SUPREME COURT OF MISSOURI en banc
RUTH CAMPBELL, ET AL., ) ) Appellants, ) ) vs. ) No. SC94339 ) COUNTY COMMISSION OF ) FRANKLIN COUNTY, ) ) Respondent, ) ) and ) ) UNION ELECTRIC COMPANY, ) d/b/a AMEREN MISSOURI, ) ) Respondent. )
APPEAL FROM THE CIRCUIT COURT OF FRANKLIN COUNTY Honorable Robert D. Schollmeyer, Judge
Opinion issued February 3, 2015
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 1 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. 2
I. Facts
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
1 All statutory citations are to RSMo 2000. 2 After an opinion by the court of appeals, this Court granted transfer. Mo. Const. art V., § 10. This opinion incorporates, without further attribution, rationale set forth in opinions authored by the Honorable Lisa Van Amburg and the Honorable Patricia Cohen of the Missouri Court of Appeals, Eastern District. “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.
3 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, to dismiss for failure to state a claim upon which relief can be
granted pursuant to Rule 55.27(a)(6). 3 The motions to dismiss asserted that
Appellants failed to state a claim for relief because the allegations in the petition
demonstrated that the commission conducted a legally sufficient hearing. In April
2012, while the motions to dismiss were pending, Ameren and the commission
moved for appointment of a referee to take additional evidence. The court
3 Under the common law, issuance of a writ of certiorari must be challenged by filing a motion to quash, sometimes referred to as “motion to dismiss” or “motion to recall the writ.” See State ex rel. Powell v. Shocklee, 141 S.W. 614, 616 (Mo. 1911); see generally 14 C.J.S. Certiorari § 69-85 (2014) (discussing motion to quash or dismiss writ of certiorari). No provision in section 64.870 alters this procedure. For purposes of this appeal, the motions to dismiss Count I are treated as common-law motions to quash the writ. See State ex rel Modern Fin. Co. v. Bledsoe, 426 S.W.2d 737, 740 (Mo. App. 1968) (treating motion attacking issuance of writ as motion to quash).
4 overruled these motions. In May 2012, the circuit court entered an order
sustaining the motions to dismiss.
Although the court sustained the motions to dismiss Count I, the allegations
in Count II remained unresolved. In July 2012, the circuit court set a deadline for
the parties to file objections to the record. In September 2012, months after
sustaining the motions to dismiss, the court issued an order resolving all issues
regarding the scope of the record. The County filed its corrected record in
October 2012. Finally, in January 2013, after briefing and argument by the
parties, the circuit court rejected Appellants’ claim in Count II and determined that
the zoning amendments were valid. This appeal follows.
II. Standard of Review
The parties disagree on the standard of appellate review regarding
Appellants’ claim that circuit court erred by dismissing Count I. Appellants assert
that this Court’s review of the circuit court’s judgment dismissing Count I is
limited to reviewing the petition to determine whether Appellants asserted a valid
claim that the commission failed to conduct a legally sufficient hearing as required
by section 64.875. In contrast, Ameren asserts that this Court’s review is limited
to the commission’s decision and that this Court should review the factual record
and determine not only whether Appellants stated a claim but also whether Count I
has merit. In short, Appellants seek review of the sufficiency of the petition, while
Ameren seeks a decision on the merits. Ameren’s argument is foreclosed by the
5 certiorari procedure established in section 64.870.2 and by the scope of this
Court’s appellate jurisdiction.
I. Section 64.870.2
Section 64.870.2 establishes the procedure for judicial review of
Appellants’ challenge to the zoning amendments. Gash v. Lafayette Cnty., 245
S.W.3d 229, 234 (Mo. banc 2008). Section 64.870.2 provides that, after the
petition is presented to the circuit court, the court “shall allow a writ of certiorari
directed to the board of adjustment or the county commission, respectively, of the
action taken and data and records acted upon, and may appoint a referee to take
additional evidence in the case.” The circuit court “may reverse or affirm or may
modify the decision brought up for review.” Id. Finally, the statute provides the
procedure on appeal:
[a]fter entry of judgment in the circuit court in the action in review, any party to the cause may prosecute an appeal to the appellate court having jurisdiction in the same manner now or hereafter provided by law for appeals from other judgments of the circuit court in civil cases.
By authorizing the circuit court to reverse, affirm or modify the decision
brought up for review, the statute is premised on the assumption that the court will
address the merits of the zoning challenge according to the record, with the right
of appeal thereafter. The statute defines the right of appeal by authorizing an
appeal of the final judgment of dismissal “in the same manner now or hereafter
provided by law for appeals from other judgments of the circuit court in civil
cases.” The procedure outlined by section 64.870.2 is similar to standard civil
6 procedure in all cases in that it requires a party to first challenge the zoning
decision in the circuit court and, following a decision by the circuit court, proceed
with an appeal as in any other civil case.
