The opinion
EMERALD POINTE, LLC, )
)
Plaintiff-Appellant, )
)
vs. ) No. SD36725
)
TANEY COUNTY PLANNING ) Filed: April 8, 2021
COMMISSION and TANEY COUNTY )
BOARD OF ADJUSTMENT, )
)
Defendants-Respondents. )
APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY
Honorable Laura J. Johnson, Special Judge
REVERSED AND REMANDED
Emerald Pointe, LLC (“Emerald Pointe”) is the developer of Emerald Pointe
subdivision (the “subdivision”) located in Taney County. The Taney County Planning
Commission (the “Commission”) entered a stop work order (the “Stop Work Order”)
against Emerald Pointe when it began Phase 12 of the subdivision. Emerald Pointe filed
an appeal of the Commission’s issuance of the Stop Work Order to the Taney County
Board of Adjustment (the “Board”). After the Board denied Emerald Pointe’s appeal,
Emerald Pointe filed a Petition in the Circuit Court of Taney County pursuing relief
1
against the Commission, the Board, and their individual members. 1 After an evidentiary
hearing, the trial court affirmed the decision of the Board denying Emerald Pointe’s
appeal of the issuance of the Stop Work Order. 2 Emerald Pointe filed its timely Notice of
Appeal.
Emerald Pointe brings two points on appeal, including: (1) a contention that the
Board erred as a matter of law in (a) enforcing the grade requirements of its ordinance to
private property and (b) that the Board is estopped from imposing strict compliance with
the security requirements of the ordinance; and (2) that the Final Plat was overwhelming
evidence which supported the conclusion that the Taney County Subdivision Regulations
(“Subdivision Regulations”) and Taney County Road Standards (“Road Standards”) and
the grade requirements did not apply to the private roads in Phase 12, the plat was
approved in 2008, and it contains no reservations for security or grade requirements. 3
Because we find in favor of Emerald Pointe on Point I as a matter of law, we do not
address Point II. 4
1
The trial court dismissed the Petition; however, this Court reversed the judgment of dismissal and
remanded the case. Emerald Pointe, LLC v. Taney County Planning Commission, 578 S.W.3d 390
(Mo.App. S.D. 2019) (“Emerald Pointe I”).
2
At the hearing the individual defendants were dismissed without prejudice with the stipulation by the
Commission and the Board that they would not later challenge that the circuit court did not have all the
proper parties before it.
3
The issues are complicated by the fact that the Commission required, if necessary pursuant to section
64.825 RSMo Cum.Supp. 2004, a bond to enforce compliance with the road standards. There is no issue
that Emerald Pointe could provide a security bond if the grading requirements are not applicable to the
subdivision. The issuance of the security interest bond is only relevant to the underlying issue whether
Emerald Pointe must comply with the Road Standards. Therefore, we address that as the real issue in
contention between the Board and Emerald Pointe – do the road requirements apply to the subdivision.
4
Emerald Pointe contends in the alternative in Point I that the Board is estopped from imposing strict
compliance with the security requirements of section 64.825 and Article 8, Section 6. Because we agree
with Emerald Pointe’s first contention, we do not address the argument regarding estoppel.
2
FACTS
On December 20, 1993, the Commission issued a Division III permit to Emerald
Pointe’s original developer, Gary Snadon, to develop 604 acres in a hilly, wooded, rural
area of Taney County. Over the next 15 years, Emerald Pointe sought the Commission’s
approval for additional Division III permits. On May 19, 2008, the Commission issued a
Division III Permit #2008-0029 authorizing Emerald Pointe to plat fifty (50) acres more
or less into 160 residential lots, as Phase 12 of the subdivision. On September 17, 2008, 5
the Final Plat of Emerald Pointe Phase 12 was approved and signed by the Commission’s
Chairperson and the Planning Administrator, receiving the “Certificate of Approval by
the Commission.” The Commission approved and stated on the Final Plat “[t]his survey
does not violate the rules and regulations of the Taney County Development Guidance
Code.”
