Lisa S. Van Amburg

Appeal from the Circuit Court of

Franklin County

Honorable Robert D. Schollmeyer

I. INTRODUCTION

Plaintiffs Ruth Campbell, Nancy Campbell, Edwin Elzemeyer, Jr., Euline Elzemeyer, Richard Stettes, Lorainne Stettes, Kara Carter, Jennifer Carter Norris, Katherine Carter Thomas, Susan Yarbrough, John Yarbrough, and the Labadie Environmental Organization (collectively "Labadie Neighbors") appeal the judgment of the Circuit Court of Franklin County on their petition for a writ of certiorari in favor of defendant County Commission of Franklin County ("Commission") and Union Electric Company, d/b/a Ameren Missouri ("Ameren"). Labadie Neighbors allege two points of error. First, they argue that the trial court erred by dismissing their Count I claim challenging the legality of Commission's decision to adopt amendments to the Franklin County Unified Land Use Regulations allowing coal-ash landfills, because Commission failed to conduct valid public hearings as required by law. We agree. We reverse the trial court's dismissal of Count I.

In Count II, Labadie Neighbors argue that the trial court erred by upholding Commission's decision to adopt the amendments, because the amendments fail to support the health, safety, and general welfare of Franklin County's citizens. Because the trial court must first resolve Count I before resolving Count II, we reverse the trial court's decision on Count II. We would remand this case to the trial court for further proceedings consistent with this opinion. However, because of the general interest of the question posed by this case, we transfer to the Supreme Court pursuant to Rule 83.02.

II. BACKGROUND

The Labadie Neighbors are eleven individuals who live or own property in the immediate vicinity of Ameren's Labadie power plant in Franklin County, Missouri, and the Labadie Environmental Organization, a citizens' group opposed to Ameren's plan to build a coal-ash landfill in the Missouri River floodplain. Respondent Commission is the governing body of Franklin County. Respondent Ameren is a utility company headquartered in the City of St Louis, Missouri, that owns and operates four coal-fired power plants in the St. Louis metropolitan area, including the Labadie plant in Franklin County.

Labadie Neighbors filed in the Circuit Court of Franklin County a petition for writ of certiorari pursuant to section 64.870.2, R.S.Mo. (2000), challenging Commission's amendment of the Franklin County Unified Land Use Regulations to permit the construction of coal-ash landfills "contiguous to the boundary of the property upon which a public utility power plant is situated." See generally Franklin Cnty., Mo., Unified Land Use Reg. Art. 10, § 238 (adopted Oct. 25, 2011). Count I alleged that Commission's adoption of the amendments was illegal, because Commission failed to conduct valid public hearings. Count II alleged that Commission's decision to adopt the amendments was illegal, because the amendments do not promote the health, safety, and general welfare of the citizens of Franklin County. In particular, Labadie Neighbors allege the following facts pertinent to Count I:

53. In 2009, Ameren Missouri announced to the public its proposal to build a coal-ash landfill on the land it had recently acquired nearby the Labadie plant.
54. In July 2009, Ameren Missouri met with Franklin County Planning and Zoning representatives to discuss Ameren's proposal to build a coal-ash landfill near the Labadie plant.
55. On November 16, 2009, Ameren Missouri held a public information session in Labadie to discuss its proposal to build a coal-ash landfill near the Labadie plant. . . .
62. The Franklin County Commission held a public hearing on December 14, 2010, and February 8, 2011, regarding the proposed landfill zoning amendments. . . .
76. The proposed landfill zoning amendments that were the subject of the hearings . . . required that any coal-ash landfill in Franklin County be (1) located within 1,000 feet of an existing utility power generation plant and (2) under common ownership with the adjacent power plant.
78. Ameren Missouri's Labadie power plant is the only public utility power generation plant in Franklin County.
79. The land owned by Ameren Missouri [is] contiguous to the Labadie power plant [and] is in the 100-year floodplain of the Missouri River and most of it is in the floodway.
82. At the public hearing before the Planning and Zoning Commission, the Chairman announced that speakers could not discuss Ameren Missouri or its proposed site for a coal-ash landfill near the Labadie power plant. The Chairman stated: "We are not here to discuss any particular project."
83. At the public hearing before the Franklin County Commission, the Presiding Commissioner stated that speakers could not discuss Ameren Missouri or its proposed site for a coal-ash landfill near the Labadie power plant. The Presiding Commissioner stated: "[I]f we start going off referring to Ameren and the proposal . . . there is no proposal. There hasn't been anything filed so that's going to be a separate issue. . . . If we go off on a tangent about Ameren or about fly ash and all that, I don't want to do that, but I will interrupt you."
84. [T]he Presiding Commissioner and the County Counselor interrupted speakers when they attempted to discuss Ameren Missouri's proposed Labadie landfill site . . . .
92. Because the landfill zoning amendments made coal-ash landfills a permitted use, the Franklin County zoning regulations offer no [subsequent] opportunity for a public hearing on Ameren Missouri's proposed coal-ash landfill in the Missouri River floodplain and floodway.
93. The Franklin County Commission acted illegally and unreasonably by adopting the landfill zoning amendments on October 25, 2011, without holding a valid public hearing as required by section 64.875 and Article 14, section 321 of the Unified Land Use Regulations of Franklin County.

After the Petition was filed, the trial court issued a writ of certiorari to Commission, directing it to provide the trial court a "certified copy of the full, true, and complete record pertaining" to the decision of Commission. Ameren filed a motion to intervene, on the ground that Labadie Neighbors' challenge to the amendments was a challenge to "Ameren Missouri's right to create, operate, and maintain a utility waste landfill" on its property adjacent to the Labadie power plant. The trial court granted Ameren's motion to intervene.

After Commission certified the record of its proceedings to the trial court, Commission and Ameren filed nearly identical 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). They argued Labadie Neighbors' petition failed to state a claim for relief, because:

[T]he admissions contained in [Labadie Neighbors' petition] demonstrate that [Labadie Neighbors] and their designated consultants were heard and their testimony and evidence considered and discussed by both the Franklin County Planning & Zoning Commission and the Franklin County Commission prior to the Frank County Commission's enactment of . . . the "Landfill Zoning Amendments."

The trial court conducted a hearing on Commission's and Ameren's motions to dismiss. At the request of the trial court, Commission and Ameren filed separate memoranda in support and Labadie Neighbors filed a memorandum in opposition. Thereafter, without explanation, the trial court granted the motions to dismiss Count I.Following a hearing on the merits, the trial court entered final judgment in favor of Ameren and Commission on Labadie Neighbors' Count II claim that the zoning amendments do not promote the health, safety, and general welfare of Franklin County. This appeal follows.

III. STANDARD OF REVIEW

In Missouri "[t]the writ of certiorari or review maintains its common law function," except as modified by statute. State ex rel. Sw. Bell Tel. v. Brown, 795 S.W.2d 385, 388 (Mo. banc 1990). The function "of the common-law writ of certiorari . . . [is to review] all questions of jurisdiction, power, and authority of the inferior tribunal . . . and all questions of irregularity in the proceedings." Id. at 387-88 (quoting 14 Am. Jur. 2d Certiorari § 2 (1964)). Here, section 64.870.2 has "enlarge[d] the scope of the remedy of certiorari and the grounds on which it will lie," Gash v. Lafayette Cnty, 245 S.W.3d 229, 234 (Mo. banc 2008) (quoting 14 C.J.S. Certiorari § 4 (2006)), to encompass legislative zoning decisions, id. at 233-34.

Unchanged, however, is the rule that "[o]nly questions of law are at issue in an action for a common law writ of certiorari." State ex rel. Pub. Counsel v. Pub. Serv. Comm'n, 210 S.W.3d 344, 351 (Mo. App. W.D. 2006). "Because questions of fact are not at issue . . . the reviewing court . . . considers only questions of law that appear on the face of the record." Id. at 351-52.

Likewise, "[a] motion to dismiss or quash the writ for . . . right to relief prayed by the petition . . . confess[es] all facts well pleaded, but search[es] the whole record and attack[s] the first fatal [error in a matter of law]". State ex rel. Berra v. Sestric, 159 S.W.2d 786, 787 (Mo. 1942); State ex rel. Modern Fin. Co. v. Bledsoe, 426 S.W.2d 737, 740 (Mo. App. 1968). "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).

IV. DISCUSSION

A. Count I: Public Hearings Claim

In their first point, Labadie Neighbors argue that the trial court erred by quashing or dismissing their Count I claim that the Commission's decision to adopt the zoning amendments was illegal due to its failure to conduct valid public hearings as required by law. Specifically, they contend that they properly stated a cause of action, because their petition alleges that 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 solely to authorize that landfill. In response, Ameren and Commission contend that Labadie Neighbors' own petition alleged 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.

We begin our analysis by recognizing that Commission must hold a public hearing before adopting a zoning amendment. "A county receives its authority to enact zoning regulations from the State of Missouri through enabling statutes. If a county fails to comply with the enabling statute, its zoning action is void and unenforceable." State ex rel. Helujon, Ltd. v. Jefferson Cnty., 964 S.W.2d 531, 538 (Mo. App. E.D. 1998) (citations omitted). Likewise, local requirements and procedures for amending zoning regulations must be followed. Id. Both Missouri state statute and Franklin County land-use regulations require a public hearing to be held before Commission may adopt amendments to its zoning regulations. See § 64.875, RSMo (2000); Franklin Cnty., Mo., Unified Land Use Reg. art. 14, § 323 (2011). Accordingly, "[t]he requirement[] of . . . [a] hearing [is] mandatory for validity of an amending ordinance, and ordinances passed in contravention thereof are void." State ex rel. Freeze v. City of Cape Girardeau, 523 S.W.2d.123 at 126 (Mo. App. E.D. 1975) (citation omitted).

