The would-be developers of a 152-unit apartment complex just outside of Arnold are suing the Jefferson County Council for denying the rezoning request they needed.
KAB Construction of Imperial and its owners, Larry Barnes and Lisa Barnes, have filed suit against the council in an effort to overturn the denial or force a new hearing.
The suit also asks the court to require the county to pay KAB its legal fees and “any other and further relief” that the court deems proper. It also asks the court to rule that the County Council’s reasons for denial “were not supported by substantive evidence and were arbitrary, capricious and unreasonable.”
The lawsuit was filed in late October in Jefferson County Circuit Court, and the case has been assigned to Div. 1 Circuit Judge Joe Rathert.
The county filed a motion asking Rathert to dismiss the case in late December. He has yet to rule on that motion.
Jonathan Skrabacz of the Breeze Westhoff LC law firm in Festus said he would not comment on pending litigation, nor would Jason Cordes, the assistant county counselor.
County Council chairman Charles Groeteke (District 4, Barnhart) also declined to comment about the lawsuit.
The County Council voted 6-1 on Sept. 26 against rezoning a 9.43-acre lot at the southwest corner of Old Lemay Ferry and Miller roads from single-family residential to planned mixed residential.
KAB proposed constructing eight apartment buildings to be called the Arnold Apartments at the site.
The Council passed a resolution that denied the rezoning request, which said the development would be incompatible with neighboring properties because of its density. It also said the single entrance to the development was insufficient.
The Jefferson County Planning and Zoning Commission, which advises the County Council on land-use matters in unincorporated areas, voted 5-0 on Aug. 25 to recommend denial of the request following a public hearing that attracted about 70 people.
KAB’s lawsuit alleges that the denial “was made for reasons that were not supported by competent evidence and contrary to the factors necessary for rezoning.”
The suit contends the reasons listed in the resolution to deny the rezoning were inconsistent with evidence presented at the public hearing, “which demonstrated that the planned development was consistent with surrounding areas, which include multi-family residential rental properties and apartment complexes.”
The suit also stated that the traffic study submitted by KAB concluded that “the effect on local traffic would be minimal.”
The suit asks the court to declare the county’s actions an inverse condemnation.
“The prohibition of allowing (KAB) to use the property for an economical or productive use is effectively a regulatory taking, for which (KAB) should be entitled to just compensation, including unspecified actual damages plus interest,” the suit says.
In his motion to dismiss, Cordes cites “numerous deficiencies” with KAB’s suit, including that it’s unclear whether the County Council is being sued as a single defendant or each member of the council is being named as a defendant.
In its header, the suit names current council members Groeteke, Scott Seek (District 5, Festus) and Dan Stallman (District 6, De Soto) along with former members Renee Reuter, Phil Hendrickson and Vicky James, who were members when the resolution to deny was approved.
However, as the motion to deny states, the body of KAB’s suit does not name nor describe the council members.
Perhaps curiously, the suit names current member Brian Haskins (District 1, High Ridge) as a defendant even though Haskins voted against the resolution denying the rezoning request.
Cordes also cites that KAB’s request for a review of the case by writ of certiorari – in this case, an order of the court for the county to produce its records so the court can review them – precludes any awarding of monetary damages or other compensation, including attorney’s fees.
“The court can do only one of three things regarding the county’s zoning decision; it can either reverse it, affirm it or modify it,” the motion to dismiss says.
Cordes also wrote that the above clause means the court cannot order the County Council to rehear the rezoning request.
The motion to dismiss also states that KAB’s case does not specify how the County Council’s action qualifies for an exception to the principal of “sovereign immunity,” which protects governmental agencies from liability arising from “performing acts classified as governmental functions.”