The Final Plat specifically states:
All streets as shown hereon are not dedicated to the public and shall be
private. Access along said road from public lake road #265-20 or Hill
Haven Road and Sercy Drive to the subdivision[] is hereby granted to all
existing and future lot owners. The county or local authorities shall
assume no responsibility for improvements or maintenance thereof. All
other easements are hereby dedicated to the public.
IN TESTIMONY WHEREOF, the undersigned manager has hereunto set
his hand this 15 day of July, 2008.
EMERALD POINTE, L.L.C.
___[signature of Gary Snadon]_____
Gary W. Snadon, Managing Member
....
NOTES:
5
The Final Plat was received, accepted and filed of record by the Recorder of Deeds, Taney County, on
September 18, 2008.
3
All lots have a 25’ building setback along all roads. All lot[s] have a 7.5’
sideyard setback and 10’ rear setback. All lots have a 15’ utility easement
along all roads. All lots are subject to setback lines and utility easements
by Taney County Planning Commission, Taney County, Missouri. No
access is permitted directly onto Hill Haven Road from the lots adjoining
said Hill Haven Road.
Restrictive Covenants are filed of record and are recorded in the records of
Taney County recorder’s office in [Document #116] Book [Slide J] at
Page [238].[ 6]
It is the twelfth and final phase that is at issue in this action. At the time that
Phase 12 was being implemented, all the necessary permits for construction were issued
and extended. Despite the permits and prior approval, the Commission caused a Stop
Work Order to be entered on September 21, 2016 by the Taney County Planning
Administrator. Although the initial reason for the issuance of the Stop Work Order was
for Emerald Pointe to provide a different form of security than had been provided in the
past, the underlying reason for the Stop Work Order was the Commission’s insistence
that Emerald Pointe comply with the Subdivision Regulations and Road Standards. The
Commission indicated that Section 3: Design Criteria and Standard, Section 3
Subsection 8 of the Road Standards addressing road grades had to be satisfied (those
standards required engineering construction plans and standards for high density streets).
Specifically, the Commission determined that the roads had to have a grade of fifteen
percent (15%) or less. Emerald Pointe maintained that the streets were private streets on
the approved Final Plat and that the local authorities assumed no responsibility for
improvement or maintenance of any of the roads at issue.
6
The Final Plat is labeled as document #116, then stamped twice (upper right and lower left) with a
slide/page stamp. One reads “Slide J, page 238” and the other “Slide J, page 237.”
4
Point I
In its first point, Emerald Pointe contends the denial of their appeal to the Board
was error because “Article 8, Section 6 of the Subdivision Regulations and grade
requirements of Road Standard Section 3 Subsection 8 do not apply as a matter of law to
private streets in a private, gated subdivision.” The Commission and Board contend that
all of the standards apply to all roads – including private roads – and the Stop Work
Order was valid to enforce the standards. Thus, the issue before the Board and on appeal
is whether the Road Standards regarding the grading of the roads, 7 as set forth in the
Subdivision Regulations, apply to the private roads as set forth in the Final Plat. Under
the facts before us, we agree that the road grading standards do not apply to the Final Plat
approved in 2008. 8
STANDARD OF REVIEW
We review the findings and decision of the Board, not the judgment of the circuit
court. Antioch Community Church v. Board of Zoning Adjustment of the City of
Kansas City, 543 S.W.3d 28, 33 (Mo. banc 2018); State ex rel. Teefey v. Board of
Zoning Adjustment of Kansas City, 24 S.W.3d 681, 684 (Mo. banc 2000). The scope of
judicial review is limited to a determination of whether the decision of the Board is
authorized by law and is supported by competent and substantial evidence upon the
7
The technical ability to enforce standards derive their authority from section 64.825 RSMo Cum.Supp.
2004. The Taney County Development Guidance Code (the “Code”), Subdivision Regulations and Road
Standards set forth the legal requirements for development.
