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OLD KOCH v. NEW KOCH
Part One of a Two Part Series
By The O'Fallon Watchdog
Hyland Green is a development north of Highway 70 off of Highway P in O'Fallon. Koch Road (we will refer to it as "Old
Koch") runs right through the development. Hyland Green was first proposed during Former Mayor Paul Renaud's
administration and despite heavy criticism from residents in the area the city approved the project. McBride & Sons is one of
the main builders of homes in the development and Renaud was employed by a McBride company when Hyland Green was
approved.
As part of the project the developer agreed to build a new road (we will refer to it as "New Koch"), however, the City would
then allow the builder to tear out Old Koch and use that land as part of the project. (In part two of this series we will look into
the City's attempts to pay the developer to build New Koch.) However, there was a problem with this plan because Old Koch
was a County Road and O'Fallon had no control over the road. City staff recognized this problem and made it a condition of
approval of the plat that Old Koch be vacated.
THE LAW
To help understand the legalities it is important to note that a public road is an easement through one's land and this
easement is held for the publics use. Thus, to vacate Old Koch would mean to give up the publics' right to travel this route
and the land where Old Koch once ran would belong to the developer without any restrictions or easements. Of course,
since County Roads are for the use of the public, common sense would dictate we do not want to give a land owner the
ability to vacate the publics' rights for any reason.
For this reason, there are very limited reasons under which a land owner can vacate a public road. Under Missouri law an
owner is allowed to request a road be vacated pursuant to Section 228.160 of the Missouri Revised Statutes. However,
Section 228.160 is limited to situations where an owner wants to "cultivate or enclose land" and then only if the public will not
be injured and a new road is built at the owner's expense. There is no provision under the law which allows a developer to
request a road be vacated so that he may use that land for his project.
Since a County Road is held in trust for the residents (and of course it is the residents who pay to maintain it) the State
Legislature enacted a provision by which twelve residents may petition the County Council to vacate a public road when that
road is "useless, and the repairing of the same an unreasonable burden..." This provision is set out in Section 228.110 and
this same statute allows twelve residents to protest the vacation of a public road. Since a road easement is held for the
benefit and at the cost of the public, Section 228.110 appropriately provides the public, rather than a landowner, the right to
vacate a public road.
Going back to Old Koch, its vacation and reversion to the landowner is simply a matter of the landowner wanting more land
to build houses on to increase profits. As we discussed above the law does not provide a landowner the right to vacate for
these reasons so what did the developer do? On May 27, 2005 twelve residents of the County filed a Petition for Vacation of
Old Koch. Among the twelve residents signing the petition were Steve and Ann Groeper. Mr. Groeper is one of the partners
in the development of Hyland Green and Hyland Green's attorneys filed the petition. The petition alleged Old Koch was
useless and an unreasonable burden to repair because the developer was building a new road. Unfortunately for the
developers, twelve residents who actually used Old Koch protested the vacation.
To decide the issue regarding the vacation of Old Koch a hearing was held before the County Council on January 19, 2006.
Unlike other matters heard before the council this matter proceeded as a trial with the introduction of documents and
testimony. The hearing was recorded so that the record was preserved. Former County Councilmen Bob Schnur presided
over the hearing and after hearing all the evidence the Council was to make a decision of whether Old Koch useless and an
unreasonable burden. So what does "useless" mean as it related to vacating Old Koch? Believe it or not the courts made
this easy. Useless in the statute is defined in the same way as it is defined in the dictionary (Webster, not a legal dictionary);
Useless- having or being of no use, producing no good end, answering no desired purpose. In fact, the very arguments
raised by Hyland Green's attorneys (New Koch provided an alternate route and was safer) have been rejected by the courts.
As an analogy, if I buy a brand new car that is much safer and better than my old car this does not render my old car
useless. Of course, my old car may be of great use to someone else and that is why I can trade it in or sell the old car.
Hyland Green wants us to buy a new car (New Koch) and give them our old car (Old Koch). Fortunately, this isn't the law.
