Citizens for Environmental Safety, Inc. v. Missouri Department of Natural Resources

12 S.W.3d 720, 1999 Mo. App. LEXIS 2131, 1999 WL 974192

• Court: Missouri Court of Appeals
• Decided: October 27, 1999
• Docket: No. 22497
• Status: Published

Opinions

KENNETH W. SHRUM, Judge.

Appellants petitioned the circuit court for judicial review of a decision by the Missouri Department of Natural Resources (“MDNR”) to issue a permit to Southwest Regional Landfill, Inc., (“SRL”) to construct a sanitary landfill. Following trial, the circuit court found, inter alia, that “MDNR’s decision [to issue the permit] was not unlawful, unreasonable, arbitrary, capricious or an abuse of discretion.” Based on this and other findings, the trial court denied the relief requested by Appellants. This appeal followed. We affirm.

SRL submitted its application for a permit to construct a sanitary landfill in Jasper County, Missouri, on April 3, 1991. MDNR issued SRL a permit to construct the proposed landfill on August 11, 1995. During the lengthy period of review, SRL amended its permit application seven times, and MDNR and SRL exchanged voluminous correspondence. Appellants opposed SRL’s application for a permit and participated in the review process by corresponding with MDNR and attending public hearings. After MDNR approved SRL’s permit application, Appellants filed a four-count petition for judicial review of MDNR’s decision to issue the permit with the circuit court. Following trial, the circuit court entered judgment in favor of MDNR. Appellants appeal the circuit court’s judgment. Appellants’ brief raises only legal issues for our determination. Consequently, we will recount additional facts only as necessary in our discussion.

STANDARD OF REVIEW

Appellants filed their four-count petition for review of MDNR’s decision under § 536.150.¹

“In cases governed by § 536.150, [i.e., noncontested cases,] the circuit court conducts a de novo review in which it hears evidence on the merits of the case, makes a record, determines the facts and decides whether, in view of those facts, the agency’s decision is unconstitutional, unlawful, unreasonable, arbitrary, capricious, or otherwise involves an abuse of discretion.”

State ex rel. Donelon v. Division of Employment Sec., 971 S.W.2d 869, 873-874[2] (Mo.App.1998). On appeal from a circuit court’s review of an agency decision in a noncontested case, we review the circuit court’s decision and not the agency’s decision. Id. at 873[1]. Because the circuit court’s review of a noncontested case is conducted as a court-tried action, our review is governed by the principles enunciated in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo.banc 1976). State ex rel. Valentine v. Board of Police Comm’rs of Kansas City, 813 S.W.2d 955, 957 (Mo.App.1991). Accordingly, we will not reverse the judgment of the trial court unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32[1]; State ex rel. Valentine, 813 S.W.2d at 958[8].

DISCUSSION AND DECISION

Point I: MDNR’s Failure to Require Compliance with § 226.720.1

In the first of three points relied on, Appellants argue that the trial court erred in finding that MDNR did not act “unreasonably, arbitrarily or capriciously in granting SRL’s permit application” because SRL is bound to construct the landfill in accordance with the terms of the MDNR permit and the permit calls for the landfill to be constructed within 200 feet of two county roads but does not require SRL to construct a fence or screen along these roads as required by § 226.720.1.²

Appellants’ argument is wholly dependent on the premise that SRL must construct the landfill in accordance with the terms of the permit issued by MDNR and that SRL cannot deviate from the terms of the permit by building anything not specifically authorized in the permit. We believe this premise is erroneous. It is true that the terms of the MDNR permit require SRL to comply with all “approved plans, specifications and operating procedures.” However, the terms of the permit do not prohibit SRL from making other improvements to or uses of the subject property. In other words, the fact that the permit issued to SRL does not require construction of fencing or screening along the county roads does not preclude SRL from doing so. In fact, the permit states:

“This permit is not to be construed as compliance with any existing Federal or State environmental laws other than the Missouri Solid Waste Management law. Nor should this be construed as a waiver for any other regulatory requirements. This permit is not to be construed as compliance with any existing local ordinances or zoning requirements nor does it supersede any local permitting or zoning requirements.” (Emphasis added.)

This disclaimer clearly recognizes the possible applicability of other laws and expressly rejects any notion that the permit excuses or demonstrates compliance with such laws. Furthermore, the permit does not, in any way, attempt to prohibit the permittee from complying with any other applicable laws.

