State ex rel. Darin Gilley and Karen Dean v. County Commission of Franklin County, and Landvatter Enterprises, LLC, Intervenor/Respondent. ( 2020 )

In the Missouri Court of Appeals
Eastern District
DIVISION ONE
STATE ex rel. DARIN GILLEY and ) No. ED108527
KAREN DEAN, )
)
Appellants, )
)
vs. ) Appeal from the Circuit Court
) of Franklin County
COUNTY COMMISSION OF ) 19AB-CC00077
FRANKLIN COUNTY, )
)
Respondent, ) Honorable Michael S. Wright
)
and )
)
LANDVATTER ENTERPRISES, LLC, )
)
Intervenor/Respondent. ) Filed: September 15, 2020
OPINION
Darin Gilley and Karen Dean (collectively “Appellants”) appeal the judgment of the
Circuit Court of Franklin County affirming the decision of the County Commission of Franklin
County (“the Commission”) granting the rezoning of 12.68 acres of land owned by Landvatter
Enterprises, LLC (“Landvatter”) from a Community Development Zoning District (“CD”) to a
Commercial Activity 3 – Community Business – Zoning District (“CA3”). We affirm the
Commission’s decision.
I. BACKGROUND
Landvatter is the owner of approximately twenty-five acres of land located on Old Route
66/West Osage Street near the intersection of Old Gray Summit Road in Franklin County,
Missouri. On July 13, 2018, Landvatter applied to the Franklin County Planning and Zoning
Department to rezone 12.68 acres of its property (“Property”). The Property at the time was
zoned as CD, and Landvatter sought to rezone it to CA3 for the purpose of operating a concrete
batch plant to manufacture and sell concrete products. Additionally, the remaining 11.93 acres
of Landvatter’s land, which would give at least 650 feet between the plant and the residential
properties along Old Gray Summit Road, would remain wooded and vacant to act as a natural
buffer (“the Buffer”) between the residential properties to the south and southwest of the
Property.
The properties between Old Route 66 and Old Gray Summit Road are zoned CD and
across the road is zoned Commercial Activity Highway Service. Properties to the west of and
right across the street from Landvatter’s Property include a Missouri Department of
Transportation (“MoDOT”) storage facility, a fireworks sales shop, a heavy vehicle repair
business, a gas station, and an Ameren Substation. The east of the proposed rezoning is bordered
by actively used railroad tracks. To the south and southwest of the Property are residential
properties where Appellants live. Lastly, immediately to the north of the Property is Interstate
44. The ingress and egress of the Property is located on the outer road of Interstate 44.
The Franklin County Planning and Zoning Commission (“the Planning Commission”)
held a public hearing on November 20, 2018, where testimony was given from proponents and
those opposed to the rezoning of Landvatter’s Property. The Planning Commission postponed
voting on the rezoning application until further review from the Planning Commission’s Review
2
Committee. That committee then recommended approval of the rezoning from CD to CA3 by
three votes to none. On December 18, 2018, the Planning Commission met again and voted
seven to one to recommend the Commission order the rezoning of Landvatter’s Property.
On January 31, 2019, the Commission held a public hearing regarding Landvatter’s
rezoning application. The Commission heard evidence from proponents and those opposed to
the rezoning application. On March 12, 2019, the Commission unanimously voted to grant
Landvatter’s rezoning application and change the Property from CD to CA3 because it
determined the requested rezoning would not be detrimental to the area in question and rezoning
would be beneficial to Franklin County as a whole.
There was a plethora of testimony adduced at the various hearings. The rezoning
application was created in such a way that approximately twelve acres of trees on Landvatter’s
land buffers the residential houses near the zoned Property. Landvatter sought to rezone the
Property to CA3 because it allows for heavy manufacturing which includes concrete batch
plants.
Landvatter also had a concrete batch plant in Kirkwood, Missouri that did not have a
buffer. Located by the Kirkwood plant, there is a subdivision of homes ranging in value from
two hundred thousand to seven hundred thousand dollars. Two homes listed for sale that were
adjacent to the Kirkwood plant were listed for approximately four hundred and fifty thousand
dollars. Additionally, a neighbor of the Kirkwood plant wrote an email stating how well
Landvatter operated the plant which has created little impact on the neighborhood.