Missouri courts have yet to define the exact contours of a valid public hearing for purposes of adopting a zoning amendment. For guidance in resolving this issue, we will examine: (1) the plain meaning of the word "hearing" as defined by the dictionary, and (2) how the rationale behind the requirement of fair notice of a public zoning hearing is equally applicable to how the hearing itself should be conducted. We will then apply the facts of the instant case to determine whether Labadie Neighbors state a proper cause of action for challenging the validity of a public zoning hearing mandated by the legislature.

First, we look to the plain meaning of the word "hearing" in the pertinent zoning statutes and regulations. See § 64.875, RSMo (2000); Franklin Cnty., Mo., Unified Land Use Reg. art. 14, § 323. "[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 the intent of the General Assembly, 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." Id. (quoting Burns, 219 S.W.3d at 225). "Thus, '[t]he construction of statutes is not to be hyper-technical, but instead is to be reasonable and logical and to give meaning to the statutes.'" Id. (quoting Donaldson v. Crawford, 230 S.W.3d 340, 342 (Mo. banc 2007)).

Merriam-Webster defines the term "hearing" as "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). We believe, therefore, that by requiring a "hearing" before Commission may amend its zoning ordinances, the Legislature intended for members of the public to be able "to present [their] side of [the] case," and for Commission to "listen to [those] arguments."

Second, we believe that the rationale behind requiring fair notice of a public zoning hearing is equally applicable to how the hearing itself should be conducted. This Court has held a that fairness is required in giving notice that a public hearing will take place: "notice should fairly be given the meaning it would reflect upon the mind of the ordinary layman, and not as it would be construed by one familiar with the technicalities solely applicable to the laws and rules of the zoning commission." Freeze, 523 S.W.2d at 126 (quoting Palmer v. Mann, 201 N.Y.S. 525, 528 (N.Y. App. Div. 1923), aff'd, 237 N.Y. 616 (N.Y. 1924)). It is only reasonable to conclude that fairness is similarly required in the hearing itself. See, e.g., Yost v. Fulton Cnty., 348 S.E.2d 638, 640 (Ga. 1986) ("Proper notice and a proper hearing are mutually dependent. The opportunity to be heard cannot benefit a party who lacks knowledge of the opportunity. Likewise, notice of a hearing is worthless to the party who, after responding to the notice, is denied the opportunity to speak."); see also Smith v. Skagit Cnty., 453 P.2d 832, 846 (Wash. 1969) ("It is axiomatic that whenever the law requires a hearing of any sort as a condition precedent to the power to proceed, it means a fair hearing."). Thus, citizens at a public hearing should be able to speak on the subject of a zoning amendment as "it would reflect upon the mind of an ordinary layman," and the public's right to speak at a hearing should not be suppressed due to "technicalities solely applicable to the laws and rules of the zoning commission." See Freeze, 523 S.W.2d at 126 (quoting Palmer, 201 N.Y.S. at 528); see also, e.g., Smith, 453 P.2d at 847 (test for the validity of public hearing is "whether a fair-minded person in attendance . . . [could] say that everyone had been heard who . . . should have been heard and that the legislative body . . . gave reasonable faith and credit to all matters presented, according to the weight and force that [they] were in reason entitled to receive.").

With these guidelines in mind, we now turn to the facts of the instant case. Labadie Neighbors' petition alleges that Commission's 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 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, Commission announced that the public could not speak regarding Ameren's landfill proposal. For example, the petition states that during the hearing on December 14, 2010, the presiding commissioner stated:

[I]f we start going off referring to Ameren and the proposal . . . there is no proposal. There hasn't been anything filed yet, so that's going to be a totally separate issue . . . . If we go off on a tangent about Ameren or about fly ash and all that, I don't want to do that, but I will interrupt you.

Accepting all well-pleaded facts as true, Berra, 159 S.W.2d at 787, and "constru[ing] the petition liberally," 14 C.J.S. Certiorari § 83, we believe that the import of these allegations is plain. 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. In fact, Commission's published notice of the hearings stated that the subject matter of the hearings would be "utility and non-utility waste landfills and the definitions and locations thereof." (emphasis added). Nevertheless, Commission used a technicality—that the zoning amendments did not mention Ameren by name—to prevent the public from discussing Ameren's proposed landfill at the hearings. This action 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, supra at 574. This action also prevented the citizens of Franklin County from discussing the real subject of the amendments as "it would reflect upon the mind of an ordinary lay[person]," due to "technicalities solely applicable to the laws and rules of the zoning commission." Freeze, 523 S.W.2d at 126 (quoting Palmer, 201 N.Y.S. at 528). In light of the liberal reading we must give these allegations, 14 C.J.S. Certiorari § 83, we believe that Labadie Neighbors' petition properly states a claim that Commission acted unfairly.

Even so, Commission and Ameren argue that Labadie Neighbors' petition was deficient for failure to allege specifically what evidence they were prevented from submitting at the hearings. We disagree. We believe Labadie Neighbors' petition alleges a great deal of information that Commission barred it from discussing at the hearings. First, the petition alleges that Commission prevented landowners from discussing the harm they believe they will suffer if Ameren is permitted to go forward with its proposed landfill. Namely, the landowners believe that the landfill would

threaten[] to contaminate their groundwater wells, contaminate their land, pollute the air they breathe, increase truck traffic near their homes and business, increase flood damage to their properties, adversely affect their views of the floodplain, impair their use and enjoyment of their properties, and reduce the value of their properties and businesses.

The land surrounding the Labadie plant is within the 100-year floodplain of the Missouri River and most of it is within the regulatory floodway delineated by the Federal Emergency Management Agency . . . . The land . . . is [also] in an earthquake hazard zone. According to the Missouri Department of Natural Resources . . . the land is at risk of liquefaction during an earthquake, which could cause the landfill to collapse.

[Ameren's] 1970 ash pond has been leaking since at least 1992, when Ameren Missouri reported two leaks totaling approximately 50,000 gallons per day to the [Missouri Department of Natural Resources]. . . . [and] [n]either Ameren Missouri nor any government agency has [tested
for or] cleaned up any groundwater contamination caused by leakage from the 1970 ash pond.

In sum, we believe that a public hearing, like notice thereof, "is an indispensable step in the process by which 'parties in interest' may profoundly affect the legislative course of [an] ordinance . . . . [by] permit[ting] interested citizens an opportunity to furnish the municipality relevant information to prevent improvident changes." Freeze, 523 S.W.2d at 125. Labadie Neighbors' petition alleges that Commission denied them a fair chance to speak on the issue they reasonably understood to be the hearings' subject matter: Ameren's proposed coal-ash landfill and the ramifications of locating it in the Missouri River flood plain. Such action would have effectively barred Labadie Neighbors from addressing the reason that they oppose the zoning amendments in the first place. We believe these allegations are more than adequate to withstand the liberal reading afforded to a plaintiff's petition on a motion to quash. See 14 C.J.S. Certiorari § 83 ("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.").

Thus, we hold that Labadie Neighbors' petition is sufficient to withstand Ameren's and Commission's motion to quash. We reverse the trial court's judgment of dismissal on Count I.

B. We Would Remand Count I

The dissent agrees that the trial court erred in dismissing Count I. But instead of remanding to the trial court, the dissent erroneously concludes that we should reach the merits of Labadie Neighbors' Count I public hearing claim. This conclusion rests upon several mistaken contentions regarding our standard of review. Specifically, the dissent is mistaken regarding: (1) the proposition that this Court must disregard the actions of the trial court and render a de novo judgment; (2) the applicability of Rule 84.14; and (3) a party's inability to file—and a court's inability to grant—a motion to quash or dismiss after the return of the lower tribunal's record to the reviewing court. Most importantly, however, we begin with the dissent's disregard of section 64.870.2, which is instructive of the scope of review here. Gash, 245 S.W.3d at 232-34.

1. Section 64.870.2

Section 64.870.2 provides that in an appeal from a zoning decision, the circuit court "shall allow a writ of certiorari . . . of the action taken and data and records acted upon" and "may reverse or affirm or may modify the decision brought up for review." Id. Thereafter, a "party to the cause may prosecute an appeal to the appellate court . . . in the same manner . . . provided by law for appeals from other judgments of the circuit court in civil cases." Id. (emphasis added). Thus, the plain language of the statute dictates that we review the trial court's dismissal of Count I in the same manner as we would any other dismissal or quashal in a certiorari action. See Gash, 245 S.W.3d at 232 ("[T]the primary rule of statutory interpretation is to give effect to legislative intent as reflected in the plain language of the statute." (quoting Burns, 219 S.W.3d at 225)).

Missouri precedent—law which this Court must follow—is replete with examples of appellate courts reviewing the propriety of a circuit court's judgment granting a motion to quash a writ of certiorari. See, e.g., Berra, 159 S.W.2d 786, 786-87 (Mo. 1942) (reviewing grant of motion to quash). Moreover, Missouri appellate courts have reviewed the judgment of the circuit court granting a motion to quash a writ of certiorari issued pursuant to section 64.870.2. State ex rel. Koeing v. Franklin Cnty. Bd. of Zoning Adjustment, 809 S.W.2d 874, 875 (Mo. App. E.D. 1991) (reviewing grant of motion to dismiss section 64.870 certiorari claim); see also Life Med. Sys., Inc. v. Franklin Cnty. Comm'n, 810 S.W.2d 554, (Mo. App. E.D. 1991) (reviewing dismissal of misnamed section 64.870.2 certiorari claim). We see no reason why this Court should review the trial court's judgment dismissing Labadie Neighbors' section 64.870.2 writ of certiorari in a different manner than that established by the foregoing case law.

2. We Should Not Disregard the Trial Court's Actions

The dissent insists that we must disregard the trial court's proceedings, and make a de novo determination on Labadie Neighbors' claims. The dissent opines that "the outcome of the case at the circuit court level generally has no bearing on our review . . . . [and] the adequacy of the petition, as well as the circuit's determination of its adequacy, have no practical effect on our review." These contentions are mistaken for three reasons.

