Kim Lynch v. Franklin County, Missouri

In the Missouri Court of Appeals
Eastern District
DIVISION TWO
KIM LYNCH, et al., ) No. ED107731
)
Appellants, ) Appeal from the Circuit Court
) of Franklin County
vs. )
) Honorable Ada Brehe-Krueger
FRANKLIN COUNTY, MISSOURI, et al., )
)
Respondents. ) FILED: May 5, 2020
Introduction
Kim Lynch (“Lynch”) and Hootie’s Rescue Haven (“Hootie’s”) (collectively
“Appellants”) appeal from the judgment of the circuit court upholding the decision of the
Franklin County Board of Zoning Adjustment (the “Board”). The Board approved the order of
the Planning and Zoning Commission (the “Commission”) granting Meramec Aggregates, Inc.’s
(“MAI”) application for a conditional use permit for a gravel-mining operation (the “Permit”).
Appellants raise two points on appeal. Appellants first argue that the voting procedure
undertaken by the Commission to approve the Permit violated Franklin County’s Unified Land
Use Regulations (the “Regulations”), thereby invalidating the permitting process such that the
Board’s denial of their appeal was unlawful. Appellants next allege that the Board’s decision to
deny their appeal was not supported by substantial evidence. Appellants suggest the record
shows MAI’s proposed gravel operation would fail the jurisdictional requirements of Reg.
Section 911 because the gravel pit operations would be significantly detrimental to public health
and safety, would substantially injure the value of neighboring property, and lacked conformity
with the County master plan. Because the Commission did not violate Reg. Section 98
concerning motions for reconsideration and because the alleged violation of Robert’s Rules of
Order (“Robert’s Rules”) did not deny Appellants their due process rights, the Commission’s
approval of the Permit was valid under the Regulations, and the Board’s approval of the Permit
was authorized by law. Because the record supports the Board’s determination that the
jurisdictional requirements of Reg. Section 91 were satisfied, the Board’s approval of the Permit
was supported by competent and substantial evidence. Accordingly, we affirm the circuit court’s
judgment upholding the Board’s denial of the Permit appeal.
Factual and Procedural History
MAI applied for the Permit in October 2016 to engage in the mining, production, and sale
of sand and gravel on fifty-four acres of land near the Meramec River in Franklin County. The
area surrounding the property is mainly floodplain and zoned as low-density residential or
undeveloped land. In November 2016, the Commission held a public hearing on MAI’s Permit
application, where both MAI and Appellants attended and presented evidence as to whether the
Permit should be approved.
After the hearing, the Commission’s Review Committee reviewed the Permit application
and recommended approval of the Permit with eleven conditions. Among the recommended
conditions, one condition (“Condition No. 9”) restricted all hauling to and from the site to trucks
owned or operated by MAI or its associated company, Havin Material Service, Inc. (“Havin”).
1
All Reg. Section references are to the Article 4 of the Unified Land Use Regulations of Franklin County (2016).
2
In December 2016, MAI and Appellants attended the Commission’s public meeting,
during which the Commission discussed and voted on the Permit and its conditions. The
Commission noted that the Review Committee’s proposed conditions presented a compromise
on the major issue of minimizing truck traffic and ensuring road safety. During the discussion,
the Commission focused its discussion on three of the eleven conditions. One commissioner
sought to confirm the Commission’s consensus on the first eight conditions. The Chairman
stated, “Before we need a motion, we need to get the conditions.” The commissioner replied:
“That’s what I’m doing. For the conditions here? . . . And that’s what I’m doing with my
motion.” He stated he wanted to move forward “[w]ithout the recommendations of 9, 10, and
11.” The Chairman proceeded: “We have a motion and a second to approve [the Permit] with
conditions one through eight.” On that motion, the commissioners conducted their first vote, and
voted five to approve and five to deny—a tie vote. The Chairman stated that the “motion is not
carried.” The Chairman asked if there was any further discussion, and the Commission
continued to debate the remaining three conditions. At one point, the Chairman perceived a
consensus to remove the eleventh condition, and a commissioner proposed a new motion
accordingly. The Commission still continued to discuss a variety of combinations of approving
the Permit with either nine, ten, or eleven conditions. The Commission extensively debated two
proposed conditions: a condition restricting retail sales at the site (“Condition 10”) and a
condition restricting MAI’s operation to winter months (“Condition 11”).2 The Commission
specifically noted the impact of the hauling restrictions set forth in Condition No. 9 on the site’s
retail potential and addressed concerns about summer and winter operations. A commissioner
moved to vote on the Permit with the first eight conditions plus Condition No. 9, but without
2
Although the Commission employed different numbering, we have designated the conditions herein for
consistency and simplicity.
3
either the condition restricting retail sales or the condition restricting operation in winter months.
In this second vote on the Permit, the Commission voted six-to-four to approve the Permit with
the first nine conditions. The Commission subsequently issued a written order reflecting that the
Permit had been approved with nine conditions.
Appellants, including Lynch, a scientist and owner of Hootie’s, and Citizens for the
Preservation of the Meramec River, LLC, and Nick Norman (“Norman”) appealed the
Commission’s order issuing the Permit to MAI. Separately, MAI also appealed the
Commission’s order, specifically appealing the addition of Condition No. 9. The Board
consolidated the appeals and, at its public hearing on April 25, 2017, accepted arguments and
evidence for both appeals.
Lynch first presented her objections to the Commission’s voting procedure. Lynch
argued that because there was no motion to reconsider or revote, the only legal vote taken by the
Commission under the Regulations was the tie vote on the Permit with eight conditions. Lynch
asserted that vote constituted a denial of the Permit. Lynch also noted that the Commission
follows Robert’s Rules and maintained that the Commission’s second vote after the initial tie-
vote did not conform to Robert’s Rules. Lynch concluded that because the Commission’s first
vote was the only proper vote taken by the Commission, the Board was required to treat the
Permit application as having been denied.