Further, Landvatter’s attorney testified the rezoning application comports with the
Franklin County Master Plan (“Master Plan”) because the Property would be used for
3
commercial and manufacturing which is what Franklin County decided would be best along
Interstate 44.
To ease the concerns about polluting the Shaw Nature Reserves nearby, Landvatter’s
plans included having two water retention basins which would prevent any polluted water from
leaving the site. Additionally, there was evidence adduced showing compliance with the
Missouri Department of Natural Resources (“DNR”) at the other Landvatter concrete batch
plants.
Richard Ward (“Ward”) testified in favor of granting Landvatter’s rezoning application.
Ward is an urban planner, has a certification in economic development, has a graduate degree in
urban and regional planning, and has been a consulting planner for over forty-five years in the St.
Louis Metropolitan area. He testified the Property will be divided in use between the actual
plant operation and the Buffer. The Buffer will be about 650 feet between the actual plant and
the residential properties along Old Gray Summit Road. Ward stated the Buffer has no other
practical uses because it is steep, wooded, has two utility lines that pass through it, and the land
does not have effective access. Additionally, there is a pipeline used for petroleum or gas
located on the Buffer. Because of the condition of the land that the Buffer encompasses, Ward
believed the Buffer would be there for a significant amount of time. Ward further testified the
tree cover of the Buffer would act against both sight and sound from the Landvatter plant to the
north.
Additionally, Ward testified about the Kirkwood concrete batch plant and how homes
within fifty feet of the site were close to five hundred thousand dollars and homes within three
hundred feet were priced at seven hundred thousand dollars. Further, Ward testified how the
Master Plan supports the decision to rezone Landvatter’s Property because it would promote
4
growth through industry and commercial uses in that concrete is something that is fundamental
and necessary for growth. Lastly, Ward emphasized he saw no conflict between the surrounding
area and the rezoning of Landvatter’s Property, and that Franklin County’s economy and
prosperity would be positively impacted by allowing the rezoning.
Roger Landvatter testified that a sewer line is a divider between the Property where the
concrete batch plant would be built and the Buffer. On the Buffer side of the sewer line is a
creek in which a bridge would need to be built. He stated there was no desire to spend that kind
of money to develop the Buffer, which was steep. Additionally, testimony showed the Buffer
would remain zoned CD, so if the Property were ever sold the buyers would still have to follow
the current zoning regulations. Roger Landvatter also testified he would be willing to talk with
Franklin County to buy the Buffer to be used as a park.
Tom Kelp (“Kelp”), who owns a contracting business, testified Landvatter’s concrete is
his preferred provider. Kelp stated concrete is a perishable product that can be affected by long
truck drives. He stated having a concrete batch plant in the proposed location of the rezoning
would be an ideal location because there are no other concrete plants in or near Gray Summit.
Lastly, he testified how some places will pay more for Landvatter’s concrete.
Those in opposition to the rezoning of the Property mostly had similar arguments. The
residents living around Landvatter’s Property asserted if the Property was rezoned it would allow
any kind of industry to be built on the land. A big concern for the residents was how they
believed their property values would be negatively impacted if the Property would be rezoned.
Residents testified they like the area because it is quiet, has little traffic, and lots of wildlife.
Additionally, some residents stated they were concerned with the location of the Property and
how trucks would be entering and leaving the area leading to potentially dangerous streets.
5
There was also testimony regarding Landvatter’s other concrete batch plants which had a history
of DNR violations and noise violations. This led to a major concern of the concrete batch plant
potentially damaging the Shaw Nature Reserve nearby through pollution and ground water
waste. People at the hearing stated they believed allowing the rezoning would detrimentally
affect the esthetics. The Director of the Shaw Nature Reserve stated he was concerned the
potential noise and dust from the proposed rezoning would be a detriment to the visitor
experiences at the reserve. Further, a concern of the residents revolved around the Buffer
between the homes and the proposed rezoning. The residents feared there was nothing
preventing Landvatter from bulldozing or leasing out the Property to another party which would
then demolish the Buffer.