First, this Court's jurisdiction does not permit us to adjudicate Labadie Neighbors' claims anew, as if they were filed in this Court in the first instance. Rather, it is the circuit court that has "original jurisdiction over all cases and matters, civil and criminal." Mo. Const. art. V, § 14(a). Article V, section 3 of the Missouri Constitution provides that "[t]he court of appeals exercises [only] general appellate jurisdiction over appeals from circuit court judgments." Goins v. Goins, 406 S.W.3d 886, 889 (Mo. banc 2013) (citing Mo. Const. art. V, § 3). Thus, "an appellate court sits as a court of review. Its 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); Caldwell v. Farmers' & Merchs.' Bank, 71 S.W. 1093, 1095 (Mo. App. STL. 1903) ("This is a court of appellate, and not of original, jurisdiction, except in certain specified cases. It is likewise a court of review, and not of trial, and deals with the record of the proceedings in the lower [tribunal]."). Thus, a de novo review of the Commission's actions before the trial court has passed on the merits of Labadie Neighbors' Count I would exceed this Court's jurisdiction.

Second, ignoring the trial court's disposition would render section 64.870.2's statutory review process meaningless. See Am. Nat'l Prop. & Cas. Co. v. Ensz & Jester, P.C., 358 S.W.3d 75, 85 (Mo. App. W.D. 2011) ("[W]e will avoid a construction that renders statutory language meaningless."). Section 64.870.2 provides for a two level review process, whereby a litigant first challenges the Commission's decision in the trial court, and second may prosecute an appeal of the trial court's ruling in the appellate court. Were an appeal after a trial court's dismissal to render the trial court's decision of "no general bearing" or "no practical effect," we fail to see why the legislature would have required a litigant to file in the trial court in the first place. Trial court review would be relegated to a mere formality to which a litigant would have to pay lip service before she could appeal and obtain an actual, substantive disposition of her claim. "Statutes should be construed in such a way as to avoid unreasonable, oppressive, or absurd results." Mo. ex rel. Bouchard v. Grady, 86 S.W.3d 121, 123 (Mo. App. E.D. 2002) (quoting Lincoln Cnty. Stone Co. v. Koenig, 21 S.W.3d 142, 146 (Mo. App. E.D. 2000)).

Moreover, the intent of Rule 64.870.2 is to provide a litigant with a unique opportunity for review at the trial court level. Again, "the 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 Burns, 219 S.W.3d at 225). Section 64.870.2 provides that the circuit court may "take additional evidence in the case" and "may reverse or affirm or may modify the decision brought up for review." (emphasis added). These provisions give the trial court much broader powers than is traditionally afforded by the writ of certiorari, Gash, 245 S.W.3d at 234 n.10, and much broader powers than this Court may exercise on appeal, see § 64.870.2 (specifying that appeal is prosecuted "in the same manner . . . provided by law for appeals from other judgments of the circuit court in civil cases"). Specifically, on appeal, this Court may only reverse or affirm the action of the board of adjustment or of the county commission. See Hernreich v. Quinn, 168 S.W.2d 1054, 1059 (Mo. banc 1943) (explaining writ of certiorari ordinarily "brings up only the record; . . . does not authorize an inquiry into the merits; and can relieve only by [reversal] . . . in whole or part, without the substitution of a new judgment or order).

Consequently, when the trial court grants a motion to dismiss for failure to state a claim without looking beyond the petition, it necessarily sends the claim to this Court before the trial court has "take[n] additional evidence in the case" or considered "modify[ing] the decision brought up for review." § 64.870.2. If this Court were then to move directly to the merits of the commission's decision—without first examining whether the trial court's dismissal was in error—we would permanently foreclose the litigant's opportunity to present "additional evidence" or have the trial court "modify" the challenged decision. See § 64.870.2. Instead, we could review the litigant's claim only on the record, and only to reverse or affirm. See Hernreich, 168 S.W.2d at 1059. We do not believe the legislature intended that section 64.870.2's review process be short-circuited to such an extent. See State ex rel. Bouchard v. Grady, 86 S.W.3d at 123 ("The legislature is not presumed to have intended a meaningless act.").

Third, the dissent misconstrues the meaning of the rule that this Court reviews the decision of the Commission, and not that of the trial court. Cf., e.g., Dotson v. Cnty. Comm'n, 941 S.W.2d 589, 592 (Mo. App. W.D. 1997). It does not require this Court to disregard the ramifications of a trial court's dismissal. Rather, this rule applies only to a final judgment on the merits of a county zoning decision—here, on the issue of whether the Commission's decision to adopt the coal-ash landfill ordinance is fairly debatable (or supported by competent and substantial evidence). It is based on the principle that a court will "not substitute [its] discretion for that of a legislative body," Great Rivers Habitat Alliance v. City of St. Peters, 246 S.W.3d 556, 562 (Mo. App. E.D. 2008), and will "refuse[] to second-guess local government legislative factual determinations," id. (quoting Spradlin v. City of Fulton, 924 S.W.2d 259, 263 (Mo. banc 1996)); cf. Coffer v. Wasson-Hunt, 281 S.W.3d 308, 310 (Mo. banc 2009) ("If the evidence permits either of two opposing findings, deference is afforded to the administrative decision."). Accordingly, this Court does not look to any findings of fact the trial court may have made, but instead looks to the facts and circumstances as they appeared before the Commission at the time. See Land Clearance for Redev. Auth. v. Inserra, 284 S.W.3d 641, 646 (Mo. App. E.D. 2009). Then, based on that established factual record, this Court determines de novo whether the disputed zoning decision is fairly debatable. See Great Rivers Habitat Alliance, 246 S.W.3d at 562. Thus, this rule does not require that we ignore the actions of the trial court and conduct a de novo review in every instance. See id. (reviewing trial court's grant of summary judgment).

3. Rule 84.14

The dissent erroneously contends that Rule 84.14 provides authority for this Court to "give such judgment as the [trial] court ought to [have] giv[en]" on Count I. However, "[u]nder our procedure . . . the writ of certiorari is the same as at common law, and [Missouri] courts may properly adopt the usages and principles applicable to . . . the writ as the same may have been developed under the common-law system, consistent . . . with . . . existing statutes." State ex rel. Jacobs v. Trimble, 274 S.W. 1075, 1077 (Mo. 1925). While we may fall back upon the rules of civil procedure for guidance where the common law and statute are silent, it is neither necessary nor appropriate to do so where common-law procedure is well established. See S.W. Bell Tel., 795 S.W.2d at 388-89. As we have explained, the common law procedure of reviewing the propriety of the trial court's dismissal of a writ of certiorari is well-established in Missouri. Thus, Rule 84.04 provides no authority for this Court to render a substitute judgment in place of a proper disposition in the trial court.

4. Motion to Quash Writ of Certiorari Filed after the Return

The dissent also erroneously contends that we should reach the merits of this case, because Ameren's and Commission's motions to dismiss were filed after the return of the record on appeal. The dissent claims that once the return of the lower tribunal's record has been made, a court should decline to quash the petition for failure to state a claim, and instead review the record directly.

From the outset, we note that the cases cited by the dissent do not support its contention regarding the preclusive effect of the return. The dissent first cites State ex rel. Davidson v. Caldwell, 276 S.W. 631, 634 (Mo. 1925), where the Court concluded that the respondent waived its defense that the writ had been improperly "issued by the clerk rather than the court," because the challenge "was not insisted upon before or raised by the pleadings or argument of counsel during the trial of the case in the circuit court." Id. The Court did not conclude that a motion to quash after the return is untimely.

The dissent's reliance on Davidson rests on its misreading of the following sentence: "As indicative of the waiver of the respondents upon the overruling of their demurrer in the circuit court . . . they filed their return, which constituted a general appearance to the action on the merits, and waived any defects in the issuance of the writ." Id. (emphasis added). A "demurrer" is an antiquated term for a motion to dismiss. Wenzel v. Wenzel, 283 S.W.2d 882, 888 (Mo. App. STL. 1955). Thus, the trial court had already overruled the respondent's motion to dismiss at the time of the return. Further, the Court was merely noting that a party's appearance in court after its motion to dismiss has been denied—here, in order to make the return—is a good indication that a party has waived its objection to improper service of process. See, e.g., State ex rel. Sperandio v. Clymer, 581 S.W.2d 377, 384 (Mo. banc 1979) ("The general principle is that if a party takes any action which recognizes that the cause is in court and assumes an attitude that the jurisdiction of the court has been acquired, he is bound thereby and the action amounts to a general appearance.").

Similarly unsupportive of the dissent's argument are State ex rel. Modern Finance Co. v. Bledsoe, 426 S.W.2d 737, 740 (Mo. App. STL. 1968), and State ex rel. McClain v. Burney, 26 S.W.2d 814, 815 (Mo. App. K.C. 1930). In Modern Finance, 426 S.W.2d at 740, the court simply stated that "[i]n the absence of a motion to quash the writ . . . one looks only to the record to determine whether petitioner is entitled to the relief asked; there is then no occasion to refer to the allegations of the petition." (emphasis added). And in McClain, 26 S.W.2d at 815, a per curiam order, the court merely noted that the trial court treated a motion to dismiss as a pleading on the merits, because "the parties . . . treated [the motion] as a pleading raising an issue upon the merits of the case." (emphasis added).

More to the point, the Missouri Supreme Court en banc specifically repudiated the notion that a motion to quash cannot be filed after the return in State ex rel. Powell v. Shocklee, 141 S.W. 614, 616 (Mo. banc 1911). The Powell Court observed:

[I]t is stated as the law that, after the writ is issued and the record of the inferior court has been certified in response thereto, the discretionary stage as to the issuance of the writ has passed, and it is then the duty of the court to hear and determine the cause on its merits, but, as we understand [it] . . . that doctrine was not concurred in by a majority of the members of the court, and therefore the case need not be regarded as a precedent upon that point.