Lynch then addressed the second basis for the appeal, arguing that the Permit should have
been denied because it did not meet the Regulations’ jurisdictional requirements. In particular,
Lynch argues that the Permit did not adequately address road safety, the impact of the gravel
operation on property use, and introduced a nonconforming use to the area’s homes and
undeveloped lands. Residents expressed reservations about decreasing property values if the
4
Permit was granted, and Appellants presented excerpts from two scholarly studies finding a
negative impact by mining operations on property values. Numerous letters from residents were
included in the review packet presented to the Board. Two witnesses also spoke in favor of
Appellants’ appeal on the topic of road safety. Appellant Norman, speaking on behalf of a
wedding venue near the proposed site, and resident Jeff Davis (“Davis”) both attested to
concerns with the gravel-hauling trucks contributing to dangerous traffic conditions, including a
“dead-man’s curve.” Appellants submitted Missouri State Highway Patrol Accident Reports
showing three fatal incidents on Mill Hill Road since 2010 and 133 accidents resulting in 68
injuries on Highway TT between 2006 and 2017. Appellants also offered evidence that the
Missouri Department of Transportation (“MoDot”) indicated it did not presently have funds to
resurface or add shoulders to Highway TT, and a MoDot report on the condition of Highway TT
showed maintenance work was needed and that limited funding would control which
maintenance option would be selected.
MAI countered by presenting evidence and arguments before the Board supporting the
Commission’s vote to approve the Permit. But MAI also offered evidence challenging the
Commission’s inclusion of Condition No. 9 in the Permit approval. Cameron Lueken
(“Lueken”), from Wunderlich Surveying and Engineering, explained that the purpose of the
Permit was to allow MAI to continue mining sand and gravel in the relevant zoning district for
commercial products. MAI served as the sole supplier of aggregate from the Meramec River in
the County. In addition to discussing how MAI complies with the jurisdictional requirements of
the Regulations, Lueken also described MAI’s required adherence to further regulations such as
the Missouri Standard Highway Specifications for Highway Construction and the American Site
Testing Materials standards as well as standards imposed by numerous other organizations,
5
including the Mine Safety and Health Administration, the U.S. Army Corps of Engineers, and
the Missouri Department of Natural Resources (“DNR”).
MAI’s site plan proposed a thirty-year operation, during which the site would be
surrounded by a one-hundred-foot buffer from property lines surrounded by trees and hills, and
after which the site would become a twenty-five-acre lake. The nearest residence would be no
closer than 480 feet from the excavation site. The minimum distance of the next closest
residences would be 850 feet and 885 feet respectively. The nearest business would be a
wedding venue located 11,000 feet away to the southwest and which would operate at different
peak times than the mining operation. Hootie’s would be located 670 feet away, with its
structures located about 1800 feet from the site. MAI emphasized two past property sales at
similar distances from other Havin operations that did not reflect a decrease in property value.
Regarding the potential for increased traffic, MAI presented evidence that the truck route would
run three-quarters-of-a-mile on Mill Hill Road to the intersection of Highway TT. Mill Hill
Road is maintained by the County, and Highway TT is maintained by MoDot. MAI stated that
the highest average volume was projected at seventy trips per day. The site would be closed
during peak recreational times and would be open until 3:30 p.m. on weekdays and until noon on
twelve Saturdays per year.
MAI argued that the restrictions of Condition 9, which allowed only MAI and Havin to
engage in hauling from the gravel-scooping site, would potentially curb retail sales at the
proposed site. MAI requested approval for seventy trips per day for anticipated demand, but
noted present demand was for only eighteen trips. MAI also addressed the voting issues at the
Commission and proposed that the Board “cure any sort of technicality” by informally
discussing the conditions at issue before taking a final vote.
6
Following the parties’ arguments, the Board publicly debated the Permit and its
conditions. The Board acknowledged that it is charged to review the facts received in evidence
and that it is empowered to affirm, deny, or modify any order entered by the Commission. The
Board discussed the Commission’s findings and considered whether approving the Permit would
materially endanger public safety, substantially injure the value of neighboring property, and
lack harmony with the area. The Board voted to deny both Appellants’ and MAI’s appeals from
the Commission’s order approving the Permit with nine conditions. Thus, the Board approved
the Permit with nine conditions. The Board issued its written findings and decision on June 15,
2017.
Appellants petitioned the circuit court under Section 64.8703 on a writ of certiorari. In its
judgment issued February 2019, the circuit court upheld the Board’s approval of the Permit.
This appeal follows.
Points on Appeal
Appellants raise two points on appeal. Point One argues the Board erred as a matter of
law in denying Appellants’ appeal and approving the Permit as granted by the Commission
because the Board’s decision was illegal. More specifically, Appellants posit that the Board’s
approval was wrongfully premised on a void and unlawful approval of the Permit by the
Commission, which voted to approve the Permit within minutes of voting to deny the Permit.
Appellants maintain in the alternative that the absence of a motion to reconsider, in addition to
the Regulations’ express prohibition against reconsideration or taking a second vote, precluded
the Board from approving the Commission’s approval of the Permit.
3
All Section references are to RSMo (2016), unless otherwise indicated.
7
Point Two avers the Board’s approval of the Commission’s approval of MAI’s Permit
was not supported by substantial evidence. Appellants argue the record established that MAI’s
mining activity would (a) materially endanger and/or be significantly detrimental to public health
and safety due to dangerous roadway conditions and deterioration, (b) substantially injure the
value of neighboring property, and (c) fail to conform with the County’s master plan for the area.
Standard of Review
The procedure for judicial review of a decision by a county board of zoning adjustment is
set forth in Section 64.870. See Campbell v. Cty. Comm’n of Franklin Cty., 453 S.W.3d 762,
765 (Mo. banc 2015) (internal citation omitted). The aggrieved party may petition the circuit
court, “stating the decision is illegal in whole or in part,” and thereafter the circuit court “shall
allow a writ of certiorari directed to the board of adjustment or the county commission,
respectively, of the action taken and data and records acted upon[.].” Section 64.870.2. The
circuit court “may reverse or affirm or may modify the decision brought up for review.” Id.
“After entry of judgment in the circuit court in the action in review, any party to the cause
may prosecute an appeal to the appellate court having jurisdiction in the same manner now or
hereafter provided by law for appeals from other judgments of the circuit court in civil cases.”