After the Commission entered an order approving Landvatter’s application for rezoning,
Appellants filed a petition for writ of certiorari with the Circuit Court of Franklin County. On a
motion for judgment on the record, the Circuit Court affirmed the Commission’s decision.
Appellants now appeal the Commission’s decision to rezone the 12.68 acres of Landvatter’s
Property from CD to CA3.
II. DISCUSSION
Appellants raise six points on appeal which all allege the Commission’s decision to
rezone is illegal. In Appellants’ first point on appeal, they argue the rezoning constitutes
impermissible spot zoning. In Appellants’ second through fourth points on appeal, they argue
Article 7, Section 138 of the Franklin County Planning and Zoning Unified Land-Use
Regulations (“Article 7, Section 138”) is unconstitutional on various grounds. In Appellants’
fifth point on appeal, they argue the Commission abdicated its authority to a private corporation.
And in Appellants’ sixth and final point on appeal, they contend the rezoning bears no
6
substantial relationship to the health, safety, morals, or general welfare, and the Commission’s
decision is an abuse of discretion, is not supported by competent and substantial evidence, and
was arbitrary and capricious.
A. General Standard of Review
“Because a rezoning is a legislative act, we review de novo a challenge to its validity.”
State ex rel. Mason v. County Commission of Franklin County, 551 S.W.3d 54, 57 (Mo. App.
E.D. 2018) (emphasis omitted). We may reverse a legislative action “only if arbitrary and
unreasonable, meaning that the decision is not ‘fairly debatable.’” State ex rel. Helujon, Ltd. v.
Jefferson County, 964 S.W.2d 531, 536 (Mo. App. E.D. 1998) (citation omitted). A decision is
considered arbitrary and unreasonable if it bears no substantial relationship to the public health,
safety, morals, or general welfare. Id. The evidence is viewed in the light most favorable to the
government’s decision. JGJ Properties, LLC v. City of Ellisville, 303 S.W.3d 642, 647-48 (Mo.
App. E.D. 2010).
B. Appellants’ Spot Zoning Claim
In Appellants’ first point on appeal, they argue the rezoning of Landvatter’s Property
from CD to CA3 constitutes impermissible spot zoning because the rezoning operates as a wealth
transfer for one entity, does not promote the public good, and does not follow the goals of the
Master Plan. We disagree.
“Spot zoning” is a descriptive word used for “[w]hen a zoning [decision] or an
amendment puts a small area in a zone different from that of the surrounding area.” Treme v. St.
Louis County, 609 S.W.2d 706, 713 (Mo. App. E.D. 1980) (citation omitted). The main question
to ask is whether the rezoning was done for reasons other than the general welfare. Id. If the
rezoning is in “harmony with the comprehensive zoning plan and is done for the public good-that
7
is, to serve one or more of the purposes of the enabling statute, and so bears a substantial
relationship to the public health, safety, morals and general welfare, it is valid.” Id. (citation
omitted).
One of the purposes of the enabling statute is to secure the most economical use of land
in accordance with a comprehensive plan. Section 64.850 RSMo 2016. Franklin County has
developed a Master Plan to prepare for the future. One mission of Franklin County’s Master
Plan is to provide orderly growth and development of the County through special attention to
land use and economic development. The Master Plan sets forth the goal of creating a diverse
economy with a focus on sectors that create jobs and boost the economy, including
manufacturing, transportation, and logistics. Within that goal, the County wants to work to
create more job opportunities by targeting growing sectors and supporting new and existing
businesses such as manufacturing, which makes up approximately twenty-two percent of the
workforce in Franklin County. One way to accomplish this objective is by encouraging a variety
of land uses throughout the County and encouraging the growth of new commercial and
industrial uses through zoning. Modifications of zoning are allowed under the Franklin County
Planning and Zoning Unified Land-Use Regulations due to the ever-changing conditions that
exist in the County.
Another goal of the Master Plan is to ensure contiguous land uses are compatible. One of
the ways to carry out such a goal is to ensure new developments minimize conflict with existing
residential activities. The Master Plan also specifically discusses new industrial or commercial
developments creating a buffer between differing uses.
