Opening of public hearing to postpone matter to date certain held to violate notice requirements of Chapter 89 RSMo.

In Arch Energy, L.C. v. City of Brentwood, No. ED112714 (March 18, 2025) a zoning amendment removing certain uses from the list of conditional uses for an overlay district was recently invalidated by the Eastern District due to notice not complying with Sections 89.050 RSMo. In this instance, the City provided the appropriate fifteen-days’ newspaper notice of a public hearing for February 7, 2022, but did not have a public hearing at which the interested parties and citizens had an opportunity to be heard. Instead, at the February 7, 2022 meeting the hearing was opened and then postponed to a date certain—February 22, 2022. The City sent mailers to the nearby citizens that would be affected of the February 22, 2022 hearing, but newspaper notice was not published for a public hearing to occur on February 22, 2022. A hearing occurred on February 22, 2022 and the ordinance was subsequently passed.

Arch Energy, affected by the change in conditional uses, sued to invalidate the ordinance arguing that the appropriate notice was not published for the February 22, 2022 meeting. Without proper newspaper notice, Arch Energy argued the ordinance did not comply with Chapter 89 RSMo. The Eastern District agreed with Arch Energy, holding that the City could not open the hearing and not allow public comment, and continue that public hearing to a date certain without a fresh fifteen-days’ newspaper notice.

While this case is not final, we recommend any time a hearing is continued without allowing interested parties and citizens to be heard, a new fifteen-days’ newspaper notice is provided. We also recommend any city review its fees to ensure that the applicant is responsible for any necessary re-advertising fees. Further, even if a city opens the hearing and has a full hearing and needs to continue it for some reason, it may be worth discussing with your City Attorney for items that are important to the city whether the city should incur re-advertising costs for a continued hearing to limit any notice arguments under Chapter 89 RSMo. Readvertising may also be in the best interest of applicants to protect their interests in the zoning process, so discussion with applicants on these matters may also be prudent.