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.
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 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.
Last week, a three-judge panel of the United States Court of Appeals for the Fourth Circuit ruled that the U.S. Forest Service violated federal law by issuing permits for a gas pipeline to cross through the George Washington National Forest, the Monogahela National Forest, and the Appalachian National Scenic Trail. The ABA Journal, NPR, The Washington Post, and numerous other outlets have all provided coverage.
While Great Rivers was not involved in the case, Great Rivers’ staff and volunteers were excited to read about the ruling and the court’s reference to The Lorax by Dr. Seuss.
The case revolves around a gas pipeline project, led by Dominion Energy, that would run through the national forests and the Appalachian Trail. In late 2017, the Forest Service issued a “special use permit” and formal decision authorizing the project. Construction would involve “clearing trees and other vegetation from a 125-foot right of way (reduced to 75 feet in wetlands) through the national forests, digging a trench to bury the pipeline, and blasting and flattening ridgelines in mountainous terrains.” Once completed, the project would require “maintaining a 50-foot right of way (reduced to 30 feet in wetlands)” through the national forests for the life of the pipeline.
In February, Southern Environmental Law Center and the Sierra Club challenged the permits and right of way on behalf of environmental groups. The court had to decide whether the Forest Service violated the National Forest Management Act, the National Environmental Policy Act, and/or the Mineral Leasing Act in issuing the permits.
The court found that the Forest Service lessened certain environmental protections simply because the company could not meet those requirements, and doing so violated the National Forest Management Act:
“[t]he lengths to which the Forest Service apparently went to avoid applying the substantive protections of the 2012 Planning Rule—its own regulation intended to protect national forests—in order to accommodate the [pipeline] project through national forest land on [the gas company’s] timeline are striking, and inexplicable.”
Cowpasture River Pres. Ass’n v. Forest Serv., No. 18-1144, 2018 U.S. App. LEXIS 35060, at *80 (4th Cir. Dec. 13, 2018) (emphasis added), available online here.
According to the court, the Forest Service violated the National Environmental Policy Act by failing to “take a hard look at the environmental consequences of the project.” Specifically, the Forest Service abandoned its request for ten site-specific studies to analyze landslide, erosion, and water quality risks.
It also violated the National Forest Management Act and the National Environmental Policy Act by not analyzing whether there were reasonable alternative routes off of national forest lands. The court seemed especially skeptical since the Forest Service had initially requested—and re-requested—that the Federal Energy Regulatory Commission perform a full analysis of alternative routes, but it later abandoned—without explanation—the request. The court believed this was done to circumvent congressional approval.
The court also said the Forest Service had no statutory authority under the Mineral Leasing Act to grant pipeline rights of way across the Appalachian Trail.
The court concluded its 60-page decision with a Dr. Seuss quote:
“We trust the United States Forest Service to ‘speak for the trees, for the trees have no tongues.’ Dr. Seuss, The Lorax (1971). A thorough review of the record leads to the necessary conclusion that the Forest Service abdicated its responsibility to preserve national forest resources. This conclusion is particularly informed by the Forest Service’s serious environmental concerns that were suddenly, and mysteriously, assuaged in time to meet a private pipeline company’s deadlines.”
Interestingly, this is not the first time a court has quoted The Lorax. On Earth Day in 2015, an Iowa Court of Appeals judge cited The Lorax in a footnote when it considered Lackman v. Muff—a case about the value of trees.
Like these courts, Great Rivers and its leaders know that it’s important to “speak for the trees.” That’s why environmental steward and former Great Rivers board member, Tom “Yusha” Sager, used to read The Lorax to children at Columbia’s annual Earth Day Festival and would conclude by telling the children that Great Rivers Environmental Law Center is like the Lorax, and speaks for the trees.
Great Rivers is glad to see members of the bench find wisdom in Dr. Seuss’s words, and we encourage everyone to read and implement the message of The Lorax.
After all, “unless someone like you cares a whole awful lot, nothing is going to get better. It’s not.” Dr. Seuss, The Lorax (1971).