The evidence on January 19, 2006 went as expected and showed that Old Koch was still being used by thousands of
drivers a day and that a new alternate public road (New Koch) may be available some day. After the hearing the County
Council adjourned. The decision on whether Old Koch would be vacated would be made at a later date.
THE DECISION
On March 27, 2006 the County Council held a vote whether to vacate Koch Road. The minutes from the meeting indicate
Council Chair Schnur explained how this was a quasi judicial matter. However, days after the hearing of January 19 Schnur
sent an email to Jeff & Janice (Kolb) letting them know that each side would be filing their findings and conclusions on
February 20, 2006 and that the Council would rule on February 27, 2006. Schnur then told the Kolbs he supported the
vacation and ended by saying "If I can be of further assistance, please let me know." Jeff Kolb was a partner of Steve
Groeper in developing Hyland Green. Schnur left the council to run for County Collector of Revenue. Among the
contributors to his campaign were Keith Hazelwood, Hyland Green's attorney, and Foresight Development, which is a Steve
Groeper company. Mr. Hazelwood also co-hosted a fund raiser for Schnur.
So on March 27, 2006 the County Council voted to accept the findings and conclusions which were submitted by Hyland
Green's attorneys. The council then voted 5-1 to pass an ordinance vacating Old Koch upon certain conditions being met.
County Executive Joe Ortwerth did not sign the bill which became Ordinance No. 06-048. The ordinance contained two
conditions which must be met prior to Old Koch being vacated. The first is that New Koch must be inspected, approved and
accepted by the City of O'Fallon. This has yet to happen and the County has confirmed that Old Koch is not vacated. The
decision of the Council to vacate Koch Road upon certain conditions being met is on appeal to the Circuit Court of
St.Charles County.
WHERE IS OUR ROAD?
In May of 2006 residents who tried to use Old Koch woke up to a surprise on a Saturday morning. Sometime the night
before, Old Koch was torn out by the developer. Residents and officials who contacted the County that Monday were told
that the developer was simply tearing out a portion to run sewer lines but that Old Koch would be restored. Nine months
later Old Koch remains blocked off with portions of the road completely missing. While Old Koch is still not vacated the
builder has been allowed to proceed by St. Charles County and the City of O'Fallon as if the Old Koch does not exist.
The removal of Old Koch left the citizens who live in that area without a replacement public road. New Koch remains a
private road. Thus, when it snows or a citizen has a complaint about New Koch there is nothing the County or City can do.
Under Missouri law it is a crime to obstruct a public road yet, despite protests by residents, the County has refused to
enforce the law.
O'FALLON AND OLD KOCH
While Old Koch is a County road the development is controlled by the City. The City, however, does not have the right to
obstruct or vacate this easement. While the County thumbs its nose at its residents the City has changed direction under
City Administrator Bob Lowery and is a willing accomplice to the unlawful destruction of Old Koch. As we noted above the
City made it a condition on the original PUD plan that Old Koch be vacated. This was only logical because, if the law was to
be followed, the builder could not do anything to interfere with the publics' right to travel Old Koch. Therefore, there could
not be any approval of plats or building permits issued until the vacation was completed. Of course, a reading of the
applicable law made it highly unlikely Old Koch could be vacated. But this is St. Charles County where we are truly the wild
wild west when it comes to enforcing laws to against the builders and developers.
The City of O'Fallon has a long history of ignoring various laws as they relate to the building industry. It should also be
remembered that the primary builder in the development is McBride & Sons whose employee, Paul Renaud, was the Mayor
of O'Fallon. It would come as no surprise that the vacation of Old Koch was not a concern when this development was first
approved. However, in April of 2005 Mr. Renaud was replaced by Donna Morrow who came into office with several new
Council members who campaigned against the free ride given to builders. Under the new leadership, the City notified Mr.
Groeper and McBride that building permits would not be issued for any lots which may be affected by Old Koch unless it is
finally vacated.
