P&Z Boards Seated In Violation of Statutes

Local business owner Theresa Townsend was recently targeted by Don Hathaway and Camden County Planning and Zoning after an altercation with the Camden County Sheriff Department. Ms. Townsend was harassed, bullied and eventually assaulted by her neighbor during a property dispute. Although there was video evidence of the assault, and although that video seems to have been reviewed by CCSD, no action was taken against her assailant.

Eventually, she was told by Camden County Sheriff Dwight Franklin that his department was not going to pursue charges. In fact, he told her she was free to call the Missouri Highway Patrol. Franklin then hung the phone up in her ear.

In the wake of this, Planning and Zoning began ritualistic harassment of Ms. Townsend’s business, Gidgets and Gadgets, an adult novelty store located just off Highway 5 in Sunrise Beach. This harassment included a visit from Planning and Zoning administrator Don Hathaway. Hathaway had with him two detectives from the CCSD.

Hathaway measured the store and began inventing violations.

Ms. Townsend, concerned about how both the ULC and rule of law were being discarded in her case, began looking at Camden County Planning and Zoning. Her research led her to uncover violations of the Sunshine Law. These infractions are currently being investigated by Missouri Attorney General Chris Koster.

In addition to these violations, Ms. Townsend discovered that Planning and Zoning was being administered in violation of Missouri State Statutes. Below, you will find Ms. Townsend’s research into the statutes governing planning and zoning. It has been the stance of the county commission, presumably based on legal advice from county attorney Charles McElyea, that Camden County is allowed to administer P&Z as a third class county, despite its classification as a first class county.

In her research, Ms. Townsend was unable to find a legal basis for this assertion. Missouri state statutes are clear regarding how a first class county, such as Camden, must administer Planning and Zoning. The improper seating of both the Planning and Zoning Commission and the Board of Adjustments exposes the tax payers of Camden County to untold liabilities.

Ms. Townsend attempted to bring these questions to the commission, where she was consistently ignored. As a result, Ms. Townsend sent the research she had compiled to the Missouri State Attorney General. The AG’s office confirmed yesterday that they are conducting an investigation of Sunshine Law violations. The AG’s office forwarded the improper administration of planning and zoning to the Missouri Ethics Commission for further action.

Below is an excerpt from her most recent correspondence with county officials, including supporting statutes:

As you can see, the statutes you have been quoted are wrongly being applied to the board of adjustment and to the P&Z commission. The first statute 138.085 refers to a board of equalization which deals with TAX issues. The second, 64.610 refers to 2nd and 3rd class counties and has specific oversight ( If there is a county board of zoning adjustment as provided in section 64.660, such board shall be appointed to serve as the board of adjustment for the building or setback line regulations.). The third 64.660 also deals with 2nd & 3rd class counties. According to 48.050 This should have been corrected SIXTEEN years ago …..

Missouri Revised Statutes Chapter 48 County Classification Section 48.050

August 28, 2013

Effect of change of class on county offices and officers.

48.050. Any elected county official whose office may be abolished or consolidated with another office as a result of the change of the county from one class to another shall continue to hold the office to which he was elected for the term for which he was elected. Any office which may be established as a result of the change of the county from one class to another shall be filled in accordance with the provisions of the law relating to the filling of vacancies for such office.

Missouri Revised Statutes Chapter 138 Equalization and Review of Tax Assessments Section 138.085

August 28, 2013

County board of equalization, certain first and second class counties.

1. In all first class counties not having a charter form of government and in each second class county which contains a portion of a city having a population of at least three hundred thousand and which adjoins a first class county which does not have a charter form of government, there may be a board of equalization consisting of three taxpaying property-owning citizen, residents of such county for five years next before their appointment, who shall be appointed by the county commission for three-year terms with one member being appointed annually on the second Monday in January of each year; after the county commission makes the first appointments on the full three-member board on the second Monday in January, 1981. The initial appointments shall be for one-, two- and three-year terms, respectively.
2. Each member shall take an oath similar to that required by law of members of other county boards of equalization.
3. Compensation shall be fixed by order of the county commission.
4. Vacancies or absences on the board of equalization caused by death, incapacity to perform duties, failure to attend three consecutive meetings, or resignation shall be filled forthwith by appointment by the county commission.

(L. 1980 S.B. 802, A.L. 1985 S.B. 152)
Effective 7-11-85

Board of Equalization

The Board of Equalization (BOE) is a Statutory Board governed by the Missouri Constitution and Missouri Revised Statutes. It has the responsibility of determining the correct value of real and personal property for individuals, businesses and manufacturers.

The Board also considers requests for exemption from real and personal property taxes submitted by not-for-profit organizations based upon the ownership and use of the property.

Missouri Revised Statutes Chapter 64 County Planning–Zoning–Recreation–Natural Streams and Waterways Section 64.610

August 28, 2013

Powers of board of adjustment–hearing on regulations on setback lines (second and third class counties). 64.610.

The county commission shall provide for a board of adjustment with powers to modify or vary the regulations, in specific cases, in order that unwarranted hardships, which constitute an unreasonable deprivation of use as distinguished from the mere grant of a privilege, may be avoided, the intended purpose of the regulations being strictly observed and the public welfare and public safety protected. If there is a county board of zoning adjustment as provided in section 64.660, such board shall be appointed to serve as the board of adjustment for the building or setback line regulations. If there be no county board of zoning adjustment, the personnel, length of terms, method of appointment and organization of the board of adjustment for the building or setback line regulations shall be the same as provided in section 64.660 for the board of zoning adjustment. Regulations authorized under section 64.600 shall not be adopted, changed or amended until a public hearing has been held thereon by the county planning commission, public notice of which shall be given in the same manner as provided for the hearing in section 64.550.