We are not convinced, under these circumstances, the Commission’s decision to rezone
Landvatter’s Property was out of alignment with the Master Plan. The concrete batch plant
8
promotes the expansion of the manufacturing field within Franklin County. Additionally, the
Commission followed the guidance of the Master Plan to ensure there was a buffer zone between
the residential community and the concrete batch plant.
Appellants contend the private detriment of the surrounding landowners will be immense
because: (1) property values will decrease, and (2) the dust, noise, and pollution will irreparably
harm the quality of life for the people in the surrounding properties. However, there was
testimony presented at the hearings in conflict with Appellants’ contentions. First, there was
various testimony discussing Landvatter’s Kirkwood concrete batch plant and the homes directly
by the operation. There was evidence the homes directly near the Kirkwood plant were within
the two hundred thousand and seven hundred-thousand-dollar range. Second, there was
testimony submitted regarding Landvatter installing two water basins to prevent polluting the
ground water, and how there will continue to be a Buffer which will help with the dust and noise.
Additionally, the operations would be regulated by the DNR which would be subject to quarterly
inspections.
Appellants also argue there is no public benefit gained from rezoning the land to CA3 to
build a concrete batch plant. However, looking at the record before us, it is at least fairly
debatable. There was testimony presented about the need for a concrete batch plant in the area
because concrete is a perishable product. This would ultimately allow the area to have the ability
to continue growing in the manufacturing sector due to the accessibility of the concrete.
We are not convinced the rezoning of the Property was done for reasons other than the
general welfare under these circumstances. Therefore, the Commission’s decision to rezone the
9
Property CA3 does not constitute improper spot zoning. 1 See Treme, 609 S.W.2d at 713. Point
one on appeal is denied.
C. Appellants’ Constitutional Claims
In Appellants’ second through fourth points on appeal, they contend the rezoning is
illegal because Article 7, Section 138 is unconstitutional as it violates the Equal Protection
Clauses and Due Process Clauses of the U.S. and Missouri Constitution.
1. Whether Article 7, Section 138 Violates the Equal Protection Clauses
In Appellants’ second point on appeal, they allege the rezoning violates the Equal
Protection Clauses of the U.S. and Missouri Constitution because Article 7, Section 138 is not
rationally related to a legitimate state interest. Further, Appellants argue having a concrete batch
plant in a commercial district results in such a land use not being subject to the same buffer
requirements as though it had been classified in an industrial district, thereby causing residents
living near the Property being treated differently than other people residing near properly
classified industrial operations. More succinctly, Appellants contend the Commission’s decision
violates the Equal Protection Clauses by arbitrarily deciding which manufacturing companies
can be classified under Article 7, Section 138 and which ones cannot. We disagree.
Since there is no suspect classification or fundamental right at issue in this case, we apply
rational-basis review to determine if the challenged land-use regulation is rationally related to
some legitimate end. See Labrayere v. Bohr Farms, LLC, 458 S.W.3d 319, 331 (Mo. banc
2015). We presume the land-use regulation has a rational basis, and an appellant must overcome
this presumption by a “clear showing of arbitrariness and irrationality.” See Id. at 332 (citation
1
We dispose of Appellants’ contentions that the rezoning operates as an improper wealth transfer for Landvatter.
Because Appellants have failed to cite any controlling legal authority to support their argument, and we can find no
such legal authority, it has no merit.
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omitted). Additionally, “[t]he issue is not whether the reviewing court perceives the challenged
law as wise or desirable. The issue is whether the challenger has demonstrated that the law is
completely irrational.” Id.
Appellants argue Article 7, Section 138 arbitrarily allows a class of industry to “sneak
into” a commercial district rather than be classified as industry under Article 7, Section 144 of
the Franklin County Planning and Zoning Unified Land-Use Regulations (“Article 7, Section
144”). They contend buffers, in this circumstance, are a requirement under Article 7, Section
144 because Article 13, Section 295 of the Franklin County Planning and Zoning Unified Land-
Use Regulations calls for borders when industry is next to residential houses. In contrast, the
Commission points out “concrete product manufacturing” is specially listed in “manufacturing,
heavy” under Article 2, Section 15 of the Franklin County Planning and Zoning Unified Land-
Use Regulations, so the fact manufacturing use may be in a commercial district is of no weight
when considering the buffer required. Additionally, the Commission asserts Article 7, Section
138 is rationally related to Franklin County’s legitimate goal of improving the economic
conditions in the County and implementing its plan for long term development and growth
through its Master Plan.
