Posted by: Patricia Salkin | September 2, 2020

MO Appeals Court Upholds Decision to Grant a Conditional Use Permit to Mining Company for Gravel Mining Operation

This post was authored by Matthew Loescher, Esq.

In this case, Kim Lynch and Hootie’s Rescue Haven appealed from the judgment of the circuit court upholding the decision of the Franklin County Board of Zoning Adjustment. The Board approved the order of the Planning and Zoning Commission granting Meramec Aggregates, Inc.’s (“MAI”) application for a conditional use permit for a gravel-mining operation.

Appellants first contented that the Commission’s approval of the Permit was invalid because its vote violated the Regulations’ prohibition against reconsideration and revoting. Specifically, since a tie vote denies a motion, the vote to approve the Permit with Condition Nos. 1–8 constituted a denial of the Permit application. Appellants further claimed that the subsequent vote to approve the Permit with Condition Nos. 1–9 was an improper reconsideration of the same Permit application due to the lack of any substantially changed circumstances affecting the property between the two votes. The relevant Regulations provided that the Commission “shall approve the Permit if the jurisdictional requirements are met, while additional conditions consistent with the jurisdictional requirements may be imposed by the Commission when approving the Permit application”. The court therefore found that as the Commission did not violate the express language or spirit of Reg. Section 98 concerning reconsideration, the Commission’s Permit approval was not invalid under the Regulations. Furthermore, even assuming the Commission’s vote to approve the Permit with Condition Nos. 1–9 was an improper reconsideration of the failed vote to approve the Permit with Condition Nos. 1–8, the court held Reg. Section 98 did not expressly state that an improper reconsideration by the Commission invalidated any subsequent Permit approval.

The record reflected that at the time of the relevant meeting and vote, the Commission followed Robert’s Rules, which provided that “on a tie vote, a motion requiring a majority vote for adoption is lost, since a tie is not a majority.” Appellants did not raise the issue before the Commission, but only did so at a later date before the Board, whose procedure was not governed by Robert’s Rules. As such, appellants could not rely on Robert’s Rules to justify overturning the Board’s decision.

Appellants next claimed that the Board’s decision to approve the Permit was not supported by substantial evidence and was against the weight of the evidence. Here, the Commission did not find clear and convincing evidence that the Permit application failed to meet the Reg. Section 91 jurisdictional requirements. In affirming the Commission’s Permit approval, the Board found that Appellants did not meet their burden of persuasion to overturn the approval based on the jurisdictional requirements regarding the adequacy of the roadways and the impact on neighboring property values, among other concerns. Accordingly, the court affirmed the Board’s decision and uphold the judgment of the circuit court.

Lynch v Frankling County, MO, 604 SW 3d 855 (MO App. 9/1/2020)

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