Moreover, we note that “administrative agencies ... possess only those powers expressly conferred or necessarily implied by statute.” Bodenhausen v. Missouri Bd. of Registration for the Healing Arts, 900 S.W.2d 621, 622[1] (Mo.banc 1995); Mueller v. Missouri Hazardous Waste Management Comm’n, 904 S.W.2d 552, 557[4] (Mo.App.1995). Even the Appellants concede that MDNR is not responsible for enforcing § 226.720.1, which is part of the state highways and transportation law, administered and enforced by the Missouri Department of Highways and Transportation and the State Highways and Transportation Commission, §§ 226.005-226.020. MDNR is neither expressly nor implicitly vested with power to administer or enforce § 226.720.1; thus, we conclude that MDNR possesses no such authority.

Because SRL is not precluded from constructing fencing or screening along roadways — i.e., complying with § 226.720.1— and because MDNR is not authorized to administer and enforce § 226.720.1, MDNR’s issuance of a permit that does not expressly require SRL to comply with § 226.720.1 was not unreasonable, arbitrary, or capricious. Accordingly, Point I is denied.

Point II: MDNR’s Failure to Act Within Time Limits

In their second point, Appellants argue that “[tjhe trial court erred in concluding that the time deadlines to grant or deny SRL’s permit imposed upon MDNR by statute, regulation and MDNR’s own written policies, were merely directive, not mandatory, and that MDNR’s admitted violation of the time deadlines was not therefore, arbitrary, capricious and unreasonable .... ”

Appellants cite four ways in which MDNR’s issuance of the permit to SRL was untimely and, therefore, void. First, Appellants argue that MDNR did not issue a permit within twenty-four months after receiving SRL’s initial application (on April 3, 1991) in violation of § 260.205.2(3).³ Second, Appellants recount that in a letter dated December 3, 1993, MDNR purported to grant SRL a one-year extension of time (from the date of the letter) for SRL to conform its plans to new federal regulations. Appellants point out that SRL failed to meet the one-year extended deadline. Third, Appellants contend that MDNR violated its own regulations requiring the agency to act on a completed permit, application within 120 days. 10 C.S.R. 80-2.020(4)(A)(2). Fourth, Appellants argue that MDNR also violated its own “Expedited Permit Review Policy,” which “requires a satisfactory response to MDNR’s second technical comment or ‘the application will be denied.’ ” Appellants point out that the trial court found “SRL did not provide a satisfactory response to MDNR’s second comment letter.”

Appellants contend the trial court erroneously concluded that these four time-limiting provisions are directory rather than mandatory. The crux of Appellants’ argument is that each of these provisions use the mandatory words “shall” and “will.” They also assert that the time limits are jurisdictional, and, consequently, MDNR’s failure to comply with these time limits deprived MDNR of jurisdiction to grant a permit to SRL, rendering SRL’s permit void.

Our supreme court addressed the issue of mandatory-versus-directory provisions in Farmers and Merchants Bank v. Director of Revenue, 896 S.W.2d 30 (Mo.banc 1995). In Farmers, the court stated, “Whether the statutory word ‘shall’ is mandatory or directory is a function of context. Where the legislature fails to include a sanction for failure to do that which ‘shall’ be done, courts have said that ‘shall’ is directory, not mandatory.” 896 S.W.2d at 82 — 33[4] (citations omitted). After considering the time-limiting provisions here at issue, the trial court concluded that they were directory rather than mandatory because the provisions did not provide any sanction for a failure to comply with the time limits.

Appellants urge us to disregard the supreme court’s holding in Farmers because the “ruling ... is unsound.” Specifically, Appellants contend (1) that one of the cases cited by the supreme court in Farmers, i.e., Garzee v. Sauro, 639 S.W.2d 830 (Mo.1982), does not stand for the proposition for which the court cited it, and (2) that the Farmers holding conflicts with a previous supreme court holding, R.B. Indus., Inc. v. Goldberg, 601 S.W.2d 5 (Mo. banc 1980). We find no merit in Appellants’ assertions.

This court is constitutionally bound to follow the last controlling decision of the Supreme Court of Missouri. Mo. Const. art. V, § 2 (1945); Farm Bureau Town and Country Ins. Co. of Missouri v. Rogers, 959 S.W.2d 880, 883[1] (Mo.App.1997). Thus, we cannot disregard or revisit our supreme court’s holding in Farmers.

