Developing property is no easy task, but a recent Missouri Court of Appeals decision clarifies that “a preliminary plat is just that — preliminary.”

In subdividing undeveloped property, developers typically have to obtain approval of both a preliminary plat and a final plat, often with further conditions attached to approval of each. Each step in the process takes time which can create issues with both lenders and prospective tenants. But, approving a preliminary plat only allows a developer to proceed with the planning and development phase of a project. Therefore, where a preliminary plat adheres to and addresses all of the requirements of a jurisdiction’s subdivision regulations, an appellate body, such as a county commission, acts only in an administrative capacity (as opposed to acting in its legislative capacity) in reviewing the preliminary plat for compliance with the subdivision regulations. The Missouri Court of Appeals for the Western District (the “Court”), in State ex rel. Alexander & Lindsey, LLC v. The Planning and Zoning Commission of Platte County, agreed with this principle and remanded the case to the circuit court for it to enter an order requiring that the developer’s preliminary plat be approved.

In July 2007, a developer filed an application with Platte County, Missouri to develop and subdivide approximately 16.5 acres of property into five lots for development as a commercial subdivision known as Beverly Plaza. For approval of such a subdivision in Platte County, a developer must comply with the Platte County Subdivision Regulations, which set forth detailed requirements for a preliminary plat submission and outline the procedure for approval of a major subdivision, which includes obtaining approval of the plat from the Platte County Planning and Zoning Commission at both the preliminary and final plat stages.

At the public hearing for review of the preliminary plat, after hearing objections from the city of Weston, Missouri, the Planning and Zoning Commission voted 7-1 to deny the developer’s preliminary plat, despite County staff recommending approval and indicating that all requirements for a preliminary plat were met. The Planning and Zoning Commission found that its approval of the preliminary subdivision plat “would result in substantial detriment to the public good” because the plat did not specify proposed uses (beyond stating that all lots will be used for commercial business as was already permitted under the land’s zoning classification); testimony indicated that infrastructure limitations existed (despite submission of a drainage study indicating that the proposed development complied with American Public Works Standard 5600); and due to potential traffic hazards created by the proposed subdivision (despite submission of a traffic study approved by both the County Engineer and MoDOT). The developer then appealed the denial to the Platte County Commission, the County’s governing body, but the County Commission upheld the denial and adopted identical findings to those made by the Planning and Zoning Commission.

The Court, however, held that the County Commission lacked the power to exercise such arbitrary and subjective authority over approving or denying preliminary subdivision plats. Its sole purpose, the Court found, is to determine whether the preliminary plat complies with the County’s subdivision regulations, in which case, the Commission must approve it. The Court found that many of the Commission’s stated reasons for denying its approval of the preliminary plat would be addressed as the developer proceeded with its planning and development plans and worked towards submitting a final plat, which would again require approval. However, the Court’s decision came more than three years after the County Commission’s hearing and denial of the preliminary plat. There is no indication whether the developer intends to proceed after such unnecessary delay.

Our experience has been that while many delays inherent to the subdivision process are unavoidable, valuable time can be saved by quelling opposition through neighborhood and community meetings at the outset, prior to submission of even the preliminary plat. By taking the time to explain the entire development process to those who are most likely to oppose it, developers can endear themselves to County Planning Commissions who strongly value community participation and feedback.