Written by Rachel Harris, a member of Great Rivers' Young Professionals Board
Photo: Pat Jones, upon receiving the Lewis C. Green Environmental Service award from Great Rivers in 2006 for her longtime commitment to the preservation of the environment.
I was privileged to spend time with Hilda “Pat” Jones over the last fifteen years. Through my work at Great Rivers Environmental Law Center, I got to know Pat, as she was passionate about the environment and a supporter of Great Rivers, as well as many other wonderful nonprofits across the region.
In 2004, Pat became active in trying to save the Katy Trail, which she and her late husband Ted had enabled the state to purchase with their generous $2.2 million gift to the state. Governor Matt Blunt received campaign contributions from Union Pacific in 2004, and suddenly ordered the Missouri Department of Natural Resources (DNR) to surrender the bridge easement rights to Union Pacific. The DNR director then signed away those rights that Ted and Pat had purchased for the people of Missouri. Given the price of steel at the time, this amounted to an unreported windfall gift worth more than $10 million from Governor Blunt to Union Pacific.
Pat became a plaintiff in Great Rivers’ lawsuit against the state of Missouri to save the Katy Trail. Although the court ruled against us, the Katy Trail was saved and is still a huge attraction to people from all across the nation.
More recently, Pat again spoke out trying to preserve bluffs on the Missouri River that are adjacent to the Katy Trail. In her Letter to the Editor, published in the St. Louis Post Dispatch on December 16, 2017, she objected to the proposed sale of University of Missouri-owned land near Weldon Spring to a housing developer. She said, “This sale would require rezoning from agricultural to residential, a measure that would destroy the iconic view of the Missouri River and take away the natural experience of the Katy Trail hikers and bicyclists…The influx of homeowners would distract again from the nearby August A. Busch Conservation Area and mar the natural landscape that my late husband, Edward ‘Ted’ Jones Jr., and I worked so hard to retain for future Missourians. It was my understanding that the university teaches good land stewardship. I feel with the sale of this natural area the university no longer practices what it teaches.” Unfortunately the University did not listen to her.
Pat was greatly disappointed in electric utility companies that built transmission lines across the land that her mother had given to the state of Missouri for preservation and enjoyment of future generations. And she was greatly disappointed that Missouri continues to rely on coal for 80% of its energy consumption. She understood the science of climate change and could see how coal is destroying the planet. She promoted hydrogen energy, penning a “Suggestion of Technology that could help meet the Needs of Energy and Water without contributing to Global Warming.” She said, “1. Generate electricity using wind farms placed over salt water. 2. Use this electricity to separate the water into hydrogen, oxygen and salt. 3. Sell the salt as sea salt. 4. Use a pipe line to transport the hydrogen to areas that need electric power. 5. Use fuel cells to generate electricity and water. 6. Sell both water and electric power.”
Often when I visited Pat she would offer me some of a tasty bean and tomato dish that she cooked. The secret, she taught me, was to use the spicy cans of diced tomatoes! Pat had unlimited tolerance of spicy foods. We often discussed walnuts, and recipes for walnut pies. Pat told me stories of her family, such as when she was little, her father would put the family and canoe on the train and they would all ride the train to the Meramec where they would get off and float, and stay at their house in the country. Her grandfather was a Congregational Minister, having had to leave a different faith because of his anti-slavery beliefs. Pat told me she used to beat Ted when they played Monopoly! This made me think maybe she was a big help behind the scenes to Ted in his work.
Missouri has lost a state treasure with the passing of Pat. She did so much to preserve the environment and public health, all the while keeping her hope and sense of humor while observing things get worse in recent years. The world needs more people like Pat, who are not afraid to stand up for clean air, energy and water, and a healthy environment.
Kathleen Henry, President, Great Rivers Environmental Law Center
This December, on behalf of the Missouri Coalition for the Environment (MCE) and Carolyn Johnson, a resident of Stoddard County, Great Rivers Environmental Law Center appealed a trial court’s ruling on a case from 2016. In 2016, Great Rivers filed suit in Cole County Circuit Court against the State of Missouri over its passage of House Bill 1713 in (HB 1713), which upset the balance between the public interest and regulated interests at the Clean Water Commission. The Commission enforces the federal Clean Water Law and grants permits to Concentrated Animal Feeding Operations (CAFOs).
