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Case: State ex rel. Kelly Brothers Mason and Concerned Citizens Against Landvatter Ready Mix, Appellants, vs. County Commission of Franklin County, Respondent, and Landvatter Enterprises, LLC, Respondent/Intervenor.
Case Number: ED104766
Court: Missouri Court of Appeals, Eastern District
Decision Date: Unknown
Outcome: reversed
Practice Area: criminal-law
Canonical URL: https://ott.law/missouri-courts/opinions/state-ex-rel-kelly-brothers-mason-and-concerned-citizens-against-landvatt-104766
Official Source URL: https://www.courts.mo.gov/file.jsp?id=125499
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## Syllabus

3Jn tbe ;iMiS'S'ourt Qtourt of §:ppealS' 
<!eaS'tern 7JBtS'trtct 

STATE 
ex rel. KELLY 
BROT
HERS 
MASON 
and CONCERNED 
CITIZENS 
AGAINST 
LANDY 
A TIER 
READY 
MIX, 
Appellants, 
vs. 
COUNTY 
COMMISSI
ON OF 
FRANKLIN 
COUNTY, 
Respondent, 
and 
LANDY 
A TTER 
ENTERPRISES, 
LLC, 
Respondent-In
tervenor. 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
) 
)

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## OPINION

No. ED104766 
Appeal 
from the Circuit 
Court 
of 
Franklin 
County 
15AB-CC00225 
Honorable 
Wesley 
Clay Dalton 

Kelly 
Brothers 
Mason 
(Mason) 
and Concerned 
Citizens 
Against 
Landvatter 
Ready 
Mix 
(Conce
rned Citizens) 
appeal 
the judgment 
entered 
by the Circuit 
Court 
of Franklin County 
which 
upheld 
the  rezoning 
decision 
of  the  Franklin 
County 
Commission 
in  favor 
of Landvatter 
Enterprises, 
LLC (Landvatter). 
Appellants 
claim 
that the circuit 
court committed 
reversible 
error 
because 
certain 
irregularities 
that occurred 
during 
the application 
review 
process 
deprived 
Mason 
and Concerned 
Citizens 
of procedural 
due process 
and rendered 
the County 
Commission 
and the 
Planning 
and  Zoning 
Commission's 
(PZC) 
review 
and  approval 
of Landvatter's 
rezoning 
application 
fatally 
flawed. 
We agree. 
In our view, the procedures 
followed 
in this case, in which 
Mason 
and Concerned 
Citizens 
were not given the opportunity 
to be heard 
until after the PZC had 

heard 
from 
proponents 
of the rezoning 
as well 
as  from 
other 
interested 
parties 
and 
had 
already 
issued 
its statutorily-mandated 
recommendation 
to the County 
Commission, 
deprived 
Mason 
and 
Concerned 
Citizens 
of procedural 
due 
process 
because 
the opportunity 
they 
were 
given 
to be heard 
later 
before 
the County 
Commission 
was 
not, 
as required, 
at a meaningful 
time 
and 
in a meaningful 
manner. 
Moore v. Ed. a/Educ. of Fulton Pub. Sch. No. 
58,836 
S.W.2d 
943,947 
(Mo.bane 
1992). 
Factual and Procedural 
Background 
This 
appeal 
arises 
from 
the 
second 
of two 
attempts 
by Landvatter 
to build 
a  concrete 
manufacturing 
plant 
on a 24.3-acre 
tract 
at the corner 
of Old 
Route 
66 West 
Osage 
Street 
and 
Old 
Gray 
Summit 
Road 
in  Franklin 
County, 
Missouri. 
The 
first 
attempt 
was 
Landvatter's 
now­
abandoned 
pursuit 
of a conditional 
use permit 
(CUP), 
and 
the second 
is Landvatter's 
application 
to rezone 
the property 
now 
before 
the Court. 
Landvatter's 
Conditional 
Use 
Permit 
Application 
In 2014, 
Landvatter 
Ready 
Mix 
sought 
and 
obtained 
a conditional 
use permit 
from 
the PZC 
to build 
a concrete 
plant 
on the tract 
in question 
which 
is located 
in a district 
zoned 
"Community 
Development." 
Mason 
and 
Concerned 
Citizens 
appealed 
the PZC's 
grant 
of the permit 
to the 
Board 
of Zoning 
Adjustment. 
Although 
the Board 
voted 
3-2 to deny 
the permit, 
the Board 
did not 
overturn 
the decision 
of the PZC 
because 
it believed 
that 
there 
needed 
to be at least 
four 
votes 
in 
order 
to do so. 
Mason 
and 
Concerned 
Citizens 
challenged 
the 
Board's 
decision 
in the Circuit 
Court 
of Franklin 
County 
and 
then 
in this 
Court. 
While 
the appeal 
was 
pending, 
Landvatter 
Ready 
Mix 
withdrew 
its permit 
application 
which 
rendered 
the appeal 
moot. 
Landvatter's 
Rezoning 
Application 
On 
April 
20, 2015, 
Landvatter, 
under 
the name 
Landvatter 
Enterprises, 
LLC, 
submitted 
its 
application 
to the PZC 
to rezone 
the tract 
on which 
it intended 
to build 
the concrete 
plant. 
The 
2 