Id. Appellate review under Section 64.870 is “similar to standard civil procedure in all cases in
that it requires a party to first challenge the zoning decision in the circuit court and, following a
decision by the circuit court, proceed with an appeal as in any other civil case.” Campbell, 453
S.W.3d at 766.
When reviewing an administrative action, such as the decision of a county board of
zoning adjustment, we examine the findings and conclusions of the zoning board, not the
judgment of the circuit court. State ex rel. Karsch v. Camden Cty., 302 S.W.3d 754, 756 (Mo.
App. S.D. 2010) (citing State ex rel. Teefey v. Bd. of Zoning Adjustment of Kansas City, 24
8
S.W.3d 681, 684 (Mo. banc 2000)); Ogden v. Henry, 872 S.W.2d 608, 611 (Mo. App. W.D.
1994) (internal citation omitted).
Our review is twofold: “[(1)] whether the decision of the zoning board was legal in the
sense of being authorized by law and [(2)] whether [the decision] is supported by competent and
substantial evidence upon the whole record.” Martin Marietta Mats., Inc. v. Bd. of Zoning
Adjustment of Cass Cty., 246 S.W.3d 9, 11 (Mo. App. W.D. 2007) (internal quotation omitted).
The record consists of the proceedings before the zoning board. See Karsch, 302 S.W.3d at 756,
761; State ex rel. Jackson v. City of Joplin, 300 S.W.3d 531, 536 (Mo. App. S.D. 2009). We
review a challenge to the legality of the zoning board’s decision de novo as it presents a question
of law. Jackson, 300 S.W.3d at 536 (citing Teefey, 24 S.W.3d at 684). For challenges to
whether the decision is supported by competent and substantial evidence, we may not try the
matter de novo. Karsch, 302 S.W.3d at 756 (internal citations omitted). Nor may we substitute
our judgment for that of the zoning board. Id. Instead, we must view the evidence and
reasonable inferences in the light most favorable to the zoning board. Id. “If the evidence would
support either of two different, opposed findings, this Court is bound by the determination of the
[zoning board].” Id. (internal citation omitted).
Discussion
I. Point One—Validity of the Application Approval
Appellants assert that the Commission’s approval of the Permit was invalid because its
vote violated the Regulations’ prohibition against reconsideration and revoting. Consequently,
Appellants argue the Board lacked lawful authority to affirm the Commission’s action. We
review whether the Board’s actions were illegal in the sense of being unauthorized by law. See
Martin Marietta Mats., Inc., 246 S.W.3d at 11.
9
MAI, the County, and the Board, (collectively “Respondents”) contend that our review
cannot, directly or indirectly, reach the lawfulness of the Commission’s voting procedure to
approve the Permit. We disagree. Respondents correctly note that our review is limited to the
record of the proceedings before the Board. See Karsch, 302 S.W.3d at 761; Jackson, 300
S.W.3d at 536. Yet Appellants raised the issue of the Commission’s alleged voting impropriety
to the Board at the hearing. Indeed, Appellants’ first argument before the Board was that the
Permit approval was invalid due to the Commission’s voting procedure. The Board was
furnished with the Regulations, the evidence presented to the Commission, as well as the
transcript of the Commission meeting. Because our purview encompasses the full proceedings
before the Board, we necessarily must consider the voting impropriety alleged to have occurred
at the Commission meeting. The alleged voting impropriety serves as the source of Appellants’
claim that the Permit approval was unauthorized by law. See Karsch, 302 S.W.3d at 761 (noting
that in reviewing what evidence this Court may review on appeal of an administrative decision,
this Court looks at those parts that were presented to the Board prior to its decision). Further,
because Appellants maintain that the voting procedure invalidated the entire proceeding such that
the Board’s decision was illegal, the Point Relied On presents a question of law that is subject to
de novo review. Jackson, 300 S.W.3d at 536.
A. Reg. Section 98 does not invalidate the Board’s Permit approval
Because the Appellants only identify the Regulations as the legal justification for the
Board’s error in their Point Relied On, we address the Regulations first. See Rule 84.04(d)4
(requiring a Point Relied On to state the legal reasons governing the claim of reversible error);
4
All Rule references are to Mo. R. Civ. P. (2019), unless otherwise indicated.
10
Jackson, 300 S.W.3d at 534 (internal citation omitted) (noting that any argument not included in
the Point Relied On is not preserved for review).
The Board and the Commission must adhere to the Regulations. Article 4 of the
Regulations governs applications, permits, and hearings. Reg. Section 91 sets forth the general
requirements for Permits:
A. An application for a conditional use permit shall be submitted to the Planning
and Zoning Department.
B. Subject to Subsection C, the Planning and Zoning Commission shall issue the
requested permit unless it concludes, based upon the information submitted at the
hearing, that:
1. The requested permit is not within its jurisdiction according to Article 7, or
2. The application is incomplete, or
3. If completed as proposed in the application, the development will not comply
with one or more requirements of these regulations (not including those the
applicant is not required to comply with under the circumstances specified in
Article 6, Nonconforming Situations),
C. Even if the Planning and Zoning Commission finds that the application complies
with all other provision[s] of the regulations, the Planning and Zoning Commission
may still deny the permit if it concludes, based upon clear and convincing evidence
submitted at the hearing, for the following jurisdictional requirements:
1. The use will be significantly detrimental to public health, safety, morals, or
general welfare.
2. The use will cause serious injury to neighboring property use or values.
3. The use will not be compatible with the plan for the area in question and will
comply with all applicable zoning standards and regulations.
Reg. Section 91. Before issuing a Permit, the Commission must hold a public hearing on the
application and give an opportunity for all persons interested in the outcome to present evidence
and arguments. Reg. Section 92(A). In evaluating a Permit application, “[i]f the [Commission]
determines there is substantial credible evidence supporting the application [it] shall make a
motion to approve the application and determine what conditions are necessary.” Reg. Section
95(A). The Commission may impose additional conditions consistent with the jurisdictional
questions in Reg. Section 91 when approving a Permit application. Reg. Section 96. Regarding
11
Permit conditions, “[a] vote may be taken on proposed conditions before consideration of
whether the permit should be denied for any of the reasons set forth in Section 91, Subsections B
or C.” Reg. Section 96(F).
