Presentation on Zoning and Land Use Controls
by Professor Jerry Organ
of the University of Missouri-Columbia School of Law
to the Saline County Study Committee
on March 22, 1999

PLANNING AND ZONING

When done correctly, a community, in this case Saline County, would develop a vision for what it wants the county to look like in terms of development over the next decade or two and then create a zoning plan designed to accomplish the vision. Although zoning is supposed to occur pursuant to a "comprehensive plan," the Missouri Court of Appeals has held that the zoning ordinance itself can be the "comprehensive plan." State ex rel. Chiavola v. Village of Oakwood, 886 S.W.2d 74 (Mo. Ct. App. W.D. 1994). Nonetheless, to move from an environment without zoning to an environment with zoning requires public approval. The best way to garner such public support for zoning is to develop a zoning plan based on public input.

Notably, one significant piece of the land use puzzle in a rural county such as Saline County is agricultural land. However, based on the Missouri Supreme Court’s recent interpretation of the township zoning statute (which has language comparable to the county zoning statute), the county zoning statute, section 64.620 Missouri Revised Statutes, does not authorize the regulation of agricultural activities within a county zoning ordinance. Premium Standard Farms, Inc. v. Lincoln Township of Putnam County, 946 S.W.2d 234 (Mo. 1997). Thus, a zoning ordinance would have, at most, only an indirect effect on agricultural land uses, i.e., by providing that certain areas be developed as residential, commercial or industrial, the zoning ordinance might encourage such development to the exclusion of agricultural development.

COUNTY HEALTH ORDINANCE

Some counties have tried to get around the prohibition on zoning regulation of agricultural activities by passing county health ordinances that regulate agricultural activities under the authority contained in section 192.300 of the Missouri Revised Statutes. Although County Health Ordinances may provide a vehicle for counties to regulate some agricultural activities, the ordinances likely will need to look like a health ordinance, not a disguised zoning ordinance, to survive judicial review. For example, Pettis County was one of the first to adopt a health ordinance. The version I saw read much like a zoning ordinance, with lots of location and set-back language. This likely would be subject to a successful challenge as a thinly disguised attempt at zoning. By contrast, Linn County recently passed a health ordinance which, I believe, contains both some set-back language and some chemical specific airborne concentrations. Although the set-back language may be susceptible to a successful challenge as an unauthorized attempt to "zone" agricultural activities, to the extent that the chemical specific airborne concentrations are based on legitimate health concerns, that portion of the ordinance likely could survive a judicial challenge. Given that there is ongoing litigation concerning the Linn County Health Ordinance, it probably would make sense to wait to see how that gets resolved on appeal before deciding whether and how to make use of a county health ordinance to address some of the concerns associated with agricultural activities.

AIR CONSERVATION COMMISSION ODOR RULE

The Air Conservation Commission is considering an odor rule, which if approved, likely will result in a challenge based on section 643.055 Missouri Revised Statutes. Section 643.055 constrains the authority of the Clean Air Commission so that it cannot pass any rules or standards that are more stringent than or take effect earlier than required under the federal Clean Air Act. The federal Clean Air Act does not directly regulate odor. Thus, a question exists as to whether the Air Conservation Commission has the authority to regulate odor, given that the regulation of odor could constitute a rule or standard that is more stringent than the federal Clean Air Act. Those challenging the odor rule will likely argue that because there is no regulation of odor in the Clean Air Act, any regulation of odor by the Air Conservation Commission should be disallowed because it is inherently more stringent than the Clean Air Act. By contrast, the Air Conservation Commission will likely argue that the statute only restricts the authority of the Air Conservation Commission to the extent that the federal Clean Air Act addresses the issue. Given that the federal Clean Air Act does not address odor, section 643.055 should not operate as a constraint on the Air Conservation Commission’s authority to promulgate an odor rule.

TAX INCENTIVES

You can use tax increment financing to encourage certain types of developments, but you need to think really seriously about whether it truly is advantageous to do so. There are some law suits in some municipalities charging that they are giving away too much of the tax base with various financing incentives, and in effect, harming entities (such as school districts and ambulance and fire districts) by cutting the tax base needed to support these services. Any consideration of tax increment financing should be done in a very circumspect matter with all affected stakeholders (all possibly affected taxing entities) at the table.

PRIVATE LAND USE CONTROLS

Individual landowners have the ability to use restrictive covenants or conservation easements to impose restrictions on their own land. These types of private land use controls can be structured to benefit individuals or to benefit defined parcels of land. If they are structured to benefit an individual, the restrictions generally last only for the individual’s life. If they are designed to benefit land, and there is an express intent to have the burden and benefit the heirs and assigns and successors of the burdened and benefitted parcels, then the restrictions generally are said to "run with the land" and be binding upon and of benefit to the subsequent owners of the affected parcels of land. Because these are voluntary structures, they can not be imposed on unwilling landowners (although once they are agreed to by a landowner, if structured properly, they can be enforced against subsequent, unwilling landowners). For example, if you have several people around Arrow Rock interested in preserving the general aesthetic environment of Arrow Rock, they could form an association and impose mutually restrictive covenants that prevent certain land uses on their land. However, they would not be able to impose such restriction on a neighbor’s land without the neighbor’s consent. If they structure the restrictions properly, however, they would continue to bind subsequent owners of their land. The State has some programs to encourage conservation easements (designed to preserve land in something of its natural state). The Department of Conservation probably is the best place to pursue information about such programs.

Although many people intend such restrictions to preserve property value (by preventing incompatible uses from neighboring properties that might diminish property values), because the restrictions limit the uses to which property can be put, they can have the effect of dampening property values when increased demand would otherwise increase property values. This can impact the individual landowner as well as the community, in the sense that a system of restrictive covenants can have the effect of preventing growth in the tax base (by dampening the growth in property values) with respect to the parcels of land subject to the restriction.

DISCUSSION OF STATUTES

Although several bills are before the legislature right now that may impact land use issues, none looks promising for passage, as most are still stuck in committee. Nonetheless, the legislature did pass a statute in 1996, section 64.725 Missouri Revised Statutes, which authorizes the creation of "a temporary county planning commission prior to an election to adopt county planning and zoning. Such planning commission shall prepare a county plan for all areas of the county, whether such areas are incorporated or unincorporated, outside the corporate limits of any city, town or village which has adopted a city plan in accordance with the laws of this state." The benefit of this provision is that it allows a county to develop through a public process a specific zoning plan for the community to vote on in deciding whether to adopt zoning.