As the application for a writ of certiorari is made ex parte, and may be granted by one member of the court, no good reason is perceived why the question as to whether the writ was improvidently granted may not be inquired into when the respondents are brought into court and for the first time have an opportunity to raise that issue, as is the recognized practice in the case of other original proceedings. The weight of authority favors the right of respondents to attack by proper motion the regularity of the issuance of the writ.

In sum, the dissent is mistaken in its contention that we should disregard the well-pleaded facts in Labadie Neighbors' petition on the Count I public hearing claim, and review the record independently of the petition to determine the fairness of the public hearings. Rather, as with any other dismissal, we must review Labadie Neighbors' Count I by taking all well-pleaded facts as true and searching for errors of law. See State ex rel. Berra v. Sestric, 159 S.W.2d 786, 186 (Mo. 1942). Therefore, we decline to review Count I on the merits, and would remand this claim to the trial court for review consistent with section 64.870.2.

C. Count II: Merits of the Zoning Amendments

Lastly, because the trial court erred by dismissing Labadie Neighbors' Count I public hearings claim, we reverse the trial court's judgment upholding on the merits Commission's decision to adopt the landfill zoning amendments. "The requirement[] of [a] [valid] hearing [is] mandatory for validity of an amending ordinance, and ordinances passed in contravention thereof are void." Freeze, 523 S.W.2d at 126 (citation omitted). Until such time as Count I is resolved on its merits by the trial court, a final judgment upholding Commission's decision to adopt the amendments is premature.

V. CONCLUSION

For the foregoing reasons, we reverse the trial court's quashal of Labadie Neighbors' Count I claim that Commission failed to conduct valid public hearings. We reverse as premature the trial court's judgment on Count II affirming the Commission's decision to adopt the zoning amendments. We would remand this matter to the trial court for further proceedings consistent with this opinion. However, because of the general interest of the question posed by this case, we transfer to the Supreme Court pursuant to Rule 83.02.

__________

Lisa S. Van Amburg, Presiding Judge
Patricia L. Cohen, J. concurring in a separate opinion and
Gary M. Gaertner, Jr., J., concurring in result in a separate opinion.
RUTH CAMPBELL, et al., Plaintiffs/Appellants, v. COUNTY COMMISSION OF FRANKLIN COUNTY, Defendant/Respondent, AND UNION ELECTRIC COMPANY, D/B/A AMEREN MISSOURI, Intervenor-Defendant/Respondent.

No. ED99622

Appeal from the Circuit Court of

Franklin County

Honorable Robert D. Schollmeyer

CONCURRING OPINION

I write to provide my perspective on the standard of review with respect to the trial court's judgment as to Count I. As an initial matter, I observe that both the majority and the dissent conclude that the trial court erred when it dismissed Count I for failure to state a claim. However, the majority and the dissent disagree on the proper standard of review to employ to reach that conclusion. Determining the appropriate standard of review is critical because it controls not only the analysis of the trial court's ruling but also the proper disposition of the appeal. In particular, the dissent's failure to utilize the correct standard of review with respect to Count I leads it to improperly undertake a resolution of the merits of Count I.

This court has clearly and concisely articulated the standard of review when considering whether a trial court erred in dismissing a claim for failure to state a claim: "Our review of a dismissal for failure to state a claim is de novo." Chochorowski v. Home Depot U.S.A., Inc., 295 S.W.3d 194, 197 (Mo.App.E.D. 2012). "When we consider whether a petition fails to state a claim upon which relief can be granted, we accept all properly pleaded facts, giving the pleadings their broadest intendment, and we construe all factual allegations favorably to the pleader." Id.; see also State ex rel. Helojon, Ltd. v. Jefferson County, 964 S.W.2d 531, 537 (Mo.App.E.D. 1998) ("In reviewing a trial court's grant of a motion to dismiss, this Court allows the pleadings their broadest intendments, treats all allegations as true, and construes the allegations in a manner favorable to the plaintiff."). More pertinently here, it is not the function of the court of appeals "on review of a judgment of dismissal for failure to state a claim, to determine whether an appellant is entitled to relief on the merits." Chochorowski, 295 S.W. 3d at 197. Accordingly, once the court determines that the trial court erred in dismissing the claim, the appropriate disposition is generally remand.

There is no basis in this record for this court to depart from the standard of review articulated above and resolve the merits of Count I. To do so undermines the long-standing principle that an appellate court is a court of review. Our court's function is not to "hear evidence and, based thereon, to make an original determination." Thummel v. King, 570 S.W.2d 679, 687 (Mo. banc 1978). Although the trial court might have opted to convert the hearing on the motion to dismiss to a hearing on summary judgment, it apparently chose not to do so. As Ameren acknowledges in its brief, "the Circuit Court took no new evidence on the allegations of the petition." Ameren also admits in its brief that although the trial court had the writ record available, it "did not look" at it. Likewise, on appeal, neither party has suggested that the trial court's order was anything other than a dismissal for failure to state a claim. As we recently explained:

The trial court was free to make a more expansive determination, but doing so necessitated converting the motion to dismiss into one for summary judgment. In that case, the court should have notified the parties, giving them time to prepare and present relevant evidence; or it must have been clear the parties waived such notice and consented to the conversion. (citation omitted). Neither occurred here, and neither party has at any time suggested that this should be viewed as anything other than a dismissal.

A helpful case on the question of whether it is appropriate for our court to resolve the merits of a claim where the issue before the court is the propriety of a dismissal for failure to state a claim is State ex rel. Schaefer v. Cleveland, 847 S.W.2d 867 (Mo.App.E.D. 1982). In Schaefer, the trial court dismissed the relator's petition for failure to state a cause of action. Id. at 869. At issue in Schaefer was the court's jurisdiction. Id. at 869-870. Because respondents answered the petition for alternative writ and filed motions directed to the sufficiency of the allegations to state a cause of action and the trial court thereafter ruled on the sufficiency of the allegations, the court's order to dismiss was final and appealable. Id. at 870. The court then turned to the merits of the appeal. In considering the merits of the appeal, the court stated the following: "We, of course, make no determination of the truth of the facts alleged. As previously indicated, we are bound by the facts alleged in relator's petition." Id. at 870. After concluding that relator's petition stated a cause of action, the court remanded the case to the trial court. Id. at 873.

To justify the propriety of an appellate resolution of issues that were neither considered at the Commission level nor in the circuit court, the dissent cites two cases, Fairview Enters., Inc., v. City of Kansas City, 62 S.W.3d 71 (Mo.App.W.D. 2001) and Bird v. Mo. Bd. Of Architects, Prof'l Eng'rs, Prof'l Land Surveyors & Landscape Architects, 289 S.W.3d 516 (Mo. banc 2008), authorizing de novo review on appeal of a determination rendered by a governmental body. These cases are clearly distinguishable and provide no basis for appellate resolution of the merits of Count I. In Fairview, the plaintiffs sought declaratory relief with respect to an ordinance passed by the Kansas City City Council, following hearings on the proposed ordinance. The validity of the hearings before the city council were not at issue. The circuit court held two days of hearings prior to declaring the ordinances null and void. On appeal, the court of appeals reviewed de novo the plaintiffs' challenge to the validity of the zoning legislation. The difference between Fairview and this case is evident: Count I is not a challenge to the substance of the ordinance. That challenge occurs in Count II.

The Bird decision is likewise unpersuasive as an authority for initial appellate resolution of the merits of Count I. The dissent cites a passage from Bird, ostensibly supporting a resolution of the merits rather than a remand, but omits important language. The omitted language describes the substance of a reviewable agency decision, namely "findings and conclusions, and the board's discipline." Bird, 259 S.W.3d at 516. Here, there is no comparable decision to review. The Commission did not consider the issues raised in Count I. Nor did the circuit court.

The dissent's disposition on the merits of Count I is, in essence, an exercise of original jurisdiction rather than appellate jurisdiction. In 1903, the Supreme Court considered and rejected such an improper exercise of appellate review in State ex rel. Scott v. Smith, 75 S.W. 586 (Mo. 1903). Scott arose out of a disbarment proceeding. Mr. Scott appeared for trial in the circuit court and filed an application for a change of venue. The circuit court denied the motion, heard evidence and rendered a judgment of disbarment. Mr. Scott appealed the matter to the court of appeals, which decided that the circuit court erred in refusing the application to change venue. However, rather than remand the case to the circuit court, the court of appeals proceeded to resolve the matter. Mr. Scott filed a writ of certiorari, which the Supreme Court granted, challenging the authority of the court of appeals to enter a judgment of disbarment. The respondents, the judges of the court of appeals, contended they had the right to review the facts and enter such "judgment as the trial court should have entered." The Supreme Court held that "the first and only jurisdiction the appellate court acquired was an appellate jurisdiction and it was not required to exercise any other." Id. at 590. Rejecting the respondents' contention that they had the authority to render a judgment on the merits, the Supreme Court concluded that the court of appeals did not "undertake to modify, correct or in any way change the judgment of the trial court...it tried the case anew and entered its own independent judgment...." Id. In words equally applicable here, the Supreme Court held that the court of appeals "exceeded its legitimate powers":

This proceeding was instituted in pursuance of the statute; in that respect, it is purely statutory. Relator during the progress of the trial, preserved his exceptions, as he was fully authorized to do under the statute. He had the right to have an impartial tribunal try his case. His affidavit for a change of venue, whether true or false in point of fact, must be taken as true, and the Court of Appeals correctly held that it was error to refuse his application to change the venue, and the court should have reversed and remanded the cause with directions to the trial court, to send said cause to another division of the Jackson Circuit Court for trial.

Id.

I appreciate the dissent's concern about judicial economy. However, considerations of judicial economy are not a sufficient basis to remove this particular case from resolution by the trial court. In addition, it is premature and speculative to conclude that the parties will adduce no additional evidence as to Count I once this court resolves the issue of the sufficiency of the pleadings. Certainly unlike common law writ procedure, Section 64.870 permits the trial court on remand to appoint "a referee to take additional evidence in the case."