In this case, MAI applied for a Permit for a new gravel-mining operation. The
Commission held a public hearing at which MAI, Appellants, and other interested parties
presented evidence and arguments in favor or against the Permit. See Reg. Section 92(A). The
Commission’s Review Committee then reviewed the Permit application and recommended
approval of the Permit with eleven conditions. At the Commission’s public meeting, which MAI
and Appellants attended, the Commission discussed and voted on the Permit and its conditions.
Given that the main points of contention centered on Condition Nos. 9, 10, and 11, one
commissioner sought a vote on the Permit application containing only Condition Nos. 1–8. On
that motion, the Commission voted five to approve and five to deny—a tie vote, which the
Chairman acknowledged was a denial of the motion. The Commission then debated Condition
Nos. 9, 10 and 11, which were a source of disagreement among the Commission members. After
substantial debate, one commissioner moved to approve the Permit with nine conditions—the
first eight conditions included in the previous vote and Condition No. 9, which limited hauling to
and from the site to trucks owned or operated by MAI or Havin. Condition Nos. 10 and 11,
which restricted retail sales and operation of the gravel operation during winter months, were
omitted from the motion to approve the Permit. The Commission voted six-to-four to approve
the Permit with Condition Nos. 1–9. The Permit application was therefore approved with nine
conditions,5 and the meeting was concluded with no points-of-order or objections.
5
The Regulations denote that the oral vote, rather than the written findings, constitutes the final decision.
12
Appellants posit that the Commission’s vote to approve the Permit with Condition Nos.
1–9 violated the Regulations, which Appellants maintain “expressly prohibit any reconsideration
or second vote on an already denied application.” Although not cited in their Point Relied On,
Appellants identify Reg. Section 98 in the argument portion of their brief as the regulation upon
which they premise their argument. Reg. Section 98 provides:
A. Whenever the Planning and Zoning Commission denies or revokes a conditional
use permit application such action shall not be reconsidered by the board at a later
time unless the applicant clearly demonstrates that:
1. In the sole discretion of the Planning and Zoning Commission, circumstances
affecting the property that is subject to the application have substantially
changed, or
2. In the sole discretion of the Planning and Zoning Commission, new information
is available that could not with reasonable diligence have been presented at a
previous hearing. A request to be heard on this basis must be filed with the
Planning Staff within the time for an appeal to the Board of Zoning Adjustment
or to the circuit court, respectively. However, such a request does not extend
the period within which an appeal must be taken.
B. Notwithstanding Subsection A, the Planning and Zoning Commission may at
any time consider a new application affecting the same property as an application
previously denied or revoked. A new application is one that, in the sole discretion
of the Planning and Zoning Commission, differs some substantial way from the one
previously submitted.
Reg. Section 98. Appellants reason that because a tie vote denies a motion, the vote to approve
the Permit with Condition Nos. 1–8 constituted a denial of the Permit application. Appellants
then argue that the subsequent vote to approve the Permit with Condition Nos. 1–9 was an
improper reconsideration of the same Permit application due to the lack of any substantially
changed circumstances affecting the property between the two votes. Appellants further explain
that Reg. Section 98 Subsection B does not apply, as no new Permit application was filed in the
few intervening minutes of discussion.
13
“If the [Commission] determines there is substantial credible evidence supporting the
application [it] shall make a motion to approve the application and determine what conditions are
necessary.” Reg. Section 95(A). The Regulations empower the Commission to freely debate
and vote on the recommended conditions. See Reg. Section 96(F) (“A vote may be taken on
proposed conditions before consideration of whether the permit should be denied[.]”). Here, the
Review Committee presented the Commission with eleven recommended conditions on the
Permit. Rather than voting on each of the eleven conditions separately, a commissioner moved
for consensus on approving the Permit with the first eight conditions. Detailed debate of the
three disputed conditions continued until the Commission reached agreement by voting on nine
of the eleven recommended conditions—incorporating Condition No. 9 and omitting the
conditions restricting retail sales and restricting operation in winter months. While the
Commissioners cast two votes on the same Permit application, the two votes addressed different
sets of conditions and thus were not identical votes. A true reconsideration vote would have
occurred had the Commissioners voted on the same application with the same conditions.
Appellants’ argument that the second vote was a prohibited vote for reconsideration under Reg.
Section 98 is unavailing because the set of conditions presented with each vote were not identical
and contained substantive differences. The Commissions’ second vote was not a merely
procedural matter. The inclusion of Condition No. 9 stipulated that only trucks from MAI or
Havin could haul materials to and from the site. This condition addressed the roadway concerns
expressed by Commission members. The Commission also recognized that Condition No. 9
impacted another proposed condition barring retail sales from the site, because MAI would be
required to haul the aggregate to the buyers. Thus, while Appellants suggest the Commissions’
second vote was a vote of reconsideration to which MAI was not entitled, we are not persuaded
14
Appellants properly characterize the record. The motions calling for a vote to approve the
Permit application were not made in isolation. Rather, the separate votes were requested on the
Permit application having substantively different conditions.
We will not speculate as to whether and how the discussion on conditions on the Permit
application would have ended if the vote to approve the Permit with eight conditions had passed.
We recognize that framing the initial motion as a vote to approve the Permit with eight
conditions, as opposed to first conducting a separate vote on which conditions would be applied
to the Permit, introduces unnecessary confusion to the process. Nevertheless, we are not
persuaded the Commission violated the Regulations. The unbroken discourse among the
Commission members concerned the array of recommended conditions over which the
Commission exercises complete discretion.6
The Commission operates under a regulatory framework that presumes the approval of a
Permit unless the Commission lacks jurisdiction, the application is incomplete, or the application
is noncompliant with the Regulations. See Reg. Section 91. Nonetheless, the Commission may
still deny the application if it finds clear and convincing evidence that the application fails the
three jurisdictional requirements relating to health and safety, property use and value, and
compatibility with the plan for the area. See id. The Regulations provide that the Commission
shall approve the Permit if the jurisdictional requirements are met, while additional conditions
consistent with the jurisdictional requirements may be imposed by the Commission when
approving the Permit application. See Reg. Sections 91, 96. Therefore, because the Commission
6
We also note that the Reg. Section 98 refers to the following: reconsideration “at a later time;” the opportunity for
a Permit applicant to bring up new circumstances since the prior vote or new information since “a previous hearing;”
and the opportunity for a Permit applicant to refile its application if something changed but needing to adhere to the
original appeal deadline. These temporal cues signal the passage of time following a break in the Permit application
process and a reconsideration of a final decision—hence the proscription against deadline extensions for appeal.
