR 20-6.030(7)(E). In accordance with §§ 621.250 and 640.013,2 the Administrative Hearing Commission proceeded with contested case review of Steck's appeal. The AHC held an evidentiary hearing on August 25, 2017. On October 13, 2017, the AHC issued its decision recommending that the Clean Water Commission sustain the Department's June 12 approval letter.
The Clean Water Commission considered the AHC's recommended decision at a public meeting on April 4, 2018. During that meeting the Commission questioned not only counsel for the Department and for Steck, but also questioned Steck and Harwood directly. At the conclusion of the meeting, the Clean Water Commission voted unanimously to adopt the AHC's recommended decision without changes.
Steck sought judicial review of the Clean Water Commission's decision in the Circuit Court of Cole County, pursuant to §§ 536.100 to 536.140.3 The circuit court reversed the Clean Water Commission's decision, finding that the Department lacked regulatory authority over Steck's construction of the cluster wastewater treatment system, and that the Commission had improperly considered new evidence during the meeting at which it considered the AHC's recommended decision.
The Department appeals.
On appeal following the circuit court's reversal of an agency decision, we "review[ ] the agency's decision rather than the judgment of the circuit court." Danna v. Mo. Dep't of Soc. Servs., Family Support Div. , 449 S.W.3d 821, 823 (Mo. App. W.D. 2014) (citation omitted). "[T]he party aggrieved by the agency decision has the duty to file the appellant's brief and bears the burden of persuasion before this court." Guthrie v. Mo. Dep't of Labor & Indus. Relations , 503 S.W.3d 261, 265 (Mo. App. W.D. 2016) (); see also Versatile Mgmt. Grp. v. Finke , 252 S.W.3d 227, 232 (Mo. App. E.D. 2008).
Our review is limited to determining whether the [commission]’s actions: (1) violates a constitutional provision; (2) exceeds the [commission]’s statutory authority or jurisdiction; (3) is unsupported by...
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