We find Appellants have not established Article 7, Section 138 is completely irrational,
and therefore, they have not overcome the presumption that the regulation has a rational basis.
See Labrayere, 458 S.W.3d at 332. Therefore, Appellants have not demonstrated the rezoning
violates the Equal Protection Clauses of the U.S. and Missouri Constitution. Point two on appeal
is denied.
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2. Whether Article 7, Section 138 Violates the Due Process Clauses Because it is
Facially Unconstitutional
In Appellants’ third point on appeal, they allege the rezoning violates the Due Process
Clauses of the U.S. and Missouri Constitution because Article 7, Section 138 is facially
unconstitutional as it defines a commercial district to include industrial manufacturing.
Appellants specifically assert the regulation, (a) violates Due Process because of vagueness; and
(b) bears no substantial relationship to the health, safety, morals, or the public welfare. We
disagree.
a. Vagueness
We first turn to Appellants’ contention that Article 7, Section 138 violates Due Process
because of vagueness.
“[I]n reviewing vagueness challenges, the language is evaluated by applying it to the
facts at hand.” Turner v. Missouri Dept. of Conservation, 349 S.W.3d 434, 443 (Mo. App. S.D.
2011) (citing Feldhaus v. State, 311 S.W.3d 802, 806 (Mo. banc 2010)). Additionally, “neither
absolute certainty nor impossible standards of specificity are required in determining whether
terms are impermissibly vague.” Turner, 349 S.W.3d at 444 (citing Cocktail Fortune, Inc. v.
Supervisor of Liquor Control, 994 S.W.2d 955, 957 (Mo. banc 1999)). Further, “the
hypothetical approach is not the appropriate standard for reviewing whether a regulation is void
for vagueness.” Id. “So long as the terms or words used in the regulation are of common usage
and are understandable by persons of ordinary intelligence, the regulation satisfies the
constitutional requirement of definiteness and certainty.” Bell v. Board of Educ. of City of St.
Louis, 711 S.W.2d 950, 953 (Mo. App. E.D. 1986).
Appellants claim the inclusion of manufacturing in both CA3 and an Industrial
Development Zoning District (“ID”) creates ambiguity in which types of manufacturing are
12
appropriate in which zones such that a common citizen would not know which manufacturing
business belongs in each zone. Appellants contend manufacturing is industrial and not
commercial. We disagree with Appellants under the circumstances of this case. The purpose
and permitted uses of Franklin County’s CA3 Zoning District is found in Article 7, Section 138.
The CA3’s purpose is to “provide locations for a wide range of commercial, retail, service, and
manufacturing activities serving a large community trade area.” Additionally, a permitted use
under CA3 is manufacturing, light and heavy. Specifically listed under “manufacturing, heavy”
is “concrete product manufacturing.” We are not convinced how a person of ordinary
intelligence could fail to understand the above Franklin County Land Use sections, and therefore,
they satisfy the constitutional requirement of definiteness and certainty. 2 See Bell, 711 S.W.2d at
953.
b. Substantial Relationship to the Health, Safety, Morals, or the Public
Welfare
Appellants further contend Article 7, Section 138 bears no substantial relationship to the
health, safety, morals, or the public welfare, because it permits polluting industries to be located
adjacent to residential areas without requiring special use permits. Additionally, they argue
having incompatible land uses adjoining residential areas can decrease the value of neighboring
homes, decrease the quality of life for adjacent citizens through noise and general disruption, and
decrease the health and safety of those citizens through pollution.
The Commission argues the Master Plan has made economic development a priority
which the CA3 Zoning District will assist with. Further, the rezoning helps accomplish the goals
set forth in the Master Plan by contributing to a diverse economy within Franklin County that
2
We dispose of Appellants’ argument that concrete batch manufacturing is industrial and not commercial so it
should not be allowed in a CA3 Zoning District. Because Appellants have failed to cite any controlling legal
authority to support their argument, and we can find no such legal authority, it has no merit.