To justify an appellate resolution of the merits on the grounds of judicial economy, the dissent cites Nicolai v. City of St. Louis, 762 S.W.2d 423 (Mo. banc 1988). Nicolai highlights the lack of a basis for this court to resolve the merits of Count I. In Nicolai, the plaintiff appealed, among other things, a trial court dismissal of his declaratory judgment action for failure to state a claim. Id. at 424. The defendant admitted that the dismissal was error. Id. at 424-25. In deciding to resolve the merits, the Supreme Court noted that: (1) the plaintiff "does not contend that he has been denied the opportunity to argue his position on the merits[,]"; and (2) "[t]he parties join in asking this Court to render a final determination on the issues presented in the pleadings." Id. at 426. Neither of these factors are present here.

I would further note that Nicolai and Magenheim v. Bd. of Educ. of the Sch. Dist. of Riverview Gardens, 347 S.W.2d 409 (Mo.App. 1961), also cited by the dissent in support of appellate resolution of the merits, are declaratory judgment actions. The Gash decision makes clear that where Section 64.870.2 governs, it "precludes the use of declaratory judgment." 245 SW.3d at 234, n. 10. In any event, even assuming the relevancy of precedent developed with respect to declaratory judgment actions, the Supreme Court has held as follows:

[I]t is not the function of the trial court or this court on appeal from a judgment of dismissal to make an analysis of the law under which the rights are claimed or to construe the statutes in question or to determine on the merits whether [appellant] is entitled to declaratory relief.

Conclusion

There is quite a significant degree of uncomfortable irony in disposing of a claim challenging the fairness of a hearing before a fact-finding tribunal by dispensing with a hearing on the merits of the challenge. Beyond that, however, the principle at risk in the dissent is of more general importance. We should be very wary of unduly expanding our role as primarily a court of review.

__________

Patricia L. Cohen, Judge
RUTH CAMPBELL, ET AL., Appellants, v. COUNTY COMMISSION OF FRANKLIN COUNTY, Respondent, and UNION ELECTRIC COMPANY, D/B/A AMEREN MISSOURI, Respondent.

ED99622

Appeal from the Circuit Court

of Franklin County

Honorable Robert D. Schollmeyer

CONCURS IN RESULT

I concur in transfer to the Missouri Supreme Court only. I respectfully dissent from the majority's underlying analysis, and I would affirm.

This appeal reaches us after certiorari review by the circuit court of a legislative zoning decision of the Franklin County Commission (Commission). This case is procedurally complex, in that certiorari is a unique procedure at common law, and here a statutory certiorari procedure controls. Added to that, the trial court's decision here in dismissing one count after receiving the record of the Commission and determining one count on the merits is anomalous to a certiorari procedure. This case therefore differs procedurally than the vast majority of cases we handle. Essentially, the majority's complaint with my opinion is that I fail to treat the trial court's dismissal on review here as we do every other dismissal for failure to state a claim for relief. However, that is precisely my point: this case is not typical, in that we do not sit here as the first court of review. Given this fact and circumstances particular to this case, I believe we can exercise de novo review of the legal issue raised in Count I, in the same way we would had the trial court entered a judgment on the merits. Legal precedent in analogous situations contributes to my belief that a merits decision here is appropriate, is permitted by law, and serves justice—though it is not required.

Because of the legal and procedural complexity here, before discussing the present case and analyzing the points on appeal, I begin with a background of certiorari procedure at common law and under the statute applicable here.

Legal Background

1. Common Law Certiorari Procedure in Circuit Courts

Review by writ of certiorari is a historic common law remedy by which a circuit court can choose to review a decision of a lower tribunal. However, certiorari review in a Missouri circuit court is rare and only available in very limited circumstances. Also, a circuit court sitting on certiorari review is engaging in the first appeal of a lower tribunal's decision, and in that sense, the circuit court in such a case resembles the court of appeals.

At common law, a circuit court may choose to grant certiorari review only of judicial or quasi-judicial decisions of a lower tribunal, such as an administrative agency or a local governmental body. A party who has been aggrieved by a lower tribunal's decision can request certiorari review in the circuit court only regarding issues of the lower tribunal's jurisdiction or when no other means of appeal is available. Also, the issues considered by a circuit court on certiorari review are limited to questions of law appearing on the face of the record—specifically, whether the lower tribunal's action was legal.

The certiorari review process is initiated by a relator: a party who was aggrieved by the decision of the lower tribunal. The relator files a petition for a writ of certiorari; essentially, a request for review. A circuit court usually has discretion either to grant the writ request or to deny it. When a circuit court chooses to grant the request, it issues a writ of certiorari directed to the lower tribunal. The writ orders the lower tribunal to deliver its record in the case for review. This delivery of the record demanded by the writ is often called a "return."

Once the writ has issued, directing the lower tribunal to file its return, the lower tribunal has two options in responding: (1) it may file the return as requested, or (2) it may move to quash the writ as improperly granted, for example, because the writ petition fails to state a claim upon which relief can be granted. A motion to quash a circuit court's writ of certiorari asserting this defense is therefore akin to a motion to dismiss for failure to state a claim for relief in a typical civil case. Because a circuit court issues a writ of certiorari ex parte, the lower tribunal's first opportunity to respond to the writ petition comes when it receives the writ directing the tribunal to file its record. If the lower tribunal files a motion to quash for failure to state claim upon which relief can be granted, as with a typical motion to dismiss asserting that defense, the circuit court then examines the allegations contained in the writ petition alone to determine whether it adequately states a claim for relief.

However, where the lower tribunal chooses to file its return in the circuit court in response to the writ, this act of filing the return (record) generally constitutes a waiver at common law of the ability to contest irregularities in the issuance of the writ. Likewise, once the circuit court has the record of the lower tribunal, courts generally hold that the circuit court must examine the record and consider the merits of the legal issues raised, rather than quashing the writ because of any error in issuance.

The circuit court does not re-weigh the evidence regarding the decision of the lower tribunal, but only reviews any issues concerning the legality of the decision appearing from the record. At that point, if the circuit court finds the decision was legal, it allows the lower tribunal's decision to stand. If the court concludes the decision was illegal, the court quashes the record of the lower tribunal and the circuit court has no power to do more. This is similar in the typical civil context to the court of appeals vacating the judgment of the lower court and remanding for further proceedings.

After any decision by the circuit court on a writ of certiorari, the non-prevailing party may appeal to the court of appeals. Where the circuit court has granted a motion to quash a writ of certiorari before the return has been filed, appellate review in this Court is also akin to our review of a circuit court's grant of a motion to dismiss: we look solely to the petition to determine whether it adequately states a claim for relief.

However, if an appeal to this Court is taken after certiorari review in the circuit court was conducted on the merits of the legal issues in light of the lower tribunal's record (after return), appellate review is conducted in the same manner as in the circuit court: by taking the record as it is and determining the legal questions raised. The appellate court owes no deference to the circuit court's findings in such a case, but rather independently reviews the legality of the lower tribunal's decision. This is similar to our standard when reviewing a circuit court's review of an agency decision in a contested case, in which we examine the decision of the agency rather than the findings and conclusions of the circuit court. Thus, the scope of our review of a circuit court's certiorari decision depends upon at what stage in the certiorari process a party appealed, just as review in any case depends on the stage of the proceedings below.

2. Statutory Writ Procedure Under Section 64.870.2

The common law procedure described above applies to any writ of certiorari, except where a statute changes this procedure, the statute controls. The writ of certiorari issued by the trial court here was pursuant to Section 64.870.2. Section 64.870.2 broadens the circuit court's scope of certiorari review, which in turn can affect appellate review. Specifically, whereas a common law writ of certiorari is available to review the legality only of judicial or quasi-judicial decisions, Section 64.870.2 specifically creates an opportunity for certiorari review of legislative zoning decisions made by county commissions. The statute states that a party aggrieved by a zoning decision may file a petition for a writ of certiorari in the circuit court, raising claims that the decision of the county commission was illegal. Additionally, the statute requires that once a party files a petition for a writ of certiorari, the circuit court does not have discretion to deny it, but rather must direct a writ to the county commission.

From there, the statute is silent as to the response of the county commission. Therefore, as at common law, the commission may either move to quash the writ or may file its record (return) with the circuit court as directed by the writ. In line with the common law, Rule 55.27(a)(6) allows a responding party "in any civil case" the opportunity to raise by motion the defense that the petition fails to state a claim upon which relief can be granted. Thus, I believe a county commission receiving service of a writ of certiorari under Section 64.870.2 would be permitted to respond to the writ by filing a motion under Rule 55.27(a)(6).

Where the commission chooses to file its record (the return) with the circuit court, at this point in the process, Section 64.870.2 also enlarges the scope of the circuit court's certiorari review compared to the common law. Under the statute, the circuit court is not confined simply to determining the issues of legality raised by the county commission's record, but rather the circuit court may choose to take additional evidence from the parties. The statute then provides that the circuit court may reverse, affirm, or even modify the decision of the county commission. Thus, as at common law, the statute contemplates a decision on the merits once the circuit court has the record of the commission. Moreover, the circuit court's review under this statute is much broader than common law certiorari review. This review more closely resembles circuit court review of administrative decisions under Missouri's Administrative Procedure Act, which also allows a circuit court to take additional evidence and modify agency rulings.

In summary, though Section 64.870.2 expands the scope of the certiorari remedy, it does not change the common-law general rule favoring a decision on the merits of the legal issues raised once a lower tribunal files its return. With this certiorari context in mind, I turn to the circuit court's ruling below and its effect on our standard of review.

Procedural Background

Here, given the just mentioned legal context, the trial court made an anomalous ruling. In the present case, the Commission's first response to the writ of certiorari was to submit the full record of its proceedings (the return) in adopting the disputed zoning amendment (Amendment) to the trial court for review. The Commission simultaneously filed an answer to the petition, in which it asserted as an affirmative defense that the petition failed to state a claim upon which relief could be granted.