8
The Commission and the Board contend that Emerald Pointe has not preserved this issue; however, it is
clear that from the issuance of the Stop Work Order and the appeal of that order that Emerald Pointe
notified the Commission that the imposition of the grading requirements contained in the Code, the
Subdivision Regulations, and Road Standards did not apply to private roads contained in a private, gated
community. That contention was and has been their defense to the Stop Work Order from the beginning.
The issue was preserved for the Board and for this Court.
5
whole record. Antioch, 543 S.W.3d at 33-34. This Court determines de novo whether a
decision is authorized by law as it is a legal question. Id.
In reviewing city ordinances, we apply the same general rules of construction as
are applicable to state statutes. State ex rel. Teefey, 24 S.W.3d at 684. The general rule
is to determine and give effect to the enacting legislative body’s intent of the ordinance.
Id. In an ordinance, the words contained therein should be given their plain and ordinary
meaning. Id. “Where two statutory provisions covering the same subject matter are
unambiguous standing separately, but are in conflict when examined together, a
reviewing court must attempt to harmonize them and give effect to both.” City of
Clinton v. Terra Foundation, Inc., 139 S.W.3d 186, 189 (Mo.App. W.D. 2004). The
general statute must yield to the more specific statute where harmonization is impossible.
Id.
Additionally, “‘zoning ordinances, being in derogation of common law property
rights, are to be strictly construed in favor of the property owner against the zoning
authority.’” State ex rel. Cushman Properties, LLC v. Board of Adjustment of City of
Branson, 453 S.W.3d 815, 818 (Mo.App. S.D. 2014) (quoting Rice v. Board of
Adjustment of Village of Bel-Ridge, 804 S.W.2d 821, 823 (Mo.App. E.D. 1991)). The
courts are to “‘give weight to the interpretation that, while still within the confines of the
term, is least restrictive upon the rights of the property owner to use the land as he
wishes[,]’” where a zoning ordinance is susceptible to more than one interpretation.
Coots v. J.A. Tobin Construction Co., 634 S.W.2d 249, 251-252 (Mo.App. W.D. 1982)
(quoting Frank’s Nursery Sales v. City of Roseville, 295 N.W.2d 604, 608-609(4)
(Minn. 1980)).
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APPLICABLE CODE, SUBDIVISION REGULATIONS AND ROAD STANDARDS
We must look at the applicable Code, Subdivision Regulations and Road
Standards to determine and give effect to the enacting legislative body’s intent of the
ordinance.
The Subdivision Regulations contain the following definitions:
Article 2. DEFINITIONS, INTERPRETATION and STANDARDS
....
Section 9. Definitions
....
Plat – Final
The final plan or drawing and any accompanying required data or
information which is submitted to the Planning Administrator for final
approval of a proposed subdivision and recording with the County
Recorder of Deeds.
....
Public Improvements
Those things that are constructed, installed or performed on public land, or
on land that is to become public in the subdivision process, including but
not limited to street and alley pavement, curbs, storm drainage facilities,
sidewalks, sanitary sewers and water lines, and including the grading of
such land.
....
Street, Private
Street under private ownership, control and maintenance. Requires
covenants approved by the Planning Administrator to provide for
maintenance.
The Road Standards provide the following definitions:
SECTION 1
7
DEFINITIONS
....
26. Public Improvements. Those things that are constructed, installed,
or performed on public land, or on land that is to become public in the
subdivision process, including but not limited to street and alley pavement,
curbs, storm drainage facilities, sidewalks, and sanitary sewers, and
including the grading of such land.
....
35. Streets. A way for vehicular traffic, whether designated with the
suffix as a street, highway, thoroughfare, parkway, throughway, road,
avenue, boulevard, lane, place, or however otherwise designated.
Further, the Road Standards address the differences between “Private Improvements” and
“Gated Communities/Private Communities” for street construction in the following
sections:
SECTION 2
STREET REQUIREMENTS
....
