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Cooper v. The Henry County Commission

Court of Appeals of Missouri, Western District, First Division

September 19, 2017

SHANNON COOPER, et al., Respondents,

         Appeal from the Circuit Court of Henry County, Missouri The Honorable Jerry J. Rellihan, Judge

          Before: James E. Welsh, Presiding Judge, Thomas H. Newton, Judge and Gary D. Witt, Judge

          GARY D. WITT, JUDGE

         The Henry County Commission ("Commission") appeals from an amended judgment ("Judgment") vacating a section of two county roads. The Judgment reversed the Commission's decision to deny a Section 228.110 application to vacate approximately one mile of County Road 901 and County Road 500 filed by Charles Shannon Cooper ("Cooper"), Stan Hilty ("Hilty"), Stephen Smith ("Smith"), and Rockwell Journey ("Journey") (collectively as "Landowners").[1] The Commission alleges that the trial court erred in failing to make specific statutory findings and the Judgment was not supported by substantial evidence. We affirm.

         Factual Background

         The section of county roads at issue include parts of County Road 901 and County Road 500 ("Roadway"), which join each other and connect Missouri State Highway 7 to Missouri State Highway DD. The land on both sides of the Roadway is primarily owned by one entity, Pin Oak Flats, LLC, which is co-owned by Julius Wall ("Wall") and Hilty. Another property owned by Darrell Sell ("Sell") is located at the south end of the Roadway but has access to Missouri State Highway 7 over the remaining portion of the road which is not being vacated. Sell is not a party to this action. The Roadway is a single lane dirt road approximately one mile in length.

         The Landowners filed a petition requesting the Commission to vacate the Roadway on September 29, 2015. On January 5, 2016, the Commission held a public hearing, after which they denied the petition. On February 1, 2016, the Landowners filed a "Petition for Judicial Review" in the trial court for review of the Commission's denial of the Landowner's application. A trial was held on October 20, 2016 in the Henry County Circuit Court.

         At trial Wall testified that the Roadway is predominately used by himself, Hilty, and others associated with Pin Oak Flats. Wall and other nearby property owners testified that the Roadway is also used by trespassers to access Pin Oak Flats's property in order to poach wildlife, dump trash, and steal. A cabin that sits along the Roadway has been burglarized on a number of occasions and power lines have been stolen off the property for the copper wire. The Roadway is also used by drag racers and is a prominent location for illegally disposing of trash and other debris. An abandoned car has sat along the side of the Roadway for six to eight years. The Roadway is also used by Sell for getting his large farm equipment onto his property in a way that avoids his having to back his farm equipment onto Missouri State Highway 7, which can be dangerous. A member of the Township Road Board testified that the Township residents did not use the Roadway to get to their homes, farms, or places of work, and that it serves no useful function.

         The Secretary of the Township Road Board testified that the Roadway is graded approximately once a year because parts of County Road 901, which are not included in the Roadway, must be graded and the blade is left down while traveling on the rest of the road. The Roadway has not been graveled since 2004, and vegetation grows in the middle and on the sides of the Roadway. After the petition by Landowners was filed, Henry County did some road repair. Henry County billed the Township Road Board for this repair work and then paid the cost of the repairs out of the gas tax money the county pays annually to the Road Board without anyone on the Road Board's knowledge. The only other maintenance on the Roadway since 2004 has been mowing of the vegetation performed by Henry County, and the Township Road Board has spent no money on the maintenance of the Roadway in over ten years. A member on the Township Road Board testified that other roads receive more maintenance than the Roadway because they "are actually used by [the] residents." Wall and Cooper also testifies that two of the three members of the Commission had stated that they were instructed at a Missouri Association of Counties meeting that county commissions should not vacate any more roads.

         Judgment was entered on December 19, 2016, vacating the Roadway but requiring the Landowners to construct a culvert across a ditch to serve as a turnaround access point for Sell's use for his farm equipment. The Commission timely appeals.

         Standard of Review

         Judicial review of a commission's decision to vacate or refuse to vacate a public roadway is under the standard set forth for administrative review of a noncontested case. Ard v. Shannon County Comm'n, 424 S.W.3d 468, 472-73 (Mo. App. S.D. 2014). The trial court in review of a noncontested case pursuant to section 536.150 "does not review the record for competent and substantial evidence, but instead conducts a de novo review in which it hears evidence on the merits, makes a record, determines the facts and decides whether the agency's decision is unconstitutional, unlawful, unreasonable, arbitrary, capricious or otherwise involves an abuse of discretion." City of Valley Park v. Armstrong, 273 S.W.3d 504, 508 (Mo. banc 2009). "The circuit court does not defer to facts found or credibility assessed by the agency and need not conform doubtful evidence to the agency's decisions." Id. "The circuit court in a noncontested case acts to determine the evidence and give judgment from that evidence." Id.

         This Court reviews "the judgment of the circuit court, rather than the decision of the administrative agency." Ard, 424 S.W.3d at 473. This Court "reviews the circuit court's judgment to determine whether its finding that the agency decision was or was not unconstitutional, unlawful, unreasonable, arbitrary, capricious, or the product of an abuse of discretion rests on substantial evidence and correctly declares and applies the law." Mo. Nat. Educ. Ass'n v. Mo. State Bd. of Educ., 34 S.W.3d 266, 275 (Mo. App. 2000). "This standard requires an appellate court to accept the trial court's credibility determinations and view the evidence in the light most favorable to the judgment, while disregarding all contrary evidence and permissible inferences." Ard, 424 S.W.3d at 473.


         The Commission raises five points on appeal. As there is substantial overlap between points One and Two, we discuss them as one point. Points ...

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