Here, however, there was no break in the permitting process to suggest a reconsideration as contemplated by Reg.
Section 98.
15
did not violate the express language or spirit of Reg. Section 98 concerning reconsideration, the
Commission’s Permit approval was not invalid under the Regulations. Under the record before
us, Reg. Section 98 does not serve as a basis for finding that Board’s approval of the Permit was
unauthorized by law. See Martin Marietta Mats., Inc., 246 S.W.3d at 11.
Additionally, even if we were to find that the Commission’s vote to approve the Permit
with Condition Nos. 1–9 was an improper reconsideration of the failed vote to approve the
Permit with Condition Nos. 1–8, Reg. Section 98 does not expressly state that an improper
reconsideration by the Commission invalidates any subsequent Permit approval. Appellants
identify no section in the Regulations providing a mechanism to invalidate the second vote. We
note that while the Regulations allow the Commission to revoke an approved Permit in the
event of a violation of the regulatory provisions or conditions, such revocation authority is
purely discretionary and does not mandate the Commission revoke an approved Permit. See
Reg. Section 99(A) (providing a Permit “may be revoked by the [Commission.]”) (emphasis
added). In their argument, Appellants cite no regulation or law stating that a violation of Reg.
Section 98 results in automatic denial or revocation of a Permit application. Likewise,
Appellants proffer no regulation addressing the validity or invalidity of a Permit application that
was improperly reconsidered under Section 98(A). Rather, Appellants advance an argument
based not in law but in policy—that the Board should deny approval of a Permit that was
improperly reconsidered by the Commission in violation of Reg. Section 98(A). See Jackson,
300 S.W.3d at 535, 538 (rejecting a policy argument against a zoning council’s approval of a
special use permit, having found “no merit to [the] [a]ppellants’ claim that the [c]ouncil was
without ‘jurisdiction’ to grant the special use permit because the [c]ity failed to follow its own
procedures.”). Appellants fail to satisfy their burden of showing that the agency decision was
16
illegal in the sense of being unauthorized by law. See id. at 536; Martin Marietta Mats., Inc.,
246 S.W.3d at 11.
Appellants attempt to bridge the gap in legal reasoning by relying on F.W. Disposal S.,
LLC v. St. Louis Cty., 168 S.W.3d 607 (Mo. App. E.D. 2005) and State ex rel. Mason v. Cty.
Comm’n of Franklin Cty., 551 S.W.3d 54 (Mo. App. E.D. 2018). Both cases are distinguishable
as they each involve challenges to zoning amendments, which receive enhanced scrutiny of
procedural safeguards because “[t]he exercise of zoning power is a legislative [act]” and thus
may be reversed “only if it is arbitrary and unreasonable, meaning that the decision is not ‘fairly
debatable.’” Windy Point Partners, L.L.C. v. Boone Cty. ex rel. Boone Cty. Comm’n, 100
S.W.3d 821, 824 (Mo. App. W.D. 2003) (internal quotation omitted) (explaining the different
standards of review for Permit appeals and rezoning appeals); see also Mason, 551 S.W.3d at 57
(internal citation omitted); F.W. Disposal S., 168 S.W.3d at 612, 615 n.4. Mason also included a
procedural due-process complaint. 551 S.W.3d at 54, 57. In that case, the appellants had been
denied the opportunity to be heard at a hearing to which they were entitled by both statute and
local regulation. Further, the regulation specified the mechanism to void the decision by
stipulating that no order or recommendation could be adopted without a public hearing. Id. at
58–59. In contrast, no regulation or statute here provides that any voting issue results in an
invalid decision. Moreover, unlike the issue of being denied an opportunity to speak at a hearing
in Mason, we find no violation of Applicants’ procedural due-process rights because, as will be
discussed in the following section, Appellants attended all hearings and meetings and were not
denied any opportunity to challenge the Permit or agency proceedings. See Jackson, 300 S.W.3d
at 536–37 (discussing rejections of due-process challenges where the appellants did not timely
complain of lack of notice and in fact attended and were heard at the relevant hearings).
17
B. Robert’s Rules do not invalidate Board’s Permit approval
Appellants next contend that the Board’s approval was invalid because the Commission
did not follow Robert’s Rules. Preliminarily, we note that Appellants have not properly
preserved this claim. Appellants do not raise any issue relating to Robert’s Rules in their Point
Relied On, which generally identifies only the Regulations as the source of voting irregularity.
See Rule 84.04(d); Jackson, 300 S.W.3d at 534 (internal citation omitted) (noting that arguments
not included in a Point Relied On are not preserved for review). However, because this Court
prefers to rule on the merits of arguments, and because Appellants develop the Robert’s-Rules-
claim in the argument portion of their brief, we exercise our discretion to review the claim. See
Jackson, 300 S.W.3d at 535.
At the time of the relevant meeting and vote, the Commission followed Robert’s Rules,
which provide that “[o]n a tie vote, a motion requiring a majority vote for adoption is lost, since
a tie is not a majority.” Robert’s Rules Section 44, at 405.7 Robert’s Rules also state that a
motion may be made to reconsider a motion on which a vote was already taken. Robert’s Rules
Section 37, at 315. As Appellants submit, the record shows that no motion was made to
reconsider the tie vote on approving the Permit with eight conditions, which resulted in denial.
See Robert’s Rules Sections 37, 44. Rather, as explained in the preceding section, there was no
improper reconsideration of the same vote—that of approving the Permit with eight conditions.
Instead, after further debate, a new motion was made to approve the Permit containing
substantively different conditions. As reasoned above, we are not persuaded by Appellants’
characterization that the second vote on the new motion constituted a reconsideration of
substantially the same motion. Appellants rely upon cases from other jurisdictions applying
7
All Robert’s Rules Section references are to Henry M. Robert III, et al., Robert’s Rules of Order Newly Revised
(11th ed. 2011).