In this case, the circuit court did not reverse, affirm or modify the decision
brought up for review in Count I. Instead, pursuant to the motions to dismiss filed
by Ameren and the commission, the circuit court dismissed Count I at the pleading
stage for failure to state a claim. The statute does not require an appellate court to
conduct a de novo factual review of the record and make a decision on the merits
when the circuit court dismissed or quashed the writ for failure to state a claim
before the parties filed a complete record.
Ameren relies primarily on State ex rel. Modern Finance Co. v. Bledsoe,
426 S.W.2d 737 (Mo. App. 1968), to support its position that this Court’s review
must extend to the ultimate merits of Appellants’ claims. In Bledsoe, the court
recognized that, in a certiorari proceeding, the respondent has two choices once
the writ is issued. The respondent may file a return in response to the writ or,
before the return is filed, file a motion to dismiss or quash the writ. Id. at 740. If
the respondent files a return, the circuit court should generally rule on the merits
of the petition based on a review of the record. Id. If the respondent files a
motion to dismiss or quash before the return is filed, then the motion “is in effect a
demurrer, confessing all facts well pleaded, but searching the whole record and
7 attacking the first fatal defect.” State ex rel. Berra v. Sestric, 159 S.W.2d 786, 787
(Mo. 1942); see also Bledsoe, 426 S.W.2d at 740. 4
In this case, the only issue raised by the motions to dismiss, and decided by
the circuit court, was whether the allegations in Count I stated a claim for relief. It
is this decision that is the subject of Appellants’ first point on appeal. Given this
context, there is nothing in Bledsoe that counsels departure from the general rule
that “[a] court should construe the petition liberally and consider [quashal] only if
it is quite clear that no relief can be had under any legal theory.” 14 C.J.S.
Certiorari § 83 (2014). Contrary to Ameren’s argument, section 64.870.2 does not
necessarily require an appellate court reviewing a judgment dismissing or
quashing a writ of certiorari on the pleadings to undertake an original
determination of the merits.
II. Appellate Jurisdiction
The foregoing analysis is reinforced by considering the scope of this
Court’s appellate jurisdiction. This Court has “exclusive appellate jurisdiction”
over certain cases, Mo. Const. art. V, sec. 3, and has authority to “finally
determine all causes coming to it from the court of appeals, whether by
certification, transfer or certiorari, the same as the original appeal.” Mo. Const. 4 The admonition to “search the whole record and attack the first fatal defect” refers to the analysis of a motion to dismiss prior to the respondent’s filing of the return with the circuit court. Bledsoe, 426 S.W.2d at 740. The “whole record” cannot be the record of the lower tribunal because this option arises only when respondent files a motion to quash the writ before the return is filed. This statement does not support the proposition that an appellate court must undertake an original merits determination when reviewing the judgment sustaining a motion to dismiss.
8 art. V, sec. 10. The nature of this Court’s appellate jurisdiction means that when
considering an appeal, this Court is “a court of review” whose “function is not to
hear evidence and, based thereon, to make an original determination.” Thummel v.
King, 570 S.W.2d 679, 686 (Mo. banc 1978). In other words, “there can be no
review of a matter which has not been presented to or expressly decided by the
trial court.” In re Adoption of C.M.B.R., 332 S.W.3d 793, 814 (Mo. banc 2011).
Engaging in de novo review of the merits of commission’s actions before the
circuit court has reviewed the merits of Appellants’ Count I would require this
Court to act not as an appellate court but, instead, to make an original
determination that must be made in the first instance by the circuit court.
This principle is illustrated in State ex rel. Scott v. Smith, 75 S.W. 586 (Mo.
1903). Scott was a disbarment proceeding. Scott appeared for trial in the circuit
court and filed an application for a change of venue. The circuit court overruled
the motion, heard the evidence and rendered a judgment of disbarment. The court
of appeals held that the circuit court erred in refusing the application to change
venue. Instead of remanding the case to the circuit court, the court of appeals
determined the case on the merits. Id. at 587. Scott filed a writ of certiorari with
this Court challenging the authority of the court of appeals to enter a judgment of
disbarment. In words equally applicable here, this Court held that the court of
appeals “exceeded its legitimate powers” by going beyond the issue presented and
deciding the case on the merits. Id. at 590.