application 
sought 
to conve1i 
the 
"Comm
unity 
Development" 
zoning 
district 
into 
a "Commercial 
Activity 3 
Community 
Bus
iness" 
district, 
which 
would 
allow 
Landvatter 
to construct 
the 
concrete 
plant 
on the 
desired 
tract. 
In early 
May 
2015, 
the 
PZC 
announced 
that 
at its May 
19, 
2015 
regular 
monthly 
meeting 
it would 
"hear 
[Landvatter's] 
request" 
to rezone 
the 
tract. 
The 
PZC 
published 
notice 
in the 
local 
newspaper 
and 
also 
sent 
postcard 
notices 
to Mason 
and 
other 
individuals 
residing 
within 
600 
feet 
of 
the 
tract 
in question. 
This 
process 
including 
the 
hearing 
notices 
sent 
to the 
surrounding 
residents 
is consistent 
with 
and 
appears 
to have 
been 
derived 
from 
a Franklin 
County 
regulation 
speci
fying 
the 
manner 
in which 
citizens 
must 
be notified 
before 
any request 
to amend 
the 
zoning 
regulations 
or maps 
may 
be heard 
and 
adopted. 
Franklin 
County 
Unified 
Land 
Use 
Regu
lations, 
A1iicle 
14, 
§ 
325.
Section 
325 
provides 
in pertinent 
part:
A.
No 
order 
or recommendation 
that 
amends 
any 
of the 
provisions 
of these 
regulations 
may
be adopted 
until 
a public 
hearing 
has 
been 
held 
on  the 
proposed 
amendments.
B.
The 
plaiming 
staff shall publish 
a notice 
of the 
public 
hearing 
on any 
order 
that 
amends
the 
provisions 
of  these 
regulations 
in a newspaper 
having 
general 
circulation 
in the 
area.
The 
notice 
shall 
be published 
at least 
15 calendar 
days 
prior 
to the 
public 
hearing.
C.
With 
respect 
to map 
amendments, 
the 
planning 
staff shall 
mail 
written 
notice 
of the 
public
hearing 
to the 
record 
owners 
for 
tax 
purposes 
of all properties 
whose 
zoning 
classification
is changed 
by the 
proposed 
amendment 
as well 
as the 
owners 
of all 
properties 
within 
600
feet 
of the 
property 
rezoned 
by the 
amendment.
The 
newspaper  notice and 
the 
postcard 
notices 
included the 
phrase 
"no 
public 
comments
accepted" 
with 
respect 
to the 
Landvatter 
application. 
On 
May 
5, 2015, 
the 
PZC 
notified 
various 
interested 
parties  including 
representatives 
of 
the  local 
fire 
department 
and 
the 
highway 
department 
that 
the 
PZC 
was  scheduled 
to hear 
the 
Landvatter 
request 
on 
May 
19, 
2015 
and 
requested 
that 
"[i]f 
you 
have 
any 
comments 
or questions 
that 
affect 
whether 
this 
rezoning 
should 
3 

