APPEAL FROM THE CIRCUIT COURT OF FRANKLIN COUNTY. Honorable Robert D. Schollmeyer, Judge.
The challengers were represented by Maxine I. Lipeles of Washington University School of Law in St. Louis.
The county commission was represented by Mark S. Vincent and Joseph W. Purschke of the Franklin County counselor's office in Union.
Ameren was represented by William R. Price Jr., Timothy J. Tryniecki, Daniel J. Burke Jr. and James J. Virtel of Armstrong Teasdale LLP in St. Louis, and Steven P. Kuenzel of Kuenzel LLP in Washington, Missouri.
The Missouri Municipal League, which submitted a brief as a friend of the Court, was represented by B. Allen Garner of Allen Garner Law LLC in Independence.
RICHARD B. TEITELMAN, Judge
Several individuals and the Labadie Environmental Organization (Appellants) filed a petition for writ of certiorari with the circuit court challenging the legality of the Franklin County Commission's (commission) adoption of zoning amendments allowing Union Electric Company, d/b/a Ameren Missouri (Ameren) to build a coal-ash landfill adjoining its Labadie power plant. The circuit court entered judgment in favor of the commission and Ameren.
Appellants raise two points on appeal. First, Appellants argue that the circuit court erred by dismissing Count I of their petition, which alleged that the commission failed to conduct a legally sufficient hearing as required by section 64.875 prior to adopting the zoning amendments allowing coal-ash landfills. Second, Appellants argue that the circuit court erred in entering judgment in favor of the commission and Ameren on Count II, which alleged that the zoning amendments are invalid for failing
to promote public health, safety, and welfare.
This Court holds that the circuit court erred in dismissing Count I of Appellants' petition asserting that the commission failed to conduct a legally sufficient hearing prior to adopting the zoning amendments. Consequently, it is unnecessary to determine whether the zoning amendments promote public health, safety and welfare because the circuit court must first determine whether the commission conducted a legally sufficient hearing. The circuit court's judgment is reversed, and the case is remanded.
Appellants filed a petition for a writ of certiorari pursuant to section 64.870.2 challenging the commission's amendment of the Franklin County Unified Land Use Regulations to permit the construction of coal-ash landfills " contiguous to the boundary of the property upon which a public utility power plant is situated." Count I alleged that the commission's adoption of the amendments was unlawful because the commission failed to conduct a valid public hearing as required by section 64.875. Count II alleged that the zoning amendments are unlawful because they do not promote the health, safety, and general welfare of the citizens of Franklin County.
In their petition, Appellants alleged that Ameren publicly announced a proposal to build a coal-ash landfill on the land it had recently acquired near the Labadie plant. Appellants alleged that Ameren's Labadie plant is the only public utility power generation plant in Franklin County and, per the proposed zoning amendments, the only possible location for the coal-ash landfill. Appellants alleged that the chairman of the Planning and Zoning Commission informed the speakers at the public hearing that they could not discuss Ameren or its proposed site for a coal-ash landfill near the Labadie power plant. Appellants further alleged that the chairman not only told the speakers to not discuss Ameren or the Ameren site, but that county officials actually " interrupted speakers when they attempted to discuss Ameren's proposed Labadie landfill site ...." Finally, Appellants alleged that the commission acted unlawfully and unreasonably by adopting the landfill zoning amendments without holding a legally sufficient hearing as required by section 64.875 and article 14, section 321 of the unified land use regulations of Franklin County.
After the petition was filed, the circuit court issued a writ of certiorari to the commission, directing it to provide the court with a certified copy of the complete record pertaining to the commission's decision. Ameren filed a motion to intervene on the ground that Appellants' challenge to the zoning amendments was a challenge to Ameren's " right to create, operate, and maintain a utility waste landfill" on its property adjacent to the Labadie power plant. The circuit court sustained Ameren's motion to intervene.
In January 2012, the commission filed its return and certified the record of its proceedings to the circuit court. In February 2012, the commission and Ameren filed motions for judgment on the pleadings pursuant to Rule 55.27(b) or, in the alternative, ...