Previously, four of the seven members of the Commission had to represent the public interest and no more than two members could represent agricultural, mining and industry. HB 1713 lets agriculture take as many as six of the seven seats on the Commission and the public as few as none. Five of those six are now taken by members connected to corporate factory farms, with one seat being vacant.
The Missouri Coalition for the Environment and Ms. Johnson challenge the bill because the way the legislature passed it in 2016 was unconstitutional. The bill was originally about “wastewater treatment systems,” so it was misleading to add such a wide-reaching change to the bill as the composition of the Commission. However, the Court ended up dismissing the lawsuit because the plaintiffs did not have “standing” to sue; in particular, none of their tax money was spent on the Commission. They are now taking the case to the Missouri Supreme Court on appeal.
“All citizens of Missouri have an interest in a legislature that follows the Constitution when it passes laws,” said Henry Robertson, Great Rivers’ attorney for the parties.
“We are pursuing all options because the General Assembly shouldn’t be able to make substantial changes to the Clean Water Commission without public hearings and public input, which is what happened with this bill,” said Ed Smith, Policy Director of MCE.
“Missouri citizens rely on the legislature to represent all interests and not be in the pockets of narrow agricultural interests,” said Carolyn Johnson. “The legislature failed to fairly represent the citizens and failed to protect natural resources when they passed this bill.”
Great Rivers is a nonprofit public interest environmental law firm in St. Louis that provides free and reduced-fee legal services to those working to protect the environment and public health. Its web address is: www.greatriverslaw.org.
The Missouri Coalition for the Environment, a nonprofit, nonpartisan, 501(c)(3) state-level conservation organization, is a force for clean air, clean water and clean energy in Missouri. Since 1969 it has educated and activated Missourians to protect the land we all love. Its web address is: www.moenvironment.org.
We don’t often brag, but today we’re going to! Over the course of 2018, we’ve received so much recognition for our work. We’re proud of one another for our accomplishments… and we’re grateful to you, because you are our inspiration and your support is what allows us to do what we love!
In 2018, Great Rivers and our staff have received the following recognition:
Bruce Morrison, General Counsel, was selected by US News & World Report and BestLawyers as one of St. Louis’ “Best Lawyers” in the category of environmental litigation. He has received this distinction annually since 2012!
Sarah Willey, Director of Development and Community Outreach, was honored by the Association of Fundraising Professionals as the 2018 Outstanding Young Professional at their National Philanthropy Day event in November.
Henry Robertson, Climate and Energy Director, was awarded the Open Space Council’s President’s Award for the research and work he did to help protect Creve Coeur Park and pass Proposition 2 to defend St. Louis County parks from sale or development without a vote of the people.
Additionally, our organization was a finalist for the Outstanding Nonprofit Organization Award at the Young Nonprofit Professionals’ 2018 Standing Ovation Awards.
We are humbled by the outpouring of recognition we’ve received this year. It is easy to do outstanding work when you’re fortunate enough to have a job that aligns with your passion. In reality, our clients, our volunteers, and our donors deserve an award! It is because of your support, your work, your trust in us that we are able to shine, and to make a positive impact on the state and beyond. Thank you!
Today is #GivingTuesday. As the Black Friday and Cyber Monday deals end, we turn out attention to giving in our community. One of the clients you enabled us to serve this year wants to share how generosity from donors like you impacted him this year. After reading his letter, please consider a donation using the link below!
Everyone should be concerned with public health, no matter where we live. Supporting people and businesses that take water contamination, land management issues, deforestation and urban sprawl seriously is important. Great Rivers Environmental Law Center (GRELC) is one example of an organization that puts these topics at the forefront of their mission. For me personally, GRELC has helped our citizens activist group win an important rezoning issue that could have impacted Sugar Creek Valley located in Kirkwood, MO.