be  recommend
ed  or not,  please 
submit 
them 
to  our  office 
prior 
to  this  meeting 
day. 
Your 
comments 
will be distributed 
to the Commissioners 
at or before 
the meeting." 
Mason, 
for her part, 
submi
tted to the PZC 
clerk 
a petition 
with 24 signatures, 
and several 
letters, 
opposing 
the rezoning 
and the construction 
of the concrete 
plant. 
The clerk 
informed 
Mason 
that these 
materials 
would 
not be distributed 
to the PZC 
for consideration. 
Mason 
and approximately 
ten members 
of Concerned 
Citizens 
attended 
the May 
19
th 
PZC 
meeting 
and requested 
the opportunity 
to speak. 
The PZC 
refused 
the request 
and accepted 
no 
comments 
or materials 
from 
Mason 
or Concenied 
Citizens. 
Instead, 
the PZC 
heard 
exclusively 
from 
Landvatter 
and others 
speaking 
in favor 
of the rezoning 
before 
proceeding 
to vote 9 to I  to 
recommend 
to the County 
Commission 
that Landvatter's 
application 
be approved. 
Then, 
the PZC 
staff 
scheduled 
a hearing 
before 
the County 
Commission 
on July 23, 2015 
to consider 
Landvatter's 
rezoning 
request. 
The PZC 
staff again 
sent to the owners 
of all properties 
located 
within 
600 feet of the tract 
postcards 
notifying 
them 
of the hearing. 
Mason, 
members 
of 
Concerned 
Citizens, 
and other 
affected 
individuals 
attended 
the hearing. 
This time, 
the opposition 
petition 
was permitted 
to be filed, 
and members 
of the public 
were 
allowed 
to speak 
in opposition 
to the rezoning. 
On  September 
1,  2015, 
the  Commission 
issued 
its  order 
adopting 
the  PZC's 
recommendation 
to approve 
the rezoning 
application. 
Mason 
and Concerned 
Citizens 
appealed 
the County 
Commission's 
order 
to the circuit 
court 
which 
held a hearing, 
received 
no new evidence 
and, on August 
22, 2016, 
entered 
judgment 
in favor 
of the Commission 
and Landvatter. 
The court 
stated 
that it would 
not "usurp 
the authority 
of the Commission," 
and made 
no findings 
of fact or 
conclusions 
of law. 
This appeal 
follows. 
Additional 
facts, 
as relevant, 
are provided 
below. 
4 

Discussion 
The question before this Court is whether the procedures followed by the PZC and the 
County Commission-which involved interested parties including appellants being denied the 
oppo1tunity to be heard at the May 19, 2015 hearing at which the PZC considered whether to 
recommend approval of the rezoning application, though the PZC heard from those favoring the 
rezoning---<lenied Mason and Concerned Citizens procedural due process and thus rendered the 
rezoning void. 
1.Standard of Review.
Because a rezoning is a legislative act, we review de 11ovo a challenge to its validity. JGJ
Props., LLC v. City of Ellisville, 303 S.W.3d 642, 647 (Mo.App.E.D. 2010). And as  always, 
statutory interpretation is a question of law that we review de 11ovo. Gash v. Lqfayette Cly., 245 
S.W.3d 229, 231-32 (Mo.bane 2008). 
2.Procedural Due Process.
The right to procedural due process is not the same in every instance; rather, it is flexible
and calls for such procedural protections as the particular situation demands. 
Ja,nison v.  State 
Dep 't of Soc. Servs., Div. of Family Servs., 218 S. W.3d 399, 406 (Mo.bane 2007) ( citing A1orrissey 
v. Brewer, 408 U.S. 471,481  (1972)).
3.
Appellants were denied procedural clue process by the PZC.
We are guided by the principles laid down by our Supreme Court in Campbell v. County
Comm 'n of Franklin County, 453 S.W.3d 762, 768 (Mo.bane 2015), a case remarkably similar to 
this  one. In Campbell, the  Court reviewed the  dismissal by  the  trial court of  the  petition 
challenging the Franklin County Commission's zoning amendments that were adopted to allow 
the electric utility Ameren Missouri to build a coal-ash landfill next to its Labadie power plant. 
5 