Further, upon analyzing the Farmers decision, we find it does not suffer from the infirmities Appellants urge. The Farmers court cited Garzee for the proposition that the word “shall” is directory where a statute does not provide a sanction for failing “to do that which ‘shall’ be done.” See Farmers, 896 S.W.2d at 33. Appellants argue that Garzee held the opposite; that is, even though the statute used the word “shall” and provided no sanction for failing to comply, the supreme court held the statute was mandatory. While Appellants’ summary of the Garzee holding is technically correct, it oversimplifies the case. The Garzee court was faced with a unique situation in which following the general mandatory-versus-directory rule would render the statute at issue unconstitutional. Garzee, 639 S.W.2d at 832. See Southwestern Bell Telephone Co., Inc. v. Mahn, 766 S.W.2d 443, 446 (Mo.banc 1989). The supreme court elected to interpret the statute consistent with our state and federal constitutions rather than follow the general mandatory-versus-directory rule. In so doing, the supreme court appears to have followed the common rule of statutory construction that an “ambiguous statute! ] ... susceptible to more than one construction should be construed in a manner consistent with the constitution.” Savannah R-III Sch. Dist. v. Public Sch. Retirement Sys. of Missouri, 950 S.W.2d 854, 858[10] (Mo.banc1997). In summary, the Garzee court was confronted with a unique interpretive problem, and the supreme court’s holding therein should not be viewed as an abandonment of the general mandatory-versus-directory rule, particularly since the court cited the rule in its discussion with no indication of disapproval. Garzee, 639 S.W.2d at 832.

We also note that Appellants’ assertion that Farmers is in direct conflict with Goldberg is erroneous. Goldberg held that a circuit court was without jurisdiction to review a state agency’s decision when the party seeking judicial review filed its petition out of time. 601 S.W.2d at 7. Goldberg considered only whether the circuit court had jurisdiction to review the agency decision, not whether the agency had jurisdiction as asserted by Appellants. Consequently, Farmers and Goldberg are not inconsistent.

Appellants also rely on State ex rel. Laidlaw Waste Systems, Inc. v. City of Kansas City, Missouri, 858 S.W.2d 753 (Mo.App.1993), for the proposition that statutory time limits imposed on state agencies are jurisdictional. Laidlaw does not aid Appellants. There, the court was required to decide whether a zoning board had the authority to reopen and rehear a case on which it had already rendered a decision. After concluding the zoning board did not have such authority, the Laidlaw court determined that the appellant’s petition for judicial review of the zoning board’s decision 'was untimely because it was filed more than thirty days after the zoning board rendered its original decision. See § 89.110 RSMo 1986. Thus, the court concluded that the circuit court was without jurisdiction to review the decision.

The Laidlaw court did state, “Time limits imposed upon administrative agencies by statute are jurisdictional. When a limit expires, the agency loses jurisdiction.” 858 S.W.2d at 756[4]. However, we do not believe this statement can be lifted from the factual context of Laidlaw. Here, we are not presented with the problem of an agency attempting to reopen a final decision. Appellants’ complaint is that MDNR’s original decision was untimely. Thus, Laidlaw is factually distinguishable from the case at bar.

For all these reasons, Farmers is controlling here.

Having examined each of the four time-limiting provisions at issue, we observe that none of these provisions provide a sanction for failing to comply with the time limits set out therein. Because we find no other overriding considerations, see Mahn, 766 S.W.2d at 446, we conclude that all four provisions should be treated as directory under the law enunciated in Farmers. We are confirmed in our view by the fact that the language of § 260.205.2(5) strongly suggests the time limits are imposed for the purpose of protecting the permit applicant — not third parties — from endless delay in the permit application review process.⁴ We hold, therefore, that MDNR’s failure to comply with the four time-limiting provisions at issue neither deprived it of jurisdiction to issue a permit to SRL nor rendered its decision to issue the permit unreasonable, arbitrary, or capricious. For all the foregoing reasons, Point II is denied.⁵

Point III: Lack of Region M Executive Board Review

In their third and final point, Appellants argue that the trial court erred in concluding that MDNR did not act unreasonably, arbitrarily, or capriciously in issuing a permit to SRL because “Section 260.820.3(1) R.S.Mo. required that the Region M solid waste management district executive board review and comment upon SRL’s permit application before the permit was issued, and the undisputed evidence shows that this review and comment did not occur.”

In pertinent part, § 260.320⁶ states:

“3. The [solid waste management district] executive board shall:

“(1) Review and comment upon applications for permits submitted pursuant to section 260.205, for solid waste processing facilities and solid waste disposal areas which are to be located within the region or, if located in an adjacent region, which will impact solid waste management practices within the region.” (Emphasis added.)

