Engineering and limited site work enough for “construction”

In Harmony Pointe, LLC v. City of Cottleville, ED 112620, 2025 WL 757938 (Mo.App. E.D. Mar. 11, 2025), the Missouri Court of Appeals rejected a city’s issuance of a stop work order to a developer. The city claimed that a developer under an approved planned unit development (“PUD”) had not begun construction on its project per the zoning code requirement that construction begin within one year of approval or the PUD would expire. The Court found that because the city's zoning code contained no explicit definition of the term “construction” that was directly applicable to PUD section, the Court would need to view the term “construction” in the context of the entire section of the municipal code at issue and harmonize all provisions. The Court rejected the city Board of Adjustment’s application of a strict dictionary definition of “construction” that must include development work that “combined or arranged parts[ ] or elements[ ] into a structure or composite whole,” and that the tasks completed on the project “do not qualify as ‘construction.’” The “tasks” developer had completed were: borings by geotechnical engineers, staking the project site for tree clearing by an engineering company; clearing trees from the project site; surveying and staking corners of a building; erecting a job board; reviewing overhead lines with utility company; “hydroexcavation” activities; and offsite fabrication of steel settlement plates for use on the project site, all at a total cost of more than $60,000. The Court “decline[d] to apply a hyper-technical definition of the term ‘construction’ to categorize the work done by [developer] on the project. … Rather, the plain language of [the zoning code] combined with the project's construction plan leads to the logical and reasonable conclusion that the significant amount of work done by” developer prior to the one year date “qualifie[d] as ‘construction’ in accordance with the City's approved plan.”

This case demonstrates a couple of things. One, although not referenced as such by the Court, the doctrine of vested rights is alive and well in Missouri. That doctrine says that the actual commencement of a use establishes a vested right to continue the use if it is commenced in accordance with the zoning ordinance or on the authority of an lawfully issued permit. Second, a local government should be clear in their code as to what is expected from the developer as far as “construction” before an approved plan expires and not leave it to the courts to decide.

That said, a local government should be aware that regardless of what their zoning code says, once a developer has expended funds in furtherance of their development, they may be found to have vested rights in the development. For example, in May Department Stores v. St. Louis County, 607 S.W.2d 857, 861-62 (Mo.Ct.App. 1980), the developer had obtained rezoning to C-8 Planned Commercial District to allow the development of a proposed retail/office space. Between the date of purchase and the issuance of the building permit, May incurred expenditures for engineering and architectural drawings, grading and demolition, and road and sewer construction, obtained an approved subdivision plat, constructed a "good part" of the building, and had incurred over $5.8 million in costs, before the County repealed the C-8 ordinance. The court held May had a right to rely on the zoning not being arbitrarily changed, and the rezoning was enacted "solely to prevent the operation of a Venture store on the property and not because the Council made a determination that the public good required rezoning of the property...."  Accordingly, the "retroactive application of a rezoning amendment aimed solely at an individual site already in the process of being developed has been consistently denounced as discriminatory, arbitrary, unreasonable and confiscatory."

It appears that the Court in the Harmony Pointe case believed that the expenditure of $60,000 by the developer was enough “construction” to establish sufficient vested rights in the PUD approval to allow the development to continue unabated.

Note that the Harmony Pointe decision has not become final yet and may be subject to a motion for rehearing or transfer; or may be modified, superseded or withdrawn.