A three-judge panel of the Missouri appeals court's Eastern District agreed Tuesday the state Supreme Court should consider arguments on whether a circuit court should have heard a group's complaints about a public hearing process.
Two of the three appeals court judges said Osage County Associate Circuit Judge Robert Schollmeyer was wrong in a Franklin County case when he agreed with the Franklin County Commission and Ameren Missouri that the county residents had been given a fair chance to discuss concerns about a proposed zoning change to allow Ameren to create coal-ash landfills in the Missouri River flood plain.
Eleven individuals who live near Ameren's coal-fired Labadie Power Plant and the Labadie Environmental Organization sued the commission after it changed the county's Unified Land Use Regulations in 2011 to permit construction of coal-ash landfills.
Ameren's Labadie plant is the only public utility power plant in Franklin County, and the utility was allowed to intervene in the case - but the residents complained they weren't allowed to mention Ameren or the specifics of its landfill plans.
The lawsuit argued the commission adopted the changes illegally because it failed to conduct valid public hearings.
"At the public hearing before the Planning and Zoning Commission," their lawsuit explained, "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.'"
And they made a similar claim about the county commission.
The lawsuit said both the presiding commissioner and county counselor interrupted speakers when they attempted to discuss Ameren Missouri's proposed Labadie landfill site" during the county commission's hearing, even though Ameren had announced its proposal in 2009 and proposed to build in the Missouri River flood plain.
Their lawsuit also questioned the amendments' approval because they didn't promote the health, safety and general welfare of the residents of Franklin County, as required by the land use regulations.
After hearings, Schollmeyer granted the commission's and Ameren's requests to dismiss the first claim.
And he agreed with the commission and utility that the zoning changes didn't violate the land use regulations.
In a 25-page ruling, Judge Lisa S. Van Amburg wrote that "Missouri courts have yet to define the exact contours of a valid public hearing for purposes of adopting a zoning amendment."
But, after reviewing how the word "hearing" is used in state law and a dictionary, Van Amburg wrote: "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.'"
Van Amburg and Judge Patricia L. Cohen determined the Franklin County "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."
Therefore, they said, Schollmeyer should not have dismissed that complaint and, without holding a hearing on it, "a final judgment upholding commission's decision to adopt the amendments is premature."
Judge Gary M. Gaertner Jr., the third judge on the panel that heard the appeal, disagreed with his colleagues' ordering the trial court to reopen the case, but agreed that the case first should be transferred to the Supreme Court.
At the end of the business day Tuesday, the Supreme Court had not yet opened a case file for the transferred case nor set a date for oral arguments.