The issue for our determination is whether the phrase “applications for permits submitted pursuant to section 260.205” refers to all permit applications submitted to MDNR under § 260.205, or whether the phrase relates only to permit applications expressly required by § 260.205 to be submitted to the executive board. Appellants urge the former construction, which would require an executive board to review and comment on all applications submitted to MDNR for solid waste processing facilities and disposal areas to be located within the executive board’s region, or those to be located within adjacent regions that “will impact solid waste management practices within the region.” Appellants further contend that because the Region M executive board did not review and comment on SRL’s permit application, MDNR acted unreasonably, arbitrarily, or capriciously in granting a permit to SRL, and the trial court erred in not so finding.

The confusion seems to stem from § 260.205.4, which provides:

“Any person or operator ... who intends to obtain a permit in a solid waste management district with an approved solid waste management plan shall request a recommendation in support of the application from the executive board created in § 260.315.” (Emphasis added.)

The trial court found that the Region M solid waste management district did not have an approved solid waste management plan prior to the time MDNR issued a permit to SRL. The trial court also found that, under § 260.205.4, a permit applicant need not request a recommendation from the executive board unless the solid waste management district has “an approved solid waste management plan.” Finally, the trial court concluded that § 260.320.3(1) is not implicated if a solid waste management district does not have a solid waste management plan because § 260.320.3(1), “by its terms, is to be read in context with Section 260.205, which ... requires the Solid Waste Management District to have an approved solid waste management plan.”

We agree with the trial court’s finding that a permit applicant is not required to request a recommendation from a solid waste management district executive board unless the district has an approved solid waste management plan. § 260.205.4. We disagree, however, with the trial court’s finding that § 260.320.3(1) is not implicated unless the district has an approved solid waste management plan. The plain language of § 260.320.3(1) simply does not support that conclusion.-

“The executive board shall ... [r]eview and comment upon applications for permits submitted pursuant to section 260.205....” § 260.320.3(1). It seems clear to us that this provision refers to all permit applications submitted to MDNR under § 260.205, not just the applications of those who must request an executive board recommendation under § 260.205.4. We base this conclusion on several factors. First, had the legislature intended to limit executive board review in § 260.320.3(1) to solid waste management districts with approved solid waste management plans, it easily could have made specific reference to § 260.205.4.

Second, we find it significant that in § 260.205.4, the permit applicant is required to request a recommendation, while in § 260.320.3(1), the executive board is required to review and comment on applications. When a solid waste management district executive board is asked for a recommendation under § 260.205.4, the executive board is required to review the application to determine the impact of the permit applicant's plan on, and the plan’s conformity with, “the approved district solid waste management plan.” § 260.205.4. Consequently, the recommendation requirement is the solid waste management district’s instrument for fulfilling its approved solid waste management plan. This is logically different than a mere “review and comment” on the general propriety of a permit application, which seems to be the thrust of the executive board “review and comment” requirement in § 260.320.3(1). See State ex rel. Competitive Telecommunications v. Missouri Pub. Serv. Comm’n, 886 S.W.2d 34, 39[10] (Mo.App.1994) (“[A]ll words utilized by the legislature are presumed to have separate and individual meaning, which is essentially a presumption against redundancy.”).

Third, in construing any statute, we are “obligated to ascertain the intent of the legislature from the language used and to give effect to that intent without arriving at an absurd result.” David Ranken, Jr. Technical Inst. v. Boykins, 816 S.W.2d 189, 192[7] (Mo.banc 1991); City of Ellisville v. Lohman, 972 S.W.2d 527, 534[7] (Mo.App.1998). We believe the legislature’s purpose here, as evident from the language of §§ 260.205.4 and 260.320, is to allow for localized input and planning in the permitting of solid waste processing facilities and disposal areas. To construe these statutes as meaning that a solid waste management district executive board is to review, comment on, and recommend a permit applicant’s plan only if the district has an approved solid waste management plan would frustrate the legislative purpose of enabling regional input in the state’s solid waste processing and disposal permit review process. So long as the district did not have an approved solid waste management plan, it would have no real function in the permit review process. Such an interpretation seems absurd considering the purpose for these statutes.

For all these reasons, we conclude that § 260.320.3(1) requires solid waste management district executive boards to review and comment on all permit applications submitted to MDNR under § 260.205.⁷ The trial court erred in finding otherwise.