9 In this case, Ameren sought and obtained a judgment dismissing Count I at
the pleading stage for failure to state a claim. Ameren’s argument that this Court
should review the merits of Count I is inconsistent with the scope of this Court’s
appellate jurisdiction in that it would require this Court, rather than the circuit
court, to undertake an original review of the merits of Appellants’ claims. Absent
a clear legal requirement to deviate from this Court’s traditional role as an
appellate court, there is no reason to expand this Court’s role from that of a court
of review to that of a court responsible for making an original, de novo
determination on the merits.
The proper standard of review in this case, therefore, is the standard set
forth in Sestric, which requires the reviewing court to assume as true “all facts
well pleaded” and review the pleadings for “the first fatal defect.” 159 S.W.2d at
787. This standard is similar to the well-established standard applied to any other
judgment of dismissal for failure to state a claim in which the reviewing court tests
the adequacy of the petition. Nazeri v. Missouri Valley Coll., 860 S.W.2d 303,
306 (Mo. banc 1993). The allegations are assumed to be true, and the reviewing
court grants to the plaintiff all reasonable inferences from the alleged facts. The
petition is reviewed in an almost academic manner, to determine if the facts
alleged meet the elements of a recognized cause of action, or of a cause that might
be adopted in that case. Id.
Having established the proper standard of review, this Court must
determine whether the circuit court erred in dismissing Count I of Appellant’s
10 petition. This determination requires an analysis of what constitutes a legally
sufficient “public hearing” for purposes of section 64.875.
III. Appellants state a claim that the commission failed to hold a valid hearing
Appellants argue that the trial court erred by quashing or dismissing their
Count I claim that commission’s decision to adopt the zoning amendments was
illegal due to its failure to conduct valid public hearings as required by section
64.875. Appellants contend that they properly stated a cause of action because
their petition alleges that the commission denied members of the public the
opportunity to directly address Ameren’s proposal for a new coal-ash landfill,
despite the fact that the zoning amendments were designed specifically to
authorize that landfill. In response, Ameren and the commission contend that
Appellants’ petition admits that they had a full and fair opportunity to be heard
and failed to allege what specific arguments and evidence they were prevented
from presenting.
Section 64.875 provides, in pertinent part, “no amendments shall be made
by the county commission except after recommendation of the county planning
commission, or if there be no county planning commission, of the county zoning
commission, after hearings thereon by the commission.” (Emphasis added).
Section 64.875 does not define the term “hearing” or prescribe the requirements
for a valid hearing. Likewise, Missouri courts have yet to define the exact
contours of a sufficient hearing pursuant to section 64.875. In the absence of a
statutory definition or established judicial interpretation, analysis of the section
11 64.875 hearing requirement begins with the proposition that “[t]he primary rule of
statutory interpretation is to give effect to legislative intent as reflected in the plain
language of the statute.” Gash, 245 S.W.3d at 232, quoting State ex rel. Burns v.
Whittington, 219 S.W.3d 224, 225 (Mo. banc 2007). “[T]o discern legislative
intent, the Court looks to statutory definitions or, if none are provided, the text’s
‘plain and ordinary meaning,’ which may be derived from a dictionary.
At the outset, it should be noted that, in addition to remaining silent on the
issue of what constitutes a “hearing,” the statute also does not expressly provide
whether a public hearing is required. The fact that the “hearing” is a public
hearing is established by the fact that the statute requires public notice of the
hearing in the manner prescribed for hearings under section 64.875. It would be
nonsensical to require public notice for a non-public hearing. The first
prerequisite for a sufficient “hearing” pursuant to section 64.875, then, is that the
hearing is public. The hearing in this case was public. The issue raised by
Appellants’ pleadings is whether the hearing was insufficient because the
commission precluded the public from addressing Ameren’s proposed coal-ash
landfill.
A “hearing” is “a session ... in which testimony is taken from witnesses,”
an “opportunity to be heard, to present one’s side of a case, or to be generally
known or appreciated,” and “a listening to arguments.” MERRIAM-WEBSTER'S
COLLEGIATE DICTIONARY 574 (11th ed. 2012). Given the plain language
meaning of the word “hearing,” it is apparent that the legislature intended for
12 members of the public to be able “to present [their] side of [the] case,” and for the
commission to “listen to [the public’s] arguments.” In sum, the plain language of
section 64.875 indicates that speakers must be allowed to address the subject of
proposed zoning amendments.
