County Commission Makes Decision Akin to Calling an Apple an Orange; Says Franklin County can call Anything Whatever It Wants
For the third time, citizens in Franklin County are forced to take their County to court to get the courts to overturn a rezoning granted to a developer to build a concrete batch plant on land near residences and the world-renowned Missouri Botanical Garden’s Shaw Nature Reserve. On March 12, 2019, the County Commission voted 3 – 0 to approve the recommendation of the Planning and Zoning Commission allowing this plant to be built near residences.
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.
This time around, the developer again sought a rezoning. The P & Z held a hearing in November, and many residents as well as two of Great Rivers’ staff spoke against it. In December, the P & Z voted 6-1 to grant the application. The County Commission held a hearing on the plant on January 31, 2019. Again several citizens spoke against it, as well as the Director of the Shaw Nature Reserve, Quinn Long. Dr. Long said the plant would detract from the Nature Reserve and not be in harmony with the area.
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 County Commissioners, who 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.”
The County ignored the residents for the sixth time and voted for the rezoning on March 12.
In their appeal to the courts, the citizens will 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. Labelling 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!
“Courts sometimes use the ‘duck’ test, said Kathleen Henry, attorney at Great Rivers Environmental Law Center. “If a think walks like a duck, talks like a duck, and acts like a duck, a court will find it is a duck. This concrete plant walks like heavy industry, talks like heavy industry, and acts like heavy industry. The County should not get away with calling industry commerce.”
The citizens will request the trial court to reverse the rezoning granted by the County.