Section 13. Private Improvements:
1. Private improvements, if any, shown on the public improvement plans,
shall be clearly defined and marked as such. These improvements will
not be maintained by Taney County and, as such, an appropriate note
shall be included on the drawings.
Section 14. Gated Communities/Private Communities
1. Private streets in gated or private communities are encouraged to
construct their roadway infrastructure to the same design requirements
and specifications as public improvements. If these communities are
not built to these standards they may not be taken into the county
maintenance program.
The Board contends that Article 2, Section 2(A) of the Subdivision Regulations
negates any differences between public and private streets in the regulations:
8
Article 2. DEFINITIONS, INTERPRETATION and STANDARDS
....
Section 2. Conflict with Public and Private Provisions
A. Public Provisions
The regulations are not intended to interfere with, abrogate or annul
any other County Commission Order, rule or regulation, statute or
other provision of law. Where any provisions of these regulations
imposes restrictions, which differ from those imposed by any other
provision of these regulations or any other County Commission Order,
rule, or regulation or other provision of law, whichever provisions are
more restrictive or impose higher standards, shall control.
Further, the Board contends Article 8, Section 2 of the Subdivision Regulations applies.
Specifically:
ARTICLE 8. REQUIRED IMPROVEMENTS
....
Section 2. Streets
A. Unless otherwise approved by the Planning Commission, all
streets shall be public streets.
B. Public streets shall be designed and constructed in accordance with
the Taney County Road Standards
....
F. Private Streets
1. Private streets shall be permitted only with approval of the
Planning Commission.
2. Where private streets are permitted, the restrictive covenants
must contain provisions to assure maintenance of the streets,
sidewalks, and other common improvements. Restrictive
covenants must be approved by the Planning Administrator
and must be recorded with the final plat.
3. Only local streets may be designed as private streets.
9
4. Private streets shall be constructed in accordance with Taney
County Road Standards. Any private street located within the
ingress / egress / utility and drainage easement shall have the
same width as the right-of-way provided for local streets in the
Taney County Road Standards.
Article 8, Section 2 (emphasis added).
Appendix K of the Code (emphasis added) requires:
1. General Provisions
County road standards and requirements are defined and managed by
the Taney County Road and Bridge department. All construction must
adhere to the current published standards set for[th] in the Taney
County Road Standards.
The Road Standards provide in part:
SECTION 3
DESIGN CRITERIA AND STANDARDS
....
Section 8. Grade and Curves:
1. The minimum grade on curb and gutter streets shall be one-half
percent (1/2%). The maximum grade shall be eight percent (8%) on
arterials, twelve percent (12%) on collectors and fifteen percent (15%)
on local streets.
(Emphasis added.) The Road Standards define “Local Street” as:
SECTION 1
DEFINITIONS
....
19. Local Street. A street primarily providing direct access to abutting
property and designed to accommodate low-volume, low-speed traffic.
10
ANALYSIS
It is clear from reading the Subdivision Regulations and the Road Standards that
the legislative body in Taney County intended that there be such a thing as private roads
with different design requirements and specifications than public improvements.
Harmonizing Subdivision Regulations Article 8, Section 2(F) with Road Standards
Section 2, Subsections 13 and 14, given their plain and ordinary meaning, indicates that
Emerald Pointe’s private streets, located in a private gated community, do not mandate
the same design requirements and specifications as Public Improvements.
SUBDIVISION REGULATIONS
In the Subdivision Regulations, a differentiation is made between “Public
Improvements” and “Street, Private.” Public Improvements are defined as: “Those
things that are constructed, installed or performed on public land, or on land that is to
become public in the subdivision process, including but not limited to street and alley
pavement . . . .” The term “Street, Private” is defined as a “[s]treet under private
ownership, control and maintenance[,]” and maintenance is to be provided through
covenants approved by the Planning Administrator.