Requiring local zoning authorities to allow the public to address the subject
of the proposed zoning amendment is consistent with the purpose of the hearing
requirement. The purpose of the hearing requirement is reflected in the
requirement that local governments are required to provide notice of a public
hearing. For instance, in State ex rel. Freeze v. City of Cape Girardeau, the city
published notice of proposed zoning changes including a description of properties
to be affected. 523 S.W.2d. 123, 124 (Mo. App. 1975). The property description
in the notice did not encompass the Freeze property, but the zoning change
adopted by the city included the property. Id. at 124. The court of appeals held
that the inaccurate notice deprived the Freezes of an opportunity for a public
hearing and invalidated the zoning amendment as it related to their property. The
court reasoned:
Proper notice and public hearing are vital steps in the municipal legislative process for zoning changes. … This jurisdictional notice is not merely to advise affected parties of changes that will or might occur, but is an indispensable step in the process by which ‘parties in interest’ may profoundly affect the legislative course of such ordinance. Further, it permits interested citizens an opportunity to furnish the municipality relevant information to prevent improvident changes.
Id. at 125.
13 Just as the public is entitled to a reasonable and fair notice of the subject
matter of the hearing, it follows that the public hearing should be conducted so
that the public can address the subject matter of the proposed zoning amendments.
For this reason, the Georgia Supreme Court, in Yost v. Fulton Cnty., 348 S.E.2d
638 (Ga. 1986), invalidated a zoning amendment when opponents had notice of
and attended the public hearing but were precluded from voicing their opposition
to the amendment. The court reasoned that “notice of a hearing is worthless to the
party who, after responding to the notice, is denied the opportunity to speak.” Id.
at 645. Likewise, the Pennsylvania Supreme Court explained, in invaliding a
zoning ordinance enacted after defective notice of a public hearing:
A “hearing” contemplates more than mere attendance by the public; it connotes a meeting which the public has the right to attend and the right to be heard.
Appeal of Kurren, 208 A.2d 853, 856 (Pa. 1965).
While the specific procedures for conducting the hearing can be tailored to
meet logistical necessities, the requirement of a public hearing pursuant to section
64.875 requires, at a minimum, that the public be given the opportunity to present
its views about the subject matter of the proposed zoning amendment. Analyzing
Appellants’ petition against this standard demonstrates that Appellants stated a
valid claim for relief in Count I.
Appellants’ petition alleges that the zoning amendments authorize the
presence of coal-ash landfills next to and under common ownership with an
existing power plant, without mentioning Ameren by name. Second, it alleges that
14 Ameren’s Labadie plant is the only power plant in Franklin County and that
Ameren publicly proposes to build a new coal-ash landfill on their property
adjacent to the plant. Third, the petition alleges that, during the hearings on the
zoning amendments, the commission announced that the public could not speak
regarding Ameren’s landfill proposal and that the limitation on discussion had a
“chilling” effect on discussion at the hearing.
Assuming the truth of Appellants’ allegations, and construing the petition
broadly, Appellants have stated a viable claim that the zoning amendments were
enacted without a legally sufficient public hearing. The commission adopted the
challenged zoning amendments for the specific purpose of allowing Ameren to
locate a new coal-ash landfill on its property adjacent to its Labadie power plant.
Nevertheless, according to Appellants’ allegations, the commission prevented the
public from discussing Ameren’s proposed landfill at the hearings. Assuming the
truth of these allegations, the manner in which the hearing was conducted arguably
denied the citizens of Franklin County a fair “opportunity to be heard, to present
[their] side of [the] case, [and] to be generally known or appreciated.” MERRIAM-
WEBSTER, at 574. The restricted discussion also arguably prevented the citizens
of Franklin County from discussing the actual, underlying subject of the
amendments. Appellants’ petition states a viable claim that the commission did
not conduct a legally sufficient hearing as required by section 64.875.
15 IV. Conclusion
The trial court’s judgment of dismissal on Count I is reversed. Until Count
I is resolved on its merits by the trial court, a final judgment upholding the
commission’s decision to adopt the amendments is premature. The judgment
upholding the merits of the commission’s decision to adopt the landfill zoning
amendments is also reversed. The case is remanded to the circuit court. 5
_________________________________ RICHARD B. TEITELMAN, Judge
All concur.
5 Ameren filed a motion to dismiss the appeal as moot because the Public Service Commission (PSC) issued a certificate of convenience and necessity supplanting Franklin County’s landfill zoning regulations. Ameren asserts that the appeal is moot by operation of section 64.890.2(3), which provides that the zoning authority granted to local governments by the state enabling statutes “shall not be construed … to authorize interference with public utility services as may have been or may hereafter be authorized or ordered by the public service commission or by permit of the county commission, as the case may be.” The zoning amendments at issue in this appeal authorize coal-ash landfills. Ameren is defending the legality of these zoning amendments. The zoning amendments do not “authorize interference” with public utility service ordered by the PSC. To the contrary, the zoning amendments are aimed at facilitating Ameren’s operations. Ameren has not demonstrated that the zoning amendments constitute the type of “interference” necessary to trigger section 64.890.2(3). Ameren’s motion to dismiss the appeal is overruled.