Planning and Zoning Commission Makes Decision Akin to Calling an Apple an Orange;
Says Franklin County can call Anything Whatever It Wants

For the third time, Great Rivers Environmental Law Center is representing citizens in Franklin County who are fighting their zoning commissions, urging them to deny an application filed by a developer to build a concrete batch plant on land near residences and the world-renowned Missouri Botanical Garden’s Shaw Nature Reserve.

View of a local yard with tree-covered hills in the background near the proposed concrete plant site.

Landvatter Enterprises, LLC, proposes to build a ready-mix concrete plant on tree-covered hills just 600 feet from the Nature Reserve in Franklin County. There are dozens of houses and apartments in the area between the Nature Reserve and the proposed plant. The homeowners believe the proposed plant will cause them to breathe in dust, suffer from noise and increased traffic, and believe that the wildlife, fish, birds, flora and fauna in the Nature Reserve will also suffer from the plant.

Great Rivers has been representing the citizens since 2014, when the developer first filed an application for a conditional use permit to build the concrete plant. The Planning and Zoning Commission (P & Z) and Board of Zoning Adjustment (BOZA) granted the permit. Citizens challenged that permit in court because a member of BOZA spoke at the P & Z hearing, and that member was the real estate agent for the buyer and seller of the land proposed to be rezoned, and stood to make a profit. The trial court refused to throw out the lawsuit, so in March of 2015, the developer withdrew the application, and shortly after filed a new application seeking a rezoning, and not a conditional use permit, for the same plant. The land is zoned “Community Development;” the County now says that by rezoning it to “Commercial,” any type of industry can build a plant as a regular use in a commercial district.

At the hearing for this new application in 2015, the developer was allowed to make a case for rezoning, but the local residents who came to speak against it were not given an opportunity to have their voices heard. We took the County to court, and in 2018 the Court of Appeals ruled that the P &Z deprived citizens of due process by failing to allow them to speak at a public hearing before the commissioners voted.

Great Rivers staff Kathleen Henry and Sarah Willey along with just some of the residents who showed up at a Franklin County Planning and Zoning Commission hearing in November 2018 to oppose rezoning to allow a concrete plant near their homes.

This time around, the developer again seeks a rezoning. The P & Z held a hearing on November 20, and many residents as well as two of Great Rivers’ staff spoke against it. However, on December 18, the P & Z voted 6-1 to grant the application. The P & Z’s recommendation now moves to the County Commission for its approval. Since the County Commission affirms recommendations from the P & Z 92% of the time, the citizens don’t expect the County to change its ways.

Kelly Brothers Mason, a resident whose house sits right in between the Nature Reserve and the proposed concrete plant, said, “This concrete plant should not be built here; it should be in an industrial park. The P & Z Commissioners, who are not elected and do not ever discuss the homeowners’ situation, keep greenlighting this terrible project. They don’t care that our property values will plummet and that the wildlife and birds that depend on the Nature Reserve will suffer.”

In their appeal to the Zoning Commissions, Citizens argue that the rezoning is illegal because the County is allowing industrial plants in commercially zoned districts without requiring them to obtain special permits. Franklin County has a district called “industrial,” and other concrete plants in the County have that designation, but this plant would be “special,” and would be called “commercial” and not “industrial.”

When the Citizens brought this up at the hearing on November 20, the County responded by saying it can label things how it likes. Labeling concrete batch plants as “commerce” and not “industry” is like calling apples oranges. Never mind that the Dictionary clearly distinguishes between apples and oranges, and commerce and industry: Franklin County says it can make up its own definitions!

The Citizens also argue that the rezoning is invalid because it violates Franklin County zoning codes and state and federal law since the proposed concrete plant would endanger public health and safety and decrease the value of adjoining property, and illegal because the Planning and Zoning Commission failed to provide notice before holding the hearing. None of the people who complained at the past hearings received postcards, although the County did mail them to other people.

“No County should be able to call an apple an orange and get away with it. If the County is allowed to get away with this, any industry could build a polluting plant in a commercial district without seeking a special permit. The County fails to protect human health by letting this happen,” said Kathleen Henry, attorney at Great Rivers Environmental Law Center.

The citizens will request the County Commission to reject the recommendation of the Planning and Zoning Commission at a hearing to be held in January or February 2019.