When our grass roots group, Save Sugar Creek (http://www.savesugarcreek.com/), got involved with an important rezoning issue, we quickly learned that we required an organization like GRELC to step in and guide us on how to win our case. Going up against a Planning and Zoning Committee and then City Council was a daunting task. GRELC made it very easy for us to develop a clear plan, organize ourselves, and obtain the results we needed to block the potential overdevelopment and destruction of Sugar Creek Valley.
Kathleen Henry and her experienced team were outstanding to work with, supportive of our initiative, knowledgeable of city and state laws, and made it easy to guide our group with full engagement. Her team not only gave us specific direction on the real impact of overdevelopment, but also provided the legal advice necessary to navigate the City Council processes. Without GRELC, I am sure we would have been defeated.
Our group has also supported GRELC with important financial donations so they can help others that are facing similar challenges. GRELC continues to work with other citizens groups, educates state officials on clean energy, and works diligently to protect state parks just to name a few. Your financial support is important in helping GRELC protect our environment and public health for generations to come. Please consider donating to this important organization because, as Wendell Berry once said, “The Earth is what we all have in common.”
A.C. Marchionne, MS, MBA
To make a #GivingTuesday donation, CLICK HERE.
Citizens in Hillsboro, MO, have been working hard to preserve the air and water quality as well as the landscape near their homes since learning earlier this year of a developer’s plans to build a silica sand mine. On October 11, 2018, Great Rivers Environmental Law Center filed a motion seeking to intervene on behalf of adjacent landowners in a lawsuit brought by the developer against Jefferson County, after the County denied the developer’s application to build a silica sand mine in an agricultural and residential area in Hillsboro. The silica sand would be used for fracking, which is the process of drilling down into the earth before a high-pressure water mixture is directed at the rock to release the gas inside. Water, sand and chemicals are injected into the rock at high pressure which allows the gas to flow out to the head of the well.
The County had denied the application for many reasons, including that the proposed mine would destroy the tranquility and quality of life for residents in the neighborhood, the mine would cause an increase in traffic, noise, dust, health hazards and stormwater runoff to the surrounding residential area, and the mine would cause increases in noise, water and air pollution.
Adjoining and adjacent neighbors seek intervention in the lawsuit to protect their interests. “We are opposed to the silica sand mine because it will negatively impact our residential neighborhood and change our way of life. Every day when we look out of our windows, open our front door, sit on our porch, or work in our yard we will experience the noise, destruction of nature, and pollution that mining silica sand causes. We are fearful that our home will be damaged, our well water polluted or lost, and our health will be threatened,” said JoAnn Enloe, an adjacent landowner.
Adjoining neighbor Suzzanne Bouchard’s entire eastern border of her property abuts the proposed silica mine property. A large portion of the bordering land is held under conservation easements by the Ozark Regional Land Trust.
“Silica mining would put in jeopardy the environment, water, wells, land, pastures, forests and animals as well as cliffs, houses, outbuildings and peace of mind. The health, safety, and welfare of my neighbors, also adjoining properties, and individuals I consider family, all of us, will be put at risk,” said Suzzanne Bouchard.
“Jefferson County stood up for the health of its citizens,” said Kathleen Henry, attorney at Great Rivers Environmental Law Center. “The Planning and Zoning Commission and County Council had dozens of valid reasons for denying a permit to build a silica mine in a residential area and the applicant should not be permitted to mine silica in this location.”
The motion to intervene is set for hearing November 2, 2018 in the Jefferson County Circuit Court.
Great Rivers is honored to receive a generous grant of $10,000 from the Employees Community Fund of Boeing to support our work to bring environmental justice to the residents of North St. Louis. These funds will help us continue and expand our work to ensure that businesses have proper air and water pollution permits and to comment on any permit renewals or modifications that will allow for unacceptable levels of pollution. The life expectancy in the areas we are working is 10 years less than other parts of St. Louis, and there are higher rates of hospitalization, asthma, cancer, and other health concerns. By fighting alongside the community to keep air and water clean, we can impact these statistics.
The Employees Community Fund of Boeing St. Louis is a 501(c)(3) nonprofit that is a separate legal entity from The Boeing Company. It is run and financed by the employees of Boeing. We are grateful to the members of the board and to all of the employees who contributed to make this gift possible!