Id. at 763. The petition alleged inter alia that the commission failed to conduct a legally sufficient 
hearing as required by § 64.875 RSMo. 
At the Franklin County Commission's public hearing concerning the application, the 
chairman informed those addressing the commission that they could not discuss Ameren or its 
proposed site for a coal-ash landfill near the Labadie power plant. Id at  764. Moreover, other 
county officials "interrupted speakers when they attempted to discuss Ameren's proposed Labadie 
landfill site .... " Id. at 764. The petition asserted that this conduct denied appellants a full and 
fair opportunity to be heard because the zoning amendments proposed by Ameren  were designed 
specifically to authorize Ameren to build a landfill near its Labadie power plant. Id. at 768. 
These facts are remarkably similar to what happened here where the PZC prevented the 
public from making any comments  whatsoever to  the PZC. If anything, the facts here are even 
more troubling because in Campbell the public was at least allowed to address the County 
Commission while here the PZC prevented the public from making any comments whatsoever. 
The Court in Campbell reversed the trial court and reinstated the petition. Id. at 770. The 
Court relied on §  64.875  which  provides that "no amendments shall be made by the county 
commission except after recommendation of the county planning commission ... [ and] after 
hearings thereon by the commission." Id. at 768 (emphasis added). The Court reasoned that since 
§ 64.875 did not define the term "hearing" or prescribe the requirements for a valid hearing and ,
no Missouri courts had yet defined the exact contours of a sufficient hearing pursuant to section 
64.875, the Court must employ "[t]he primary rule of statutory interpretation ... [which 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.bane 2007)). "[T]o 
discern legislative intent, the Court looks to statutory definitions or, if none are provided, the text's 
6 

'plain and ordinary meaning,' which may be derived from a dictionary." Id. 
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 (I 1th ed. 2012). Given 
the plain language meaning of the word "hearing," it is apparent that the legislature intended for 
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. Id. 
The Court then acknowledged the importance that the affected public is properly notified 
of a public hearing. Id.; State ex rel.  Freeze v.  City of Cape Girardeau, 523 S.W.2d 123,  124 
(Mo.App. 1975)). In State ex rel. Freeze, the court invalidated a zoning amendment because an 
inaccurate notice which failed to  include the  Freezes' property deprived the  Freezes of an 
oppo11unity for a public hearing. Id.  at 124.  The court reasoned that proper notice and a public 
hearing are vital steps in the zoning change process by which 'parties in interest' may profoundly 
affect the legislative course of such an ordinance, and they permit interested citizens an opportunity 
to furnish the municipality relevant information to prevent improvident changes. Id.  at 125. 
We now turn to the procedures carried out by the Franklin County Commission and the 
PZC and conclude that procedural due process was not afforded the appellants because the hearing 
was not a full and fair  opportunity for  appellants to be heard at a meaningful time and in a 
meaningful manner. Moore, 836 S.W.2d at 947.  As a result, the rezoning ordinance passed by 
the County Commission is invalid. 
Our decision hinges on the proceedings conducted by the PZC. 
Despite respondents' 
attempt 
to characterize the May 19, 2015 event as a meeting and not a hearing, we conclude on 
7 