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Robert’s Rules that are, at most, persuasive authority and feature blatant procedural impropriety.
See Wolfman, Inc. v. City of New Orleans, 874 So. 2d 261, 264–65 (La. App. 4th Cir. 2004)
(entertaining a motion to reconsider filed approximately one month out of time); El Dorado
Amusement Co., Inc. v. City of San Antonio, No. 1999-CI-10651, 2004 WL 3323696, at *1–*2
(Tex. Dist. Aug. 18, 2004) (adjusting the voting panel after a failed vote by bringing in another
member to secure a passing vote on the same measure). These cases provide no guidance that
the Board lacked authority to approve the Permit under Robert’s Rules.
However, to the extent the Commission may have failed to precisely follow Robert’s
Rules, MAI posits that Appellants waived their claim because no point of order was raised at the
Commission meeting to enable the Commission to correct such failure. Just as Robert’s Rules
require a motion to reconsider before revoting on the same motion, Robert’s Rules also require a
point of order be made in the event of a perceived rule violation, in which case the chair must
call for a ruling and enforce the regular rules. Robert’s Rules Section 23, at 247–251. Further,
“[i]f a question or order is to be raised, it must be raised promptly at the time the breach occurs.”
Id. Robert’s Rules offer an example that if a chair is stating the question on a motion that has not
been seconded, or on a motion that is out of order in the existing parliamentary situation, then
“the time to raise these points of order is when the chair states the motion. After debate on such
a motion has begun—no matter how clearly out of order the motion may be—a point of order is
too late.” Id. Thus, unless an exception applies to constitute a continuing breach, “[p]oints of
order regarding the conduct of a vote must be raised immediately following the announcement of
the voting result.” Id.
In this case, Appellants first raised the alleged voting impropriety in their appeal to the
Board. Appellants were present at the meeting of the Commission but did not interject a point of
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order when the alleged voting error occurred. More importantly, no commissioner raised a point
of order when the motion was made to vote on the approval of the Permit with Condition Nos.
1–9. Thus, if the motion to vote on the Permit with Condition Nos. 1–9 was indeed out of order,
then the time to identify and correct the error was when the Chairman made the motion to vote to
approve the Permit with Condition Nos. 1–9, or immediately following the vote. Robert’s Rules
Section 23, at 247–251. Appellants did not raise the issue before the Commission but instead
only raised the issue at a later date before a different body—the Board, whose procedure is not
governed by Robert’s Rules. Appellants suggest that they had no standing to raise a point of
order as they were not members of the Commission but only observers of the public meeting.
But the undeniable fact remains that no timely point of order was made to preserve a claim based
on an alleged irregularity under Robert’s Rules.
We are guided in our analysis by Missouri law, which similarly recognizes the conceptual
framework of promptly addressing alleged errors of an administrative agency. Under Missouri
law, a reviewing court may refuse to consider a claim of alleged error by an administrative
agency when the aggrieved party fails to raise the objection before that agency. See Ogden, 872
S.W.2d at 614 (internal quotation omitted) (declining to hear those claims not raised before the
administrative agency because “[a]n issue which has not been presented for determination at the
administrative hearing is not preserved for appellate review, for a court will not set aside an
administrative action unless the agency has been given a prior opportunity to consider the
point”). Thus, to the extent that we are asked to review the voting procedure of the Commission
when considering the Board’s authority to approve the Permit, Appellants’ claim based on a
violation of Robert’s Rules is not preserved. See id. Thus, because Robert’s Rules do not allow
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for an untimely point of order not raised before the Commission, Appellants cannot rely on
Robert’s Rules to justify overturning the Board’s decision.
Therefore, considering both Appellants’ arguments under the Regulations and Robert’s
Rules, we find the Board’s approval of the Permit was legal because the Board’s action was
authorized by law. See Martin Marietta Mats., Inc., 246 S.W.3d at 11. Point One is denied.
II. Point Two—Substantial Evidence Supporting Permit Approval
In Point Two, Appellants maintain that the Board’s decision to approve the Permit was
not supported by substantial evidence and was against the weight of the evidence.
As set forth in the standard of review section, “[a]n agency’s decision is unsupported by
competent and substantial evidence only in the rare case when the decision is contrary to the
overwhelming weight of the evidence.” Miller v. Dunn, 184 S.W.3d 122, 124 (Mo. App. E.D.
2006) (internal citation omitted). We examine whether the agency decision was “arbitrary,
capricious or unreasonable, or involve[d] an abuse of discretion.” Windy Point, 100 S.W.3d at
824; see also Karsch, 302 S.W.3d at 756 (internal citations omitted). We must defer to the
Board’s view of the evidence and reasonable inferences therefrom. See Karsch, 302 S.W.3d at
756 (internal citations omitted). “If the evidence would support either of two different, opposed
findings, this Court is bound by the determination of [zoning board,]” as we may not substitute
our own judgment for that of the Board. Id. (internal citations omitted). We also defer to the
Board’s view of the credibility of witness testimony. Id. at 762 (citing Windy Point, 100 S.W.3d
at 826); Kramer v. Mason, 806 S.W.2d 131, 134 (Mo. App. E.D. 1991).
As described in Point One, the Board reviewed the Commission proceedings. The
Regulations provide that the Commission shall approve a Permit application unless the
Commission lacks jurisdiction, the application is incomplete, or the Permit will not comply with
the Regulations. Reg. Section 91(A–B). The Commission may nonetheless deny the Permit “if
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it concludes, based upon clear and convincing evidence submitted at the hearing” that there is a
problem with the following jurisdictional requirements:
1. The use will be significantly detrimental to public health, safety, morals, or
general welfare.
2. The use will cause serious injury to neighboring property use or values.
3. The use will not be compatible with the plan for the area in question and will
[not] comply with all applicable zoning standards and regulations.
Reg. Section 91(C).