After the Commission had filed its return and answer with the trial court, Ameren sought to intervene, which the trial court allowed. Ameren and the Commission then each filed their own motions for judgment on the pleadings under Rule 55.27(b), or alternatively, motions to dismiss for failure to state a claim under Rule 55.27(a)(6), regarding Counts I, III, IV, V, and VI of Appellants' petition. The trial court subsequently entered an order stating simply that the court granted Ameren's and the Commission's motions to dismiss. Ameren and the Commission also moved for appointment of a referee to take additional evidence, which Appellants opposed and the trial court eventually denied. Finally, after extended briefing and argument by the parties regarding the remaining count of Appellants' petition, Count II, the trial court entered its findings and conclusions upholding the action of the Commission.

What is anomalous about these rulings is that, as outlined above, under common law certiorari procedure and unaltered by Section 64.870.2 in this respect; once the circuit court has the lower tribunal's record (the return), it should consider the merits of the legal issues rather than the adequacy of the petition. Especially here, because the trial court undertook a determination of the legal issue raised in Count II, it is anomalous that it at the same time declined to consider the record as it related to Appellants' argument in Count I. I believe this fact, along with the standard of appellate review for legislative decisions, requires a different standard of review here than that applied by the majority.

Standard of Review

Specifically, I disagree with the majority that we should apply separate standards of review to Counts I and II of Appellants' petition, despite the fact that the trial court entered different judgments for each. This is because certiorari procedure and appellate review of a legislative decision are both fundamentally different than appellate review in typical civil cases where a circuit court is not sitting in review but is in the position of original adjudication. As stated previously, I believe the trial court should not have dismissed Appellants' writ petition in part while at the same time considering the Commission's record. However, while I agree with the majority in the limited respect that dismissal was improper, I do not believe we need to remand here. I would instead find that we may review de novo both of the legal questions raised by Appellants' petition, for two reasons: (1) both certiorari procedure generally and procedure for review of a county commission's zoning decision require us to review the decision of the Commission and any legal issues appearing from the face of the record with no deference to the trial court's judgment, and (2) as a practical matter, review of this issue on the merits preserves judicial economy here and is permitted under Rule 84.14.

1. Appellate Review of Certiorari Rulings and Legislative Decisions

Section 64.870.2 states that an appeal may be taken from the circuit court's decision on certiorari as in other civil cases. In other civil cases involving appeals from decisions of county commissions that have been reviewed by the circuit court in certiorari, the scope of appellate review is confined to the legality of the Commission's action, and on this issue we pay no deference to the circuit court's order. See State ex rel. Dotson v. County Comm'n of Clay County, 941 S.W.2d 589, 592 (Mo. App. W.D. 1997) (reviewing certiorari proceeding under Section 64.660 ).

Similarly, I also note that in general, appellate review of legislative zoning decisions of a local governmental body (not necessarily by writ of certiorari), involves a de novo determination of the legality of the decision of that governmental body. See Fairview Enters., Inc. v. City of Kansas City, 62 S.W.3d 71, 76 (Mo. App. W.D. 2001) (quoting Lenette Realty & Inv. Co. v. City of Chesterfield, 35 S.W.3d 399, 405 (Mo. App. E.D. 2000)) ("[s]ince zoning and refusal to rezone are legislative acts, we review de novo any challenges to their validity . . ."). Again, in reviewing such cases, we do not defer to the circuit court's initial ruling passing upon the legality of the local governmental body's decision. In that sense, the outcome of the case at the circuit court level generally has no bearing on our review. The question is whether a circuit court's dismissal of part of the certiorari action changes this basic nature of review.

Because the procedural posture of a certiorari case under Section 64.870.2 resembles that of an administrative appeal, some principles from the administrative context are instructive. In a case considering the propriety of the appellate court's determination that the circuit court should have dismissed a petition for review for failure to state a claim, the Missouri Supreme Court observed the following:

At the outset, it should be noted that the court of appeals' focus on the petition for review is misplaced because the petition plays little or no role in the appellate court process. When a circuit court's judgment is appealed, the appellate court does not review the circuit court's decision, but rather the agency decision .... Accordingly, the circuit court's judgment—and of course the petition for review that began the circuit court process—is of no particular interest when the matter is appealed[.]

Similarly here, because we review the decision of the Commission, and we have its full record; the adequacy of the petition, as well as the circuit court's determination of its adequacy, have no practical effect on our review. Thus, I would conclude that we should review the record of the Commission and determine any issues of legality de novo, regardless of the circuit court's resolution of each argument in Counts I and II.

2. Judicial Economy and Rule 84.14

Additionally, even if we were to review the trial court's dismissal of Count I separately rather than the decision of the Commission as a whole; as a practical consideration, in light of the trial court's anomalous dismissal of Count I, I believe we can review the record that was in front of the trial court and under Rule 84.14 enter the judgment the court should have, in the interest of preserving judicial economy and achieving a swift outcome. The majority points out that Section 64.870.2 contemplates that Appellants should have a unique opportunity for review by the trial court. At the same time, as explained above, the law contemplates that we review the decision of the Commission rather than the trial court. I would conclude therefore that because we have the same record in front of us as the trial court did, and the only issues on appeal are purely legal, we should rule on those issues. Additionally, because this case affects the enforcement of the Amendment, which was not stayed pending the outcome of this appeal, I believe determining the issues at this stage is in the interest of swift justice.

The Western District Court of Appeals did this in the similar context of an administrative appeal, in which the circuit court had dismissed the petition for review, finding the agency lacked subject matter jurisdiction to make its decision. Psychiatric Healthcare Corp. of Mo. v. Dep't of Soc. Servs., Div. of Med. Servs., 996 S.W.2d 733, 735 (Mo. App. W.D. 1999). The court reasoned the following:

The circuit court, while specifically adopting the findings of the [agency], did not rule on the merits of [the] appeal. One option would be to return the cause to the circuit court for a ruling, but since the trial court's review is the same as this court's under Section 536.140, and since the only determination to be made is the legal conclusion reached under the facts of this case (there being no dispute as to the facts), this court opts, in the interest of judicial economy and to expedite this matter, to rule on the appeal.

Additionally, Rule 84.14 allows an appellate court to "reverse or affirm the judgment or order of the trial court. . ., or give such judgment as the court ought to give." The rule goes on to say, "[u]nless justice otherwise requires, the [appellate] court shall dispose finally of the case." Utilization of this rule is "particularly appropriate for judgments where there is no dispute as to the facts but only a dispute as to their legal significance." Mitalovich v. Toomey, 206 S.W.3d 361, 365 (Mo. App. E.D. 2006) (citation omitted); see also DeBaliviere Place Ass'n v. Veal, 337 S.W.3d 670, 679 (Mo. banc 2011) (declining to give judgment under Rule 84.14 because it is only appropriate "in circumstances that indicate there is no further need for proceedings in the circuit court").

While Rule 84.14 is most often utilized to correct mathematical calculations in light of an appellate court's legal determinations, this is not the only appropriate use of the rule. In Bird, after determining the court of appeals erroneously dismissed the appeal and after review of the merits of the agency decision, the Missouri Supreme Court concluded that the decision should be reversed. 259 S.W.3d at 526. The court noted that though it would normally affirm or reverse the decision of the circuit court, it entered its own order under Rule 84.14, because while the circuit court had also reversed the agency's decision, it had improperly remanded to the agency where no remand was necessary. Id. at 526 n.14. Thus, the Supreme Court corrected this by entering its own order reversing without remanding, employing different reasoning than the circuit court had. Id.

Similarly here, acting as a court of review, the trial court dismissed a claim that it should have determined on the merits under the circumstances. We have the same record that the circuit court had. There is no dispute as to the facts here; rather, the issues raised are purely legal. The majority would have us remand, and yet regardless of the trial court's decision upon remand, this Court will most likely face another appeal with the same record and same issues, owing no deference to the circuit court then as we do not now. Rule 84.14 admonishes us to dispose finally of the case unless justice otherwise requires. In my opinion, under the circumstances here, justice would be served just as fully and certainly more expeditiously if we simply reviewed all legal issues raised by the record and disposed finally of the case now.

Finally, I believe this is also consistent with the logic behind allowing such review on an appeal from dismissal of a declaratory judgment action. In such a case, where the trial court fails to make a declaration of the rights of the parties, and where no facts are in dispute and the issue is purely legal, the appellate court may undertake to declare the rights and duties of the parties. Nicolai v. City of St. Louis, 762 S.W.2d 423, 426 (Mo. banc 198 8). The same principle should apply in this case, where the trial court failed to make the legality determination despite having the full record, the facts are not in dispute, and the issue is a purely legal one.

With this, I turn to the points on appeal, which correspond to Counts I and II of Appellants' petition. Because I believe we should review the legal issues raised regarding the Commission's record, I would review the arguments in each point as they were raised by Appellants' corresponding counts of their petition.

Point I

Appellants argue in Count I of their petition that the public hearing conducted by the Commission was legally insufficient because it failed to allow participants to address the true subject of the Amendment, which Appellants argue was Ameren's proposed coal-ash landfill. I disagree that the hearing was legally unfair.

As the majority notes, failure to comply with a statutory hearing requirement renders a zoning ordinance void. State ex rel. Freeze v. City of Cape Girardeau, 523 S.W.2d 123, 126 (Mo. App. 1975). At the same time, as noted by the majority, there is a dearth of Missouri case law explicating the fairness threshold for such a hearing in the legislative context, as here. The majority therefore turns to the plain meaning of the word "hearing" as found in the dictionary, concluding that the legislature intended that members of the public would have an opportunity to present their sides of the case and the Commission would listen. Maj. op. at 10 (quoting Merriam-Webster's Collegiate Dictionary 574 (11th ed. 2012)).