this record that the May 19, 2015 event constituted a hearing to consider Landvatter's rezoning 
application. First and foremost, while the May 19, 2015 event may have been the PZC's regularly­
scheduled monthly meeting, our  record demonstrates that the  PZC itself referred to  its 
consideration of the Landvatter application as a hearing. Moreover, the PZC solicited input from 
various interested parties ( except appellants) to assist the PZC in making its decision on whether 
to recommend approval or denial of the Landvatter application. This treatment by the PZC of the 
Landvatter application certainly satisfies the definition of a hearing as found by the Supreme Court 
in Campbell, supra, in that the PZC deemed it necessary to hear from interested patties before 
making its decision on a recommendation. 453 S. W.3d at 770. 
Also significant to  our  opinion is  the  adherence by  the  PZC to the  statutory notice 
requirements for hearings on rezoning applications. Missouri statute section 64.863 mandates that 
no county zoning plan or regulation may be amended "without a public hearing and the person or 
body which conducts the hearing shall give notice, at least fifteen days before the hearing, by 
regular mail to all owners of any real property located within six hundred feet of the parcel ofland 
for which the change is proposed." The PZC adhered to this procedure. 
Similarly, the Franklin County regulation set forth above, article 14 § 325, reiterates the 
notice and hearing requirements of§ 64.863. Section 325 also directs that the tasks required to 
hold a public hearing on a rezoning request shall be carried out by the PZC staff or "planning 
staff'. That is precisely what occurred here: The PZC arranged both hearings - the May 19, 2015 
hearing before the PZC and the July 23, 2015 hearing before the County Commission. 
We now turn to the crux of Respondents' argument: That the July 23, 2015 hearing held 
before the County Commission satisfied the hearing and procedural due process requirements of 
section 64.875 which effectively rendered the  May 19,  2015 PZC hearing irrelevant to  the 
8 

disposition of this case. In other words, nothing that the PZC did or failed to do is relevant to this 
case because the County Commission later held a hearing on the application and heard from both 
proponents and opponents (including appellants herein) of the rezoning application. We disagree. 
While one of the purposes of the PZC's May 19, 2015 hearing may have been to  gather 
information on behalf of the County Commission for use in the July 23, 2015 hearing and to assist 
it  in reaching a decision on Landvatter's rezoning application, it is  clear on this record that the 
PZC was also carrying out its statutorily-mandated duty to formulate a recommendation and issue 
it  to  the County Commission. 
The legislature gave the PZC a  meaningful role in the zoning 
amendment process with unequivocal language: "[N]o amendments shall be  made by the county 
commission except after recommendation of the county planning commission .  .  .  [ and] after 
hearings thereon by the commission." Section 64.875. To adopt Landvatter's argument would 
require us to ignore the specific requirement the legislature included in the statute that no zoning 
amendment may occur without the PZC rendering to the county commission its recommendation. 
This we cannot do because it is presumed the legislature intended that every word, clause, sentence, 
and provision of a statute have effect and be operative. State ex rel.  Union Elec. Co.  v. Public 
Service Com'n of Missouri, 765 S.W.2d 626, 628 (Mo.App.W.D. 1988). And it  will not be 
presumed that the legislature inserted idle verbiage or superfluous language in a statute. Id; State 
ex rel. Ashcroft v.  City of Sedalia, 629 S.W.2d 578,583 (Mo.App. 1981). 
So, the record here demonstrates that to carry out its statutory duty to formulate and render 
to  the county commission its recommendation on the Landvatter application, the PZC had a 
hearing, invited all interested parties and heard from all interested parties except those that opposed 
the application. To deny certain interested parties the opportunity to be heard at the critical stage 
of the zoning amendment process when the PZC is  formulating its statutorily-mandated 
9 

recommendation to be used by the county commission to render its decision on the application 
falls well short of providing procedural due  process because the appellants  were denied the 
opportunity to be heard at a meaningful time and in a meaningful manner. Moore, supra.  The 
"meaningful time" was at  the  May 19,  2015 PZC hearing before the  PZC issued its 
recommeridation and the "meaningful manner" was simply to allow the appellants to be heard. 
Conclusion 
For the reasons stated above, we reverse the judgment of the circuit court, and we find the 
County Commission's rezoning order to be void. 
Kurt S. Odenwald, J., and 
Gary M. Gaertner, Jr., J., concur. 
10