Emerald Pointe has private ownership over the streets in Phase 12 as they were
dedicated in the Final Plat as private streets with the county and local authorities
assuming no responsibility for the improvements or maintenance. The restrictive
covenants pertinent to Phase 12 were set forth and filed with the Recorder of Deeds in the
Final Plat. Every street in Phase 12 is identified by name and location on the Final Plat
and the words “Private” are delineated after each name. All streets in Phase 12 of the
Final Plat were specifically dedicated as “private” streets. These streets were not
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constructed on public land nor on land that was to become public. Section 64.825 and
Article 8, Section 6 of the Subdivision Regulations did not require security for
improvements such as “private streets” that were not within the definition of “Public
Improvements” under the Subdivision Regulations.
ROAD STANDARDS
In support of the Subdivision Regulations, the Road Standards dovetail with the
definition of “Public Improvements” as “[t]hose things that are constructed, installed, or
performed on public land, or on land that is to become public in the subdivision
process[.]” These definitions in the Road Standards express the intent that improvements
are to be classified as either public or private.
Further, the Road Standards define “Private Improvements” and “Gated
Communities/Private Communities.” The Road Standards specify that Private
Improvements must be “clearly defined and marked as such” and would not be
maintained by Taney County. The Road Standards state the “[p]rivate streets in gated or
private communities are encouraged to construct their roadway infrastructure to the same
design requirements and specifications as public improvements.” (Emphasis added.)
Clearly, the Subdivision Regulations contemplated that there would be private roads in
the planning of Taney County plats and roads. The consequence of roads not being in
conformance with the Road Standards is spelled out as “they may not be taken into the
county maintenance program.”
Article 8, Section 2(F)(4) of the Subdivision Regulations, which is cited by
Respondents as supporting its position, requires that “[p]rivate streets shall be constructed
in accordance with Taney County Road Standards.” That statement simply refers back to
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the Road Standards. The Road Standards provide for public improvements and private
improvements. Persons constructing private streets in gated or private communities are
only “encouraged” to construct their roadway infrastructure to the same design
requirements and specifications as public improvements. Thus, the option of allowing
private streets is set out in every provision of the Subdivision Regulations and the Road
Standards.
CONCLUSION
Taney County had the statutory authority to enact the Code, Subdivision
Regulations, and Road Standards. They did so. When Emerald Pointe came into
existence in 1993 as a subdivision and requested a permit for Phase 12 in 2008, Emerald
Pointe was in conformance with the Road Standards and Subdivision Regulations for
Taney County. At that time, the Commission was fully aware of the terrain of the
property and yet approved a plat which called for “private streets” in Phase 12. The Road
Standards create an exception to their public standards with the language, “unless
otherwise approved by the Planning Commission, all streets shall be public streets.” The
Commission approved Emerald Pointe’s private streets.
Because Emerald Pointe was given the authority to develop Phase 12 of the initial
plat, the Commission did not have the authority to enter the Stop Work Order in 2016.
The Board’s contention eight years after its initial approval of Phase 12, that there is no
difference between private roads and public roads, is not consistent with the Road
Standards and Subdivision Regulations. The designations regarding private and public
streets would have no meaning if we construe the Road Standards and Subdivision
Regulations in the manner suggested by Respondents. Thus, the fifteen percent (15%) or
13
less grade requirement of the Road Standards and any additional road specifications at
issue here are not required for Phase 12 of Emerald Pointe. The Board’s decision to
affirm the Commission’s Stop Work Order’s grading requirements for Phase 12 is not
authorized by law.
Emerald Pointe’s Point I is granted. For the foregoing reasons, we reverse the
judgment of the circuit court with directions that the cause be remanded back to the
Board with directions that the Board grant Emerald Pointe’s appeal of the Commission’s
Stop Work Order.
Nancy Steffen Rahmeyer, P.J. – Opinion Author
Jeffrey W. Bates, J. – Concurs
William W. Francis, Jr., J. – Concurs
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