While I agree with the majority that fairness is fundamental to any public hearing, which means the hearing should afford an opportunity for affected parties to be heard regarding a proposed zoning amendment, I also believe the standard of fairness in the legislative context is influenced by the purpose of a legislative hearing, as distinct from a judicial hearing. To restate, zoning is a legislative function, in exercise of which "the governmental body has great latitude." Furlong Cos., Inc. v. City of Kansas City, 189 S.W.3d 157, 163 (Mo. banc 2006). Therefore, statutes requiring hearings on zoning proposals do so in order to aid the governmental body in making an informed decision. See 8A MCQUILLIN MUN. CORP. Section 25:271 (3d ed. Supp. 2013) (hearing on zoning proposal is "in the nature of a legislative proceeding, the purpose of which is to ascertain pertinent information touching the zoning matter under consideration, including the views, interests, and objections of residents in the vicinity"); see also Montgomery v. Bremer County Bd. of Superiors, 299 N.W.2d 687, 693 (Iowa 1980) (holding that type of hearing contemplated in enabling statute for rezoning was "comment-argument"; purpose of hearing was primarily to aid board in gathering information to discharge legislative function); Miner v. City of Yonkers, 189 N.Y.S.2d 762, 768 (N.Y. Sup. Ct. 1959) (stating "purpose of a provision for a public hearing by a legislative body is to guard against hasty legislative enactments and to insure informed and deliberate action by the body").

Thus, while a legislative hearing must afford interested parties an opportunity to share their views and evidence to support those views, the reason for doing so is to serve the ultimate purpose of the hearing. Having all viewpoints presented assists the governing body in making an informed decision that best serves its constituents. To that end, a hearing allowing a reasonable opportunity for presentation of opinions and evidence for and against the proposed zoning amendment should suffice, even if it means all parties are unable to share their individual views in the manner or to the extent that they desire. See Miner, 189 N.Y.S.2d at 768 (where hearing "held at a customary place and beginning at a proper hour and there was a very full presentation of the pros and cons," it was "immaterial that certain individuals were inconvenienced or limited in the matter of the personal presentation of their respective individual cases for or against the proposed action"); accord Greater Garden Ave. Area Ass'n v. City of Webster Groves, 655 S.W.2d 760, 765 (Mo. App. E.D. 1983) (in administrative context, where council had shown interest in concerns of citizens and had conducted full hearing, limitation of post-hearing discussion to questions directed at particular parties was not abuse of discretion).

Accordingly, reasonable limitations on the presentation of such evidence and opinions, so long as they do not restrain a particular viewpoint regarding the proposed amendment or demonstrate bias on the part of the legislative body, should be permitted within the legislative body's discretion. The goal is for the legislative body to be informed fully about each viewpoint—made up of all persons who share that viewpoint— as a whole, rather than to fully hear each individual person's opinion. See Miner, 189 N.Y.S.2d at 768.

Thus, the question in the present case is whether the Commission's limitation on discussion here was reasonable in light of the circumstances. The public hearing requirement at issue is contained in Section 64.875, which states the following:

[N]o amendments shall be made by the county commission except after recommendation of the county planning commission, or . . . of the county zoning commission, after hearings thereon by the commission.

No order or recommendation that amends any of the provisions of these regulations may be adopted until a public hearing has been held on such order or recommendation.

Section 323 of the Land Use Regulations goes on to say that the published notice of any hearing must "[s]tate that substantial changes in the proposed amendment may be made following the public hearing." Section 323(d)(5). This is consistent with the proposition above, that the purpose of the hearing is to allow the Commission to make an informed decision regarding what eventual provisions are best for the citizens of Franklin County, in light of the affected citizens' views, and to alter and enact those provisions accordingly. The primary purpose of the hearing is not to allow comment on the final wording of every regulation that will be passed, but rather to provide a forum for comments for the Commission to help formulate the eventual wording that is passed. I believe the majority overlooks this crucial aspect of fairness in the context of a legislative hearing, and because of this, even the majority's determination of the adequacy of the petition fails to apply the proper fairness standard.

Regardless, reviewing the record, the Commission's process for adopting the Amendment was as follows. The public hearing process consisted of two stages. Initially, the Planning and Zoning Commission held a public hearing, after which it submitted a recommendation containing proposed amendment language to the Commission (Recommendation). Then, in line with the requirements of both Section 64.875 and Article 14, Section 323(a) of the Land Use Regulations, the Commission published notice of a hearing on the Recommendation. The notice stated the following:

The proposed amendments involve . . . utility and non-utility waste landfills and the definition and locations thereof.

The most controversial part of the Recommendation was within only the regulation section for utility waste landfills, where it stated that utility waste landfills would become a permitted use, subject to certain conditions. One of those conditions was that a utility waste landfill must be adjacent to and under common ownership with an existing power plant. Due to these conditions, the only power plant to which this regulation could apply at the time was Ameren's power plant located in Labadie, Missouri. Additionally, because at the time of the hearings on the proposed amendment, Ameren was in the process of making plans for a coal-ash landfill (Labadie landfill proposal), a type of utility waste landfill, Appellants argue that Ameren's Labadie landfill proposal was the true subject of the Recommendation.

The Commission's public hearing on the Recommendation took place on December 14, 2010, and then continued on February 8, 2011. On April 7, 2011, the Commission invited nine individuals with specialized knowledge who had testified at the public hearing to return to answer follow-up questions from the commissioners.

At the outset of the hearing on December 14, 2010, before taking any testimony, the Commission set some guidelines regarding how members of the public who were present could participate. These guidelines included that anyone who desired to testify must sign in and would be called in order, each person would be limited to seven minutes of testimony, and they could share their opinions but not ask questions of the Commission. Additionally, anyone could submit written exhibits or comments to the Commission during the hearing, and they did not have to testify in order to have their written submissions considered by the Commission. Finally, the Commission's presiding commissioner, John Griesheimer (Commissioner Griesheimer), clarified the subject of the hearing:

[W]e are here . . . to hear comments and opinions and testimony on landfills, on utility waste landfills and landfills in general. So if we start going off referring to Ameren and the proposal, . . . there is no proposal. There hasn't been anything filed yet, so that's going to be a totally separate issue. All we are here [to do] tonight is to comment, positive or negative, on the proposed regulations about utility waste landfills . . . . If we go off on a tangent about Ameren or about fly ash and all that, . . . I will interrupt you and say please stick to the issue itself, and that is "the regulation that is before us for the Planning and Zoning Commission."

The Commission then heard testimony from 43 members of the public who were present. Of those, three testified in favor of the Recommendation, and the rest were not in favor. At least six witnesses were permitted to testify about Ameren or refer to the Labadie landfill proposal without interruption. Commissioner Griesheimer did interrupt three witnesses and tell them to focus on the language of the Recommendation. Two witnesses reached the seven-minute time limit, received an additional minute to testify, did not finish their testimony in that time period, and were not given any additional time. The Commission received 36 exhibits that evening.

The Commission continued the public hearing on February 8, 2011. Before receiving any testimony that day, Commissioner Griesheimer reiterated the same time limits regarding public testimony, as well as the ability to submit written exhibits or testimony. Additionally, only individuals who did not testify at the first hearing date would be permitted to testify at the continuation of the hearing on February 8, 2011, and again, the witnesses were not permitted to ask questions of the Commission. Commissioner Griesheimer did not state any limitation regarding the content of testimony. The Commission then heard testimony from 46 witnesses; all but two opposed the Recommendation. At least five witnesses testified specifically about Ameren's Labadie landfill proposal. The Commission received 30 documents, including written statements and exhibits, and Commissioner Griesheimer indicated they had also received several exhibits by electronic mail.

Finally, on April 7, 2011, the Commission invited nine witnesses with specialized knowledge who had testified previously to return in order for the Commissioners to ask follow-up questions. Commissioner Griesheimer stated that the proceedings were limited only to what had been addressed during the previous two sessions of the public hearing, and that no new evidence would be received. The Commissioners then heard information regarding coal-ash landfills in general and all the potential implications of such a landfill to the environment, as well as possible specifications for and projected effects of the Labadie landfill proposal in specific. The Commission considered all of this information over several months and altered the language of the Recommendation before finally adopting the Amendment on October 25, 2011.

Appellants' petition asserts that this procedure failed to comply with the hearing requirements contained in Section 64.875 and in Article 14, Section 323 of the Land Use Regulations. After reviewing the transcript of the proceedings before the Commission, spanning over 1,000 pages of witness testimony over three days in the legal file on appeal, as well as just over 3,000 pages of exhibits received by the Commission and 300 pages of communications received by the Commission that are included in the legal file, I disagree. I would conclude that the Commission conducted a legally sufficient hearing regarding the proposed zoning amendments.

Not only did the Commission hold a public hearing as required, but the Planning and Zoning Commission did as well. Both hearings spanned multiple days and included hours of testimony and numerous written submissions. The one limitation imposed regarding content was that witnesses could not speak specifically about Ameren's Labadie landfill proposal, as it was premature given the fact that it may or may not conform to the regulations that the Commission may or may not eventually adopt. Moreover, the Recommendation language itself, addressing many subjects, made clear that all of those were the subject of the hearing. A specific proposed utility waste landfill was at best ancillary to the subject of utility waste landfills, which was just one of the subjects of the Recommendation. Therefore, while witnesses were permitted to discuss utility waste landfills in general and their concerns about coal-ash landfills in particular, as they directly relate to the land in Franklin County, the parties presiding over both hearings attempted to limit discussion specifically about Ameren. Even with that, some discussion about Ameren was allowed, and at the session on April 7, 2011, commissioners asked questions specifically about Ameren's processes and what the Labadie landfill proposal might entail.