Appellants do not directly refer to Reg. Section 91 in their Point Relied On. See Rule
84.04(d) (requiring a Point Relied On to identify the relevant legal authority); Jackson, 300
S.W.3d at 534 (internal citation omitted) (noting that arguments not included in a Point Relied
On are not preserved for review). However, Appellants address Reg. Section 91’s jurisdictional
requirements by arguing that approving the Permit was not supported by substantial evidence
and was against the overwhelming weight of the evidence in that the record establishes that
MAI’s gravel operation: (i) would materially endanger and/or be significantly detrimental to the
public health and safety due to dangerous driving conditions and deterioration of roadways, (ii)
would substantially injure or cause serious injury to the value of adjoining, abutting or
neighboring property, and (iii) was not in harmony with the area, would not be in conformity
with the County master plan, and was not compatible with the plan for the area. Although
Appellants’ Point Relied On does not explain why MAI’s gravel operation as approved in the
Permit with nine conditions would fail those requirements, Appellants expound on their
reasoning in the argument portion of the brief. For this reason, we gratuitously exercise our
discretion to review the point on its merits. See Rule 84.04(d) (requiring a point relied on to
explain the legal reasoning supporting the claim of error); Jackson, 300 S.W.3d at 535 (internal
citation omitted) (noting that where “we are able to discern the basis for the claim of error, and
22
the defective nature of the point relied on does not impede our disposition of the case, we will
consider the merits of [the] [a]ppellants’ allegation”).
Here, the Commission did not find clear and convincing evidence that the Permit
application failed to meet the Reg. Section 91 jurisdictional requirements. Upon upholding the
Commission’s Permit approval, the Board found that Appellants did not meet their burden of
persuasion to overturn the approval based on the jurisdictional requirements regarding the
adequacy of the roadways and the impact on neighboring property values, among other concerns.
We consider each jurisdictional requirement as follows.
A. No finding of significant detriment to public health or safety
Appellants’ first challenge to the Permit approval focuses on the impact of the gravel-
mining operation on public health and safety. Appellants maintain the record lacks substantial
evidence that the planned gravel-mining operation with associated dump trucks on the roadways
would not materially endanger public health and safety under the first jurisdictional requirement
of Reg. Section 91. We disagree.
The evidence in the record before the Board addressed sound and air emissions, visibility,
traffic, and property values, among other factors. For this first jurisdictional requirement,
Appellants primarily focus on traffic safety conditions and roadway deterioration. Viewed in the
light most favorable to the agency decision, the evidence reasonably supports the Board’s finding
of no clear and convincing evidence of a significant detriment to health and safety arising from
the sound, visibility, or public highway traffic from the proposed site. The Board considered the
additional traffic that MAI’s new operation would add to Highway TT and Mill Hill Road. The
Board found that the new site, surrounded by low-density residential and undeveloped land, did
not present a significant detriment to public health or safety. The truck traffic was projected to
23
gradually increase, at most, to seventy trips per day on weekdays and up to twelve Saturdays,
over a period of approximately thirty years. The present truck-traffic projection was eighteen
trips per day. The addition of Condition No. 9 was designed to limit retail traffic that might
otherwise be generated by the gravel operation.
The Commission and the Board were presented with evidence in the record of the
condition of Mill Hill Road and Highway TT. In particular, a request was made for MoDot to
investigate the condition of Highway TT in the area. MoDot found that maintenance work was
needed and proposed several solutions, but indicated limited funding would direct which option
would be implemented. Additionally, an accident report showed three fatal accidents on Mill
Hill Road since 2010 and 133 accidents on Highway TT between 2006 and 2017. County
residents also testified to the deterioration of the roadway and expressed concerns about
increased traffic, especially along a stretch of roadway referred to as “dead-man’s curve.” See
Windy Point , 100 S.W.3d at 824 (noting in a case affirming a county’s denial of a Permit that
the zoning board could rely on lay testimony about road congestion). While Appellants contend
that such data demonstrated clear and convincing evidence of a significant safety concern, both
the Commission and the Board disagreed, finding the regulatory and conditional requirements of
the Permit approval adequately protected public health. The Board considered MAI’s point that
MoDot never stated that it would not repair Highway TT, but only that MoDot presently had
insufficient funds to add a shoulder, resurface, or make the necessary repairs in the preferred
way. The record also shows that the Commission noted that no culverts or bridges on any of the
routes were substandard such that they would fail the highway requirements. The Board also
heard that the truck entrances onto Mill Hill Road would have to comply with the County
regulations for commercial entrances. Further, the Board discussed how Condition 9 mitigates
24
the most serious traffic safety concerns by limiting the increased truck volume to drivers already
familiar with the area and overseen directly by MAI and Havin. For instance, MAI’s proposed
truck route does not travel the dead-man’s curve, and the imposition of Condition 9 allowed the
highway administrator to control the traffic patterns. Norman had testified that his concerns
related to passing traffic on the dead-man’s curve was attributed to the uncontrolled truck that
could be generated should the site be opened for retail sales. Upon review of all the evidence
presented, the Board did not find rejecting the Permit was necessary to protect public safety
merely due to increased traffic and the need for roadwork by MoDot. When the evidence may
support either of two different, opposed findings, we are bound by the Board’s view of the record
and will not reweigh the evidence. See Karsch, 302 S.W.3d at 756 (internal citations omitted);
see also Greene Cty. Concerned Citizens v. Bd. of Zoning Adjustment of Greene Cty., 873
S.W.2d 246, 257–58 (Mo. App. S.D. 1994) (rejecting invitation to reweigh the evidence posed
by the appellants’ detailed recitation of how the conditions imposed on the approved permit—
including but not limited to conditions for hours of operation, design of buildings, odor dilution
ratio, and sound proofing—would inadequately control noise, odor, and traffic).
The record reflects that the Board carefully considered the potential impact of the gravel
operation on the area roadways with respect to health and safety of the county residents. We are
not persuaded that the Board acted in a manner that was “arbitrary, capricious or unreasonable,
or involve[d] an abuse of discretion.” Windy Point, 100 S.W.3d at 824. Indeed, the Board
debated at length the final three conditions involving traffic related to retail sales, winter months,
and third-party drivers. The Board approved the Permit with Condition 9, limiting hauling to
only those trucks owned or operated by MAI or Havin, demonstrating the Board’s intent to
ensure roadway safety by minimizing the presence of unknown, third-party drivers.