13
focuses on manufacturing sectors which will potentially increase employment opportunities and
contribute revenue to the county tax base. Additionally, the Property in question prior to the
rezoning was CD – not residential. Further, there was testimony presented that showed the
surrounding environment would be substantially mitigated by the Buffer between Landvatter’s
plant and any residences.
We cannot say with certainty, under these circumstances, that no substantial relationship
to the public health, safety, morals, or general welfare exists. See State ex rel. Helujon, 964
S.W.2d at 536. “Any uncertainty about the reasonableness of a zoning regulation must be
resolved in the government’s favor. . ..” JGJ Properties, 303 S.W.3d at 647 (citation omitted).
c. Conclusion to Point Three on Appeal
Based on the foregoing, Appellants have failed to demonstrate Article 7, Section 138 is
facially unconstitutional under the Due Process Clauses of the U.S. and Missouri Constitution.
Point three on appeal is denied.
3. Whether Article 7, Section 138 Violates the Due Process Clauses Because it is
Unconstitutional as Applied
In Appellants’ fourth point on appeal, they allege the rezoning violates the Due Process
Clauses of the U.S. and Missouri Constitution as applied because Article 7, Section 138
arbitrarily classifies a concrete plant as commercial activity, rather than as industry. We find it is
at least fairly debatable.
Appellants have failed to cite any controlling authority which supports their argument
that Franklin County cannot in its legislative discretion list manufacturing as a permitted use in
its CA3 Zoning District. Also, Appellants have failed to cite to authority which states
manufacturing and industrial uses cannot be contained in different zones. “Any uncertainty
about the reasonableness of a zoning regulation must be resolved in the government’s favor. . ..”
14
JGJ Properties, 303 S.W.3d at 647 (citation omitted). Further, “if the issue is at least fairly
debatable, the reviewing court may not substitute its opinion for that of the zoning authority
which enacted the challenged [regulation].” Id. In this case, we find it is at least fairly debatable
whether there is a substantial relationship to the public health, safety, morals, or general welfare.
See State ex rel. Helujon, 964 S.W.2d at 536. Therefore, Appellants have failed to demonstrate
Article 7, Section 138 is unconstitutional as applied under the Due Process Clauses of the U.S.
and Missouri Constitution. Point four on appeal is denied.
D. Appellants’ Abdicated Authority Claim
In Appellants’ fifth point on appeal, they allege the rezoning was illegal because the
Commission abdicated its authority to Landvatter and allowed the private corporation to regulate
itself in violation of the law. In support, Appellants cite to authority providing “a municipal
corporation may not delegate, contract away or surrender its legislative authority.” Farm &
Home Inv. Co. v. Gannon, 622 S.W.2d 305, 307 (Mo. App. E.D. 1981).
As noted in our standard of review, rezoning is a legislative act. State ex rel. Mason, 551
S.W.3d at 57. The Commission exercised its legislative authority when it decided to rezone the
Property. Additionally, the Commission evaluated the application to rezone, reviewed the
evidence presented by proponents and objectors, and granted the rezoning application after
determining it complied with the Master Plan and was for the public benefit. Appellants have
failed to convince this Court that the Commission abdicated its authority. Point five on appeal is
denied.
E. Appellants’ Sixth and Final Claim
In Appellants’ sixth and final point on appeal, they contend the rezoning bears no
substantial relationship to the health, safety, morals, or general welfare, and the rezoning violates
15
Franklin County Planning and Zoning Unified Land Use Regulations, the Master Plan, and
section 64.850 RSMo 2016. Additionally, Appellants argue the Commission’s rezoning decision
is an abuse of discretion, is not supported by competent and substantial evidence, and was
arbitrary and capricious.
A two-step analysis is used when determining the validity of a zoning decision. Lenette
Realty & Inv. Co. v. City of Chesterfield, 35 S.W.3d 399, 405 (Mo. App. E.D. 2000). “First, the
court determines whether the challenging party has presented sufficient evidence to rebut the
presumption that the present zoning [decision] is reasonable. Then, if the presumption has been
rebutted, the court determines whether the government’s evidence establishes that the
reasonableness of the zoning [decision] is ‘fairly debatable.’” Id. at 405-06.