Thus, in my view, the Commission imposed a reasonable limitation because the heart of the utility waste landfill regulations portion of the Recommendation had to do with the propriety of allowing a utility waste landfill in Franklin County. And, if a landfill was to be allowed, the purpose of the hearing was to inform the Commission about what kind of restrictions must be imposed so that the landfill would be safe. Only then, once standards had been established to ensure the safety of Franklin County residents, would it be appropriate to scrutinize a specific proposal and determine if such a landfill would in fact be safe. Moreover, despite this limitation, as the Commission received testimony over the course of the hearing, it chose not to enforce that limitation rigidly, or even at all by the end. Tins is ostensibly because it became clear that the building of a utility waste landfill adjacent to Ameren's power plant, while not the primary topic of the Recommendation, was dependent on any change to the zoning code.

I believe the record makes clear that this hearing procedure allowed all viewpoints to be fully presented, in line with the purpose of a legislative hearing. Everyone who wanted to speak was given an opportunity to do so. No one was stopped from discussing the dangers of coal-ash landfills or the impact of such a landfill in Franklin County and how one should be regulated if permitted. The clear majority of the testimony presented before the Commission was against the Recommendation. While expressing a desire to focus on the language of the Recommendation, the Commission also expressed numerous times a desire to allow everyone to speak and to hear all sides of the issue. The Commission conducted a follow-up session to ask specific questions of both opponents and proponents of the Recommendation who had specialized knowledge to contribute, which included questions about the Labadie landfill proposal specifically. I simply cannot see how, given the purpose of the hearing to inform the Commission about the various viewpoints of the implications of the Recommendation, this hearing was unfair. Though the majority of people who testified at these hearings are extremely dissatisfied with the decision of the Franklin County Commission, this does not mean that these citizens were not given an opportunity to testify and express their concerns, opposition, fears, and anger over the Recommendation.

Moreover, I believe we enter dangerous territory as it relates to our constitutional doctrine of separation of powers if we stray beyond confirming the minimum requirements of fairness are present and instead dissect a thorough legislative hearing such as this one, purporting to dictate the particular aspects of a legislative body's hearing. We are no more entitled to do this than a legislative body is entitled to tell a court how it should exercise its discretionary powers.

In any event, there is nothing from this record that convinces me that the Commission failed in its legislative duties to comply with the requirement of a public hearing for both the statute and applicable Land Use Regulations. I believe to hold otherwise would elevate form over substance. Therefore, I would find that the trial court properly denied relief on Count I of Appellants' petition. Accordingly, I would deny Point I of Appellants' appeal.

Point II

Appellants argue that the trial court erred in upholding the Amendment because it fails to promote the health, safety, and general welfare of Franklin County citizens as required by Franklin County's Land Use Regulations. I disagree.

As previously established, we review the decision of the Commission, rather than that of the trial court. See Dotson, 941 S.W.2d at 592. "The legislative body . . . has the duty to determine the use classification to be given any particular area." Desloge v. St. Louis County, 431 S.W.2d 126, 131 (Mo. 1968). In this case, that legislative body is the Commission. The Commission has great latitude in making zoning decisions. See Furlong Co., 189 S.W.3d at 163. The Commission's decisions are presumed valid, and they will not be overturned unless they are clearly arbitrary and unreasonable. See Desloge, 431 S.W.2d at 131; State ex rel. Heluion, Ltd. v. Jefferson County, 964 S.W.2d 531, 536 (Mo. App. E.D. 1998). Appellants, as challengers of the Amendment here, have the burden of showing that the Commission's decision to adopt the Amendment was unreasonable. See Desloge, 431 S.W.2d at 132; State ex rel. Kolb v. County Court of St. Charles County, 683 S.W.2d 318, 321 (Mo. App. E.D. 1984).

The parties disagree regarding the meaning of "unreasonable," and in turn the level of deference we pay the Commission's decision on appeal. In review of legislative decisions, courts discuss the legal test using both the terms "substantial evidence" and "fairly debatable." As these terms are applied in the legislative context, in a way that does not invade the legislative process and upholds the constitutional! separation of powers doctrine, these two terms indicate the same scope of review.

In Binger v. City of Independence, the Supreme Court of Missouri discussed judicial review of a legislative decision, quoting an earlier Missouri Supreme Court case:

The so-called "debatable" rule merely means that if there is substantial evidence both ways, then the legislative decision is determinative.

If we determine . . . as a matter of law that there is no substantial evidence to show the annexation was reasonable and necessary, as the court did in Graeler, then the annexation must be set aside. However, if the court concludes from the record that there is substantial evidence that the annexation was reasonable and necessary, then the issue was at least debatable and the legislative decision must be permitted to stand.

Thus, for us to affirm, there should be substantial evidence on the record here to support the Commission's decision; because if there is not, then its decision was most likely arbitrary. See Inserra. 248 S. W.3d at 646. The existence of substantial evidence to support either decision by the Commission requires us to affirm its legislative decision, as legislative decisions are presumed valid, and we may not substitute our opinion for the Commission. See id.; Elam v. City of St. Ann, 784 S.W.2d 330, 335 (Mo. App. E.D. 1990).

Applying this test to the record here, I would find that there is substantial evidence in the record to show that the Commission's decision regarding the Amendment was fairly debatable. Thus, I would find we are required to let the Commission's legislative decision stand.

The relevant regulation is contained in Article 14, Section 325 of Franklin County's Land Use Regulations:

Any . . . amendment must promote the health, safety, morals, comfort and general welfare of Franklin County by conserving and protecting property and building values, by securing the most economical use of the land and facilitating the adequate provision of public improvements in accordance with the master plan adopted by Franklin County.

However, this language seems to be drawn from the stated purpose of a Missouri county's police power, of which zoning is an exercise. "The purpose of police power is to promote the public health, safety, and welfare." St. Charles County v. St. Charles Sign & Elec., Inc., 237 S.W.3d 272, 275 (Mo. App. E.D. 2007) (quoting Bezaviff v. City of St. Louis, 963 S.W.2d 225, 229 (Mo. App. E.D. 1997)). Regarding zoning, this Court has interpreted that purpose as follows:

To determine whether an ordinance is enacted pursuant to a legitimate exercise of police power, the court considers whether the requirements of the ordinance have a substantial and rational relationship to the health, safety, peace, comfort, and general welfare of the inhabitants of the municipality. . . . If reasonable minds might differ as to whether a particular ordinance has a substantial relationship to the protection of the general health, safety, or welfare of the public, then the issue must be decided in favor of the ordinance.

The concerns raised by Appellants are the following: (1) that the Amendment fails to protect property values as required by Article 14, Section 325 of the Land Use Regulations; (2) that there is no evidence that the Amendment promotes the health and safety of Franklin County, based on evidence that coal ash contains harmful toxins, the various risks of ingestion of those toxins, and the site of the Labadie landfill proposal poses various risks to the water supply; (3) that the Amendment does not promote the general welfare of Franklin County, based on possible liability exposure as well as increased truck traffic through Labadie; and (4) that the Amendment fails to conform to Franklin County's master plan, which includes goals to preserve the rural character of Franklin County, to minimize ground contaminants to protect groundwater, and to keep development out of flood-prone areas.

The Commission heard conflicting evidence regarding each of these concerns, and the Commission was charged not only with taking into account the concerns of citizens who lived in the area of Ameren's plant, but the entire county as a whole. A primary task of legislating is weighing competing interests and determining the best outcome for its constituency as a whole. Sometimes, that even requires choosing between what individual legislators may view as the lesser of two evils. Unfortunately, especially when it comes to regulating industries that provide services but the process of providing those services can potentially produce adverse effects on the environment or individuals, there is not always a legislative decision that results in a purely positive outcome.

It was the Commission's duty to sort all of this evidence out and arrive at a decision. Among the substantial evidence to support the Commission's eventual Amendment language, the Commission heard evidence that the coal ash from Ameren's Labadie plant had been tested and did not contain a dangerous level of toxins, that the Labadie landfill proposal contained adequate safeguards to prevent both airborne toxins and water contamination, and that the state regulations allowed for this kind of development in the floodplain. The Commission heard evidence that a newly-designed landfill of this sort would offer greater protection than the existing coal ash ponds, which were leaking. The Commission also heard evidence that allowing a landfill next to the plant would reduce truck traffic. The Commission heard evidence regarding property values surrounding landfills in other states, but also had to take into account the fact that there is already an existing plant and coal ash pond in Labadie. The Commission did hear evidence that it was unlikely that surrounding property owners would be able to see the landfill described in the Labadie landfill proposal, and there was also evidence that suburban development had flourished in some areas of Franklin County from which the plant was visible. The Commission was informed regarding existing state and federal regulations applicable to utility waste landfills, and the Amendment language the Commission adopted contained more restrictive regulations. The language in the Amendment also differed substantially from the Recommendation, indicating that the Commission weighed the evidence and testimony received.

The record here contains substantial evidence from which the Commission could have reasonably found that the requirements eventually contained in the Amendment have a substantial and rational relationship to the health, safety, and general welfare of Franklin County, and are in conformity with state law. The Commission was the legislative body charged with weighing all the competing interests of its citizens. There is no evidence that the Commission's decision was unreasonable or arbitrary—to the contrary, it is clear the eventual language adopted was the product of the Commission's consideration of a wide range of viewpoints and an extensive amount of information over a period of several months. Accordingly, I would find that we are unable to reverse the Commission's decision, whether we agree with the decision or not. I would therefore deny this point.

Conclusion

I respectfully disagree with the majority's standard of review. Under the applicable certiorari procedure for review of this legislative zoning decision as well as the circumstances of this case, I would find that that we can review the questions raised in Count I regarding the legality of the Commission's decision in light of the Commission's record. Based on the record and applicable law, I would find that Appellants have failed to show either that the Commission's process of adopting the Amendment was illegal or that the Commission's decision was clearly arbitrary and unreasonable. Thus, I would affirm the decision of the Commission. However, in light of the issues involved here, I concur in transferring this case to the Missouri Supreme Court.

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Gary M. Gartnera, Jr., Judge