(L. 1951 p. 406 § 8)

Missouri Revised Statutes Chapter 64 County Planning–Zoning–Recreation–Natural Streams and Waterways Section 64.600

August 28, 2013

Setback lines on major highways (second and third class counties). 64.600.

After any plan for major highways, or portion thereof, has been prepared by the county planning commission, filed and certified as provided in section 64.550, the county commission shall be authorized and empowered to establish, regulate and limit building or setback lines on such major highways outside the corporate limits of municipalities and to prohibit any new building being located within such building or setback lines, and to amend such regulations from time to time. All orders of the county commission relating to such building or setback lines shall be entered of record and certified copies thereof shall be filed with the county planning commission, and in the office of the recorder of deeds.

(L. 1951 p. 406 § 7)

Missouri Revised Statutes Chapter 64 County Planning–Zoning–Recreation–Natural Streams and Waterways Section 64.660

August 28, 2013

County board of zoning adjustment–members–organization–appeals to, procedure–powers of board (second and third class counties). 64.660.

1. Any county commission which appointed a county planning or county zoning commission and which has adopted a zoning plan, as provided in sections 64.510 to 64.695, shall appoint a county board of zoning adjustment. The board shall consist of five residents of the county, but not more than two shall be residents of the incorporated area of the county and not more than one may be a member of the county planning commission or the county zoning commission. The membership of the first board appointed shall serve respectively: One for one year, one for two years, one for three years, two for four years. Thereafter members shall be appointed for terms of four years each. Members shall be removable for cause by the county commission upon written charges and after public hearings. Vacancies shall be filled by the county commission for the unexpired term of any member whose term becomes vacant. Members of the board shall serve without compensation, but may be reimbursed for expenses incurred for attendance at not more than four meetings per year in an amount to be set by the county commission, not to exceed ten dollars per meeting. The board of zoning adjustment shall elect its own chairman and shall adopt rules of procedure consistent with the provisions of the zoning regulations and the provisions of sections 64.510 to 64.695. The chairman, or in his absence the acting chairman, may administer oaths and compel the attendance of witnesses. All meetings of the board of zoning adjustment shall be open to the public, and minutes shall be kept of all proceedings and official actions, which minutes shall be filed in the office of the board and shall be a public record. Appeals to the board of zoning adjustment may be taken by any owner, lessee or tenant of land, or by a public officer, department, board or bureau, affected by any decision of the administrative officer in administering a county zoning ordinance. Such appeals shall be taken within a period of not more than three months, and in the manner provided by the rules of the board. An appeal shall stay all proceedings in furtherance of the action appealed from, unless the officer from whom the appeal is taken shall certify to the board that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. The board of adjustment shall have the following powers and it shall be its duty:

(1) To hear and decide appeals where it is alleged there is error of law in any order, requirement, decision or determination made by an administrative official in the enforcement of the county zoning regulations;

(2) To hear and decide all matters referred to it or which it is required to determine under the zoning regulations adopted by the county commission as herein provided;

(3) Where, by reason of exceptional narrowness, shallowness, shape of topography or other extraordinary or exceptional situation or condition of a specific piece of property, the strict application of any regulation adopted under sections 64.510 to 64.695 would result in peculiar and exceptional difficulties to or exceptional and demonstrable undue hardship upon the owner of the property as an unreasonable deprivation of use as distinguished from the mere grant of a privilege, to authorize, upon an appeal relating to the property, a variance from the strict application so as to relieve the demonstrable difficulties or hardships, provided the relief can be granted without substantial detriment to the public good and without substantially impairing the intent, purpose, and integrity of the zone plan as embodied in the zoning regulations and map.

2. In exercising the above powers, the board may reverse or affirm wholly or partly, or may modify the order, requirement, decision or determination appealed from and may make such order, requirement, decision or determination as ought to be made, and to that end shall have all the powers of the officer from whom the appeal is taken. Any owners, lessees or tenants of buildings, structures or land jointly or severally aggrieved by any decision of the board of adjustment or of the county commission, respectively, under the provisions of sections 64.510 to 64.695, or board, commission or other public official, may present to the circuit court of the county in which the property affected is located, a petition, duly verified, stating that the decision is illegal in whole or in part, specifying the grounds of the illegality and asking for relief therefrom. Upon the presentation of the petition the court shall allow a writ of certiorari directed to the board of adjustment or the county commission, respectively, of the action taken and data and records acted upon, and may appoint a referee to take additional evidence in the case. The court may reverse or affirm or may modify the decision brought up for review. After entry of judgment in the circuit court in the action in review, any party to the cause may prosecute an appeal to the appellate court having jurisdiction in the same manner now or hereafter provided by law for appeals from other judgments of the circuit court in civil cases.

(L. 1951 p. 406 § 13, A.L. 1963 p. 118, A.L. 1990 H.B. 1070)

State statutes are quite clear. Camden county, once reclassified as a first class county, was required to change the makeup of planning and zoning boards. This was not done. Instead, boards made up of politically appointed technocrats have been seated repeatedly in violation of state law.

When questioned about this very basic structure change, county officials have repeatedly claimed that Camden is exempt from the statutes listed above. This false logic and disregard for the rule of law is becoming the norm in Camden County government. The use of multiple agencies to mount a campaign of retribution against a citizen and tax payer who demands these entities follow the rule of law is also becoming a Camden County standard. A recent lawsuit, filed under ‘color of law’, was filed against multiple Camden County government departments and their agents for this very behavior.

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