Nevertheless, the trial court also found that § 260.320.3(1) was directory, not mandatory, because the statute provides no sanction for the executive board’s “failure to do that which ‘shall’ be done.” Farmers, 896 S.W.2d at 33. We agree with this finding. Thus, the executive board’s failure to review and comment on a permit application does not render MDNR’s decision to issue a permit on that application unreasonable, arbitrary, or capricious.

We hold that the trial court erred in finding that an executive board’s “review and comment” under § 260.320.3(1) are required only if the solid waste management district has an approved solid waste management plan. However, the trial court correctly found that, under Farmers, § 260.320.3(1) is directory, and the failure of the Region M executive board to review and comment on SRL’s permit application does not render MDNR’s decision to issue a permit to SRL unreasonable, arbitrary, or capricious. “A bench tried judgment that reaches a correct result ... will not be set aside even if the trial court gives a wrong or insufficient reason for its judgment.” Fix v. Fix, 847 S.W.2d 762, 766[11] (Mo.banc 1993); Schmidt v. Warner, 955 S.W.2d 577, 585[11] (Mo.App.1997). Consequently, Point III is denied.

The circuit court’s judgment is affirmed.

MONTGOMERY, J., CONCURS. GARRISON, C.J., dissents in separate opinion.

1 . The trial court determined and the parties do not dispute that this was a "noncontested cáse.”

2 . References to § 226.720 are to RSMo 1994. In pertinent part, § 226.720 states:

"1. No junkyard shall be established, maintained or operated within two hundred feet of any other state or county road in this state unless such junkyard is screened from the road by a tight board or other screen fence not less than ten feet high, or of sufficient height to screen the wrecked or disabled automobiles or junk kept therein from the view of persons using the road on foot or in vehicles in the ordinary manner. ...

“2. Any person, firm or corporation who establishes, conducts, owns, maintains or operates a junkyard without complying with the provisions of this section shall, on conviction, be guilty of a misdemeanor.”

In § 226.660(4) RSMo 1994, the legislature defined the term "junkyard” to include a "garbage dump or sanitary fill.”

3 . All references to § 260.205 are to RSMo Cum.Supp.1991.

4 . In pertinent part, § 260.205.2(5) provides:

"(5) If the department fails to approve or deny an application for a permit or a permit modification within the time limits specified in subdivisions (3) and (4) of this subsection, the applicant may maintain an action in the circuit court of Cole County or that of the county in which the facility is located or is to be sited. The court shall order the department to show cause why it has not acted on the permit and the court may, upon the presentation of evidence satisfactory to the court, order the department to issue or deny such permit or permit modification.” (Emphasis added.)

We agree with the MDNR’s observation that the legislature's use of the phrase "has not acted” "suggests that [MDNR] would be called to account for why it has not acted yet."

5 . We do not view Farmers as "establishing the ironclad rule that a statute is automatically directory rather than mandatory anytime 'shall’ is used without the inclusion of a sanction for the failure to comply with it” as suggested by the dissent. We fully understand and agree that the determination as to whether the word “shall” is directory or mandatory in such situations is dependent on its context. In discussing the context here, the dissent advances several "strong reasons” why § 260.205 should be interpreted to require MDNR to promptly review permit applications. Valid though these considerations may be, we believe there are more compelling interests at stake. "[T]he preservation of the public health is recognized as a goal of the highest priority and the accumulation of garbage is a serious threat to the public health.” Craig v. City of Macon, 543 S.W.2d 772, 774[5] (Mo.banc 1976) (emphasis added) (citations omitted). Throughout human history, the menace that necessarily accompanies the unmanaged disposal of garbage, refuse, and filth has led to and intensified disease and plague. Id. at 773[1], The need for sanitary landfills is undeniable, and the establishment of new landfills is inevitable. MDNR is charged with deciding when, where, why, and how such new landfills will be constructed and operated. We question whether the health, welfare, and safety of the general public will be better served by forcing MDNR to "rush to judgment” in reviewing permit applications. Without denigrating the concerns raised by the dissent, we believe that, on balance, the "goal of ... highest priority” mentioned in Craig, i.e., preservation of the public health, dictates that decisions of such import should be made only after careful deliberation and that MDNR should be given sufficient time to ensure that the landfills it ultimately permits comport with certain minimum standards of health and safety.

6 . All references to § 260.320 are to RSMo Cum.Supp.1991.

7 . Provided, of course, that a solid waste management district executive board need only review and comment on permit applications "for solid waste processing facilities and solid waste disposal areas which are to be located within the region or, if located in an adjacent region, which will impact solid waste management practices within the region.” § 260.320.3(1).