Last year, I joined the Young Professionals Board of Great Rivers Environmental Law Center. As a former intern, I just couldn’t pass up the opportunity to re-connect. After all, President Kathleen Henry took me to a robot convention on the last day of my internship!
I don’t remember how I learned about the Young Professionals Board. But I remember thinking the fact that Great Rivers even has a Young Professionals Board is a testament to its unyielding commitment to promote, preserve, and protect the environment. Because in order to do that for generations to come, an organization has to integrate future generations.
Sadly, according to the 2017 BoardSource Nonprofit Board Practices, less than 17% of nonprofit board members are under 40 years old and most nonprofits do not have a young professionals board.
But Great Rivers is different.
Not only does it have a committed Board of Directors, but it also has a selfless and committed staff who have welcomed the young professionals with open arms. Director of Development, Sarah Willey, works alongside our young professionals daily, and attorneys Kathleen, Bruce, Henry, and Bob regularly appear at events in support of the young professionals.
Their commitment hasn’t gone unnoticed. Recently, the Young Nonprofit Professionals St. Louis Chapter announced Great Rivers as a finalist for the Outstanding Nonprofit Organization Award.
As a member of the Young Professionals Board, you provide integral support to the organization’s mission and programs.
But we do this while having a lot of fun.
Our meetings are effective and organized but relaxed and enjoyable. At every meeting, the staff members share key updates on the cases they’re working on and the issues they’re researching. They then look to us for input on strategies and suggestions.
We laugh. We talk about our lives. We drink beer.
When you join our team, you’re joining a group of fun people with a diverse array of professional backgrounds: from marketing and data management to asbestos remediation and legal work. You’ll get the opportunity to meet new people and interact with individuals who likely aren’t in your current professional network. By expanding your network in this way, you’ll discover new mentors and professional opportunities you might not otherwise discover.
You already have a background and skillset that would be a tremendous asset to Great Rivers. When you join our team, you’ll be able to enhance that skillset or carve out opportunities to explore new skills. There are always opportunities to help with membership development, fundraising, event planning, and project management. But you can also identify specific projects that you want to handle in order to bolster your long-term professional goals.
For example, a young professional looking to build experiences in the nonprofit sector could initiate a new donor campaign or undertake to write a specific grant application. A young legal professional looking to build board governance experience could volunteer to review and revise the By-Laws. A young marketing professional could write SEO-optimized copy for the Great Rivers website.
Whatever your interests, there are opportunities to learn new skills and try new things.
When you join the young professionals board, you’re supporting Missouri’s first and only public interest law firm focused on the environment and public health. Think of it this way: there aren’t many law firms that are 501(c)(3) non-profit organizations and even less that are devoted to environmental issues.
While other organizations may use educational campaigns and lobbying efforts to protect the environment, Great Rivers Environmental Law Center has the unique ability to use the justice system—working through municipal, trial, and appellate courts and administrative agencies—to enforce and enhance environmental laws and protections.
The team at Great Rivers has been doing exactly that for the last 16 years, setting unprecedented court and community victories, like our recent climate change victory in the Missouri Supreme Court or our Sugar Creek rezoning victory in the Kirkwood City Council.
Joining our team is easy.
To start, fill out an application. Someone from our team (maybe even me!) will be in touch to set up a time to grab coffee (on us!). The coffee chat is your opportunity to ask us questions and make sure this commitment is something that you want to do. We’ll also chat through what comes next in terms of joining, upcoming events you may be interested in, and your long-term professional goals.
If you ever have any questions, we’re only an email away.
The Young Nonprofit Professionals St. Louis Chapter announced the finalists for their annual Standing Ovation Awards today, and Great Rivers is honored to be listed as a finalist for the Outstanding Nonprofit Organization Award.
The awards will be presented at an event on Thusday, September 20th, 2018. The winners in each category will be announced at the event.
Great Rivers is honored to be selected as a finalist, and our staff look forward to attending the event next month and learning who will take home the award!