Proposal sufficient to pass muster at preliminary plat stage despite water pressure and sewage disposal concerns

NOTE:  With the start of fall classes the BLUZ welcomes its newest student contributor, Victoria Heldt.  Tori’s bio appears under “contributors.”  Melanie Thwing is continuing to report on all things land use in her homeland of Wisconsin before she starts law school next fall (Packers news will be filtered out.  Sorry Melanie).

by Victoria Heldt

State of Missouri, Ex Rel., Alexander & Lindsey, LLC v. Planning and Zoning Commission of Platte County, Missouri
(Missouri Court of Appeals, Western District, August 16, 2011)

Alexander & Lindsey, LLC (Alexander) owns approximately 16 acres of property north of Missouri Highway 92 and east of Highway 45 in Platte County, Missouri.  In July of 2007, Alexander filed an application with Platte County for a preliminary plat to subdivide the property into five lots for commercial development with the name “Beverly Plaza.”  In order to subdivide land in Platte County, a property owner must comply with the Platte County Subdivision Regulations of 1992.  The Director of Planning and Zoning, Daniel Erickson, determined that Alexander’s preliminary plat application met all of the requirements of the Subdivision Regulations and recommended approval of the application.

Pursuant to Subdivision Regulations, a public hearing was held in March of 2008, at which Erickson testified that the preliminary plat application complied with regulations.  In addition, a traffic study was completed that was approved by the Missouri Department of Transportation and the Platte County Engineer.  A drainage study was also reviewed and approved by the County Engineer.  Several concerns were raised at the hearing, however, regarding the water and soil testing.  The spokesman for Water District No. 3 stated that the District could provide water service to the property but that it could not guarantee fire suppression adequacy.  The Health Department, which performed soil testing, stated that 2 of the lots did not have adequate soil testing results suitable for septic systems and that those lots may require waste treatment systems using a lagoon or another method.

Erickson stated that some revisions would be made to the plat in response to the opposition to the development from the City of Weston.  These include 75-foot setback along both Highways 45 and 92 would be provided that would require a detailed landscape plan at the time of final plat approval and an area containing a stand of trees would be permanently protected by a stream buffer setback easement.  Greg Hoffman, an alderman with the Weston Board of Alderman, testified that the City of Weston opposes the proposed development of the property because it violates Weston’s scenic overlay ordinance for properties within Weston, which requires a 100 foot setback and other provisions regarding landscaping, massing of buildings, and scenic views.  He noted that the Weston Planning and Zoning Commission had voted down this same request several years prior.

At the end of the hearing, the Planning and Zoning Commission denied the preliminary plat 7 to 1, finding that the application would be detrimental to the public good and would impair the intent, purpose and necessity of the Subdivision Regulations for the following reasons:  1) lack of specification as to the proposed uses 2) infrastructure limitations, such as water for fire suppression, lack of central sewage disposal facilities and inability of the proposed subdivision to support wastewater stabilization ponds 3) the potential impact of wastewater stabilization ponds on neighboring properties and the public 4) potential for traffic hazards created by two access points on Highway 45 adjacent to the proposed subdivision.  Alexander appealed to the County Commission and then to the circuit court, both of which confirmed the Planning and Zoning Commission’s denial of the request. Alexander then appealed to the Missouri Court of Appeals

Alexander asserted that the decision to deny its preliminary plat was arbitrary and unlawful since the plat was in compliance with the requirements of Platte County’s Subdivision Regulations.  The Court of Appeals agreed.  The Court stated that the County Commission is acting in an administrative capacity, not a legislative capacity, when reviewing subdivision plats. As such it has no authority to make subjective judgments regarding the granting or denying of  plats.  It simply has the authority to determine if a proposal complies with regulations.  The Court noted that the County Commission’s four reasons it provided for denial (listed above) were outside the scope of the requirements of the Subdivision Regulations for preliminary plats.  As to lack of specification of proposed uses, nothing in the Subdivision Regulations requires specification of uses at the preliminary plat phase.  Similarly, the regulations do not require an applicant seeking approval of a preliminary plat to resolve infrastructure issues involving fire suppression, central sewage disposal facilities, or wastewater stabilization ponds. The Court emphasized the fact that this was a preliminary plat, which only gives the subdivider permission to proceed with the planning and development phases of the project.  The Subdivision Regulations will still require the final plat to comply with all Subdivision Regulations.  The Court further noted that the general purpose clause of a subdivision ordinance cannot be used as an independent basis for plat denial since it contains “no standards for approval.” Since Alexander’s plat complied, the County Commission had a ministerial duty to approve it and no authority to deny it.The Court concluded that the County Commission’s denial of Alexander’s preliminary plat was arbitrary, unlawful, and not based upon substantial and competent evidence.  It reversed the decision and remanded it to the lower court.

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