Additionally, zoning decisions are presumed to be valid. JGJ Properties, 303 S.W.3d at
647. “Any uncertainty about the reasonableness of a zoning [decision] must be resolved in the
government’s favor. . ..” Id. (citation omitted). Further, “if the issue is at least fairly debatable,
the reviewing court may not substitute its opinion for that of the zoning authority. . ..” Id.
(citation omitted). The evidence is viewed in the light most favorable to the government’s
decision. Id. at 647-48.
For purposes of this appeal only, we find it is not necessary to discuss the first step in the
analysis and we therefore proceed to the last step. 3 We believe the reasonableness of the
rezoning is at least fairly debatable under the circumstances of this case. While Appellants
contend their property values will decline, there was evidence presented showing residential
homes near Landvatter’s Kirkwood plant, which are closer in proximity then Appellants’ homes,
3
Appellants’ main arguments to rebut the presumption that the rezoning is reasonable can be summarized as the
following: (1) they argue home prices will decrease; (2) their enjoyment of the land will be compromised; and (3)
the plant will result in pollution damaging the area.
16
were in the two hundred thousand to seven hundred-thousand-dollar range. There was testimony
presented about how the Buffer would help alleviate the noise and dust from the concrete batch
plant. Additionally, there was evidence about how a resident already heard noise from the train
tracks and the interstate. Regarding pollution concerns, there was testimony presented that
Landvatter would be subject to DNR regulations and quarterly inspections. There was also a
plan by Landvatter to add additional water retention basins to prevent water from the plant
leaving the Property. While there were noise complaints from Landvatter’s other concrete batch
plants presented to the Commission, there was evidence that showed Landvatter was never found
to be in violation of St. Louis County regulations.
Further, there was evidence regarding the location of the rezoning. The properties
between Old Route 66 and Old Gray Summit Road are zoned CD and across the road is zoned
Commercial Activity Highway Service. Properties to the west of and right across the street from
Landvatter’s Property includes a MoDOT storage facility, a heavy vehicle repair business, a gas
station, and an Ameren Substation. The east of the proposed rezoning is bordered by actively
used railroad tracks. To the south and southwest of the Property are residential properties where
Appellants live. Lastly, immediately to the north of the Property is Interstate 44. The
surrounding land generally is commercial in nature.
Additionally, testimony by contractor Tom Kelp showed Landvatter’s concrete is his
preferred provider. Kelp stated concrete is a perishable product that can be affected by long
truck drives. He stated having a concrete batch plant in the proposed location of the rezoning
would be an ideal location because there is no other concrete place nearby.
17
Because we find the rezoning decision was at least fairly debatable, 4 we may not
substitute our opinion for that of the Commission. JGJ Properties, 303 S.W.3d at 647; see also
Lenette, 35 S.W.3d at 405-06. Therefore, point six on appeal is denied.
III. CONCLUSION
For the reasons stated above, we affirm the Commission’s decision to rezone the 12.68
acres of Landvatter’s Property from CD to CA3.
ROBERT M. CLAYTON III, Presiding Judge
Robert G. Dowd, Jr., J., and
Michael E. Gardner, J., concur.
4
Appellants argue we should find the rezoning in this case was not fairly debatable pursuant to Fairview
Enterprises, Inc. v. City of Kansas City, 62 S.W.3d 71, 74-83 (Mo. App. W.D. 2001). We disagree, because the
circumstances in Fairview are distinguishable from those in this case. Here, the issue was whether the Property
zoned CD could be rezoned CA3 and a concrete batch plant would operate on the rezoned Property. Fairview did
not involve such an issue or circumstances but instead involved whether an entire area surrounded by agricultural
and low density housing (GP-7) could be rezoned to General Industry (GP-1) and an asphalt plant would relocate
and operate on the newly rezoned property. Id. at 75. The Court found the rezoning was not fairly debatable. Id. at
83. The current circumstances are dealing with a commercial area and not agricultural or low-density housing like
in Fairview. Accordingly, Appellants reliance on Fairview is misplaced.
18