25
Adhering to our deferential standard of review, we are unwilling to hold that Board erred
in finding Appellants failed to meet their burden of demonstrating clear and convincing evidence
of material endangering of public health or safety to justify denying the Permit. See Karsch, 302
S.W.3d at 756.
B. No finding of serious injury to neighboring property use or value
The Board also determined that Appellants did not adduce clear and convincing evidence
that granting the Permit would cause serious injury to neighboring property value or use under
the second jurisdictional requirement of Reg. Section 91.
Viewed in the light most favorable to the agency decision, the proposed gravel-mining
site consists of fifty-four acres of land near the Meramec River. The property at issue is mainly
surrounded by low-density residential and undeveloped floodplains. MAI’s activities involve
using an excavator to scoop gravel and sand into dump trucks, which then haul the load from the
Meramec River along Mill Hill Road and Highway TT. MAI’s site plans and activities are
subject to numerous compliance requirements from various organizations, including but not
limited to the County, MoDot, the Mine Safety and Health Administration, the Army Corps of
Engineers, and the Missouri DNR. MAI’s site plan includes a one-hundred-foot buffer around
the site, which also is surrounded by trees and hills providing visual blockage of the operations.
At the end of the operations, the mining pit will be converted into a twenty-five-acre lake. The
nearest residence is located 480 feet away from the site. The next closest residence is located at
least 850 feet away. Hootie’s is located 670 feet away with its nearest building at 1800 feet
away. MAI submitted data on projected sound impacts on neighboring residents and persons
engaging in recreational activities at Meramec River. The record contains evidence that the
sound generated by the gravel operations will be diminished due to distance, indirect paths, and
26
limited high-decibel sounds from work-day mining, which will not occur on weekends, holidays,
or evenings when recreational activities are most common. Regarding specific property
valuations, the record contains two examples of prior property sales near one of MAI’s other
mining sites. Neither sale demonstrated a decrease in property value, although the Board
acknowledged that the sales were not recent. Local property owners expressed in writing their
concerns about lower property values should the Permit be approved, and Appellants submitted
excerpts from two scholarly studies discussing the negative impact of mining operations on
property values.
Considering the full record before the Board, we do not reweigh the evidence but must
defer to the Board’s judgment on the credibility and weight accorded to the evidence. See
Karsch, 302 S.W.3d at 762 (citing Windy Point, 100 S.W.3d at 826); Kramer, 806 S.W.2d at
134. The evidence reasonably supports the Board’s decision given the remoteness of the site, its
highly regulated nature, the conditions accounting for recreational enjoyment of the Meramec
River by residents, and the speculative evidence relating to anticipated property values. The
Board was not persuaded that clear and convincing evidence existed to support Appellants’ claim
that serious injury to property values or use would result from approving the Permit. See Karsch,
302 S.W.3d at 756. We may not substitute our judgment for that of the Board. See id. (internal
citations omitted). Accordingly, the Board’s finding that the proposed gravel operations would
not seriously injure nearby property value or use does not lack substantial evidence nor is it
against the overwhelming weight of the evidence. See id.
C. No finding of incompatibility with the plan for the area
Lastly, we examine the Board’s determination that Appellants did not show clear and
convincing evidence that the gravel-mining operation would fail to conform with the County
27
master plan or exist in harmony with the area pursuant to the second jurisdictional requirement
of Reg. Section 91.
Reg. Section 135 under Article 7 of the Regulations governs non-urban and agricultural
zoning districts in the County, such as the site for the gravel-mining operation at issue in the
Permit. The purpose of such zoning districts is “to allow agricultural, recreational, wildlife,
forestry, open space, farming and related uses to mix with low-density residential development.”
Reg. Section 135(A). Reg. Section 135(C)(6) specifically allows a gravel-mining operation as
compatible with the master plan by providing for the conditional use of “[e]xtraction, quarrying,
or mining of sand, gravel, top soil, or other materials.” Because the Regulations specifically
contemplate the activities in MAI’s Permit, the record supports a finding that the Permit
conforms to the master plan. See, e.g., Greene Cty. Concerned Citizens, 873 S.W.2d at 255, 257
(noting a zoning board may grant a permit for a conditional use that is allowed for by the county
regulations and further that the zoning board’s interpretation of the county regulations is given
great weight). We then review the evidence relating to the co-existence of the proposed gravel-
mining operation with the surrounding area. The Board’s finding that the proposed gravel-
mining operation could exist in harmony with the surrounding area is supported by evidence that
MAI has other similar existing sites and has been mining material from the Meramec River for
many years as the sole supplier of this type of aggregate in the County. The site has limited
hours of operations, ending at 3:30 p.m. on weekdays and noon on twelve Saturdays a year,
minimizing the overlap with recreational activities. The Board imposed conditions on the Permit
that further sought to harmonize the operation with the surrounding environment, including
requiring floodplain-building compliance, a no-rise engineering certificate, approval by the
County Building Department, compliance with requirements of the DNR and Army Corps of
28
Engineers, as well Condition No. 9 limiting the hauling of material from the site. After
approximately thirty years of operation, the site will be left as a lake surrounded by trees with
low visibility and low sound impact on neighboring properties. The record supports our holding
that the Board did not act capriciously or go against the overwhelming weight of the evidence in
finding the Permit to be in harmony with the area and in general conformity with the County
master plan. See Karsch, 302 S.W.3d at 756; Windy Point, 100 S.W.3d at 824.
D. Summary
Having considered each of the three jurisdictional requirements of Reg. Section 91, we
do not find Board’s decision to approve the Permit was unsupported by substantial evidence or
against the overwhelming weight of the evidence. See Karsch, 302 S.W.3d at 756. Point Two is
denied.
In conclusion, the Board’s decision was authorized by law, and the Permit approval was
supported by substantial evidence in the record. See Martin Marietta Mats., Inc., 246 S.W.3d at
11. Accordingly, we affirm the Board’s decision and uphold the judgment of the circuit court.
Conclusion
The judgment of the circuit court is affirmed.
_______________________________
KURT S. ODENWALD, Judge
Philip M. Hess, P.J., concurs.
Lisa P. Page, J., concurs.
29