The letter was unnecessary because the law already precluded anyone from interfering with a public road but because of
the City's history it was important to inform the builders that the City would not be a willing partner in unlawfully obstructing
Old Koch. Therefore, since Old Koch was not vacated, portions of Hyland Green were put on hold. However, just as fast as
the builders lost control of the City Council they made a new friend in Bob Lowery. After several council members resigned
and Lowery brought in a new attorney he quickly moved to help get Hyland Green moving forward. On the day after the
County Council passed an ordinance vacating Old Koch (March 28, 2006) Mr. Lowery reminded Todd Criswell, head of
Community Development, that the developer of Hyland Green was calling the City about approval of plats. Lowery then
asked Criswell to tell him how the developer could get to work on this project without any "further delays on our part." While
compliance with the law was merely a "delay on our part" to Mr. Lowery, Criswell attempted to inform him of the legal
reasons why the project was delayed. Mr. Criswell was fired by Lowery in May of 2006.
After Mr. Criswell was fired the City moved ahead without "further delays" in plat approval for the area where Old Koch runs
and in issuing building permits for construction in these areas. Mr. Criswell has filed a suit against the City alleging, among
other things, that he was fired for following the law.
On February 8, 2007 Keith Hazelwood appeared before the City Council on behalf of Hyland Green to request approval of
the Record Plat of the Road Dedication and Easement of Koch Road and Tower Place. The ordinance states that the
streets "will not be accepted by the City until they are in full compliance with O'Fallon Ordinances and rules..." Although the
County ordinance does not go into effect until New Koch is accepted (which the O'Fallon ordinance did not do) Mr.
Hazelwood requested the City suspend its rules and read this ordinance through to passage because this was the last
condition to vacate Old Koch . Mr. Hazelwood explained there is a closing on a house February 23, 2007 which would
require Old Koch to be vacated.
The staff recommended approval of the ordinance and the Council performed there usual rubber stamp. Of course,no
mention was made that Old Koch was still not vacated. Or that the City had placed a condition on the original plan that Old
Koch be vacated. Or that Old Koch was torn up and barricaded in violation of the law. Or that the ordinance that vacated
Old Koch (upon certain conditions not yet met) was being appealed. Or that a house built on Old Koch was in violation of
the law. Or that these issues were raised by the former head of Community Development prior to his termination.
A request was made to the City for any records regarding the acceptance of New Koch and none have been produced. Mr.
Lowery was asked if the City had accepted Koch Road and, if not, how the project was allowed to proceed. Mr. Lowery has
declined to respond to the question. At first, Mr. Lowery indicated he would defer to the City's legal counsel if the question
asked for a legal conclusion or, in the alternative, he indicated he would refer the matter to staff if the question was
rhetorical. Mr. Lowery later indicated he had no "direct knowledge" of the information requested.
In Part Two of the series we will look into the developer's attempts to have the City pay for New Koch during Renaud's
administration, lobbying efforts on behalf of the developer for payment by the City by a current City employee, how the
developer's request for the City to pay ended once Renaud left office and if the City is once again considering paying the
developer for the New Koch.
Part One of a Two Part Series
By The O'Fallon Watchdog
Hyland Green is a development north of Highway 70 off of Highway P in O'Fallon. Koch Road (we will refer to it as "Old
Koch") runs right through the development. Hyland Green was first proposed during Former Mayor Paul Renaud's
administration and despite heavy criticism from residents in the area the city approved the project. McBride & Sons is one of
the main builders of homes in the development and Renaud was employed by a McBride company when Hyland Green was
approved.
As part of the project the developer agreed to build a new road (we will refer to it as "New Koch"), however, the City would
then allow the builder to tear out Old Koch and use that land as part of the project. (In part two of this series we will look into
the City's attempts to pay the developer to build New Koch.) However, there was a problem with this plan because Old Koch
was a County Road and O'Fallon had no control over the road. City staff recognized this problem and made it a condition of
approval of the plat that Old Koch be vacated.
THE LAW
To help understand the legalities it is important to note that a public road is an easement through one's land and this
easement is held for the publics use. Thus, to vacate Old Koch would mean to give up the publics' right to travel this route
and the land where Old Koch once ran would belong to the developer without any restrictions or easements. Of course,
since County Roads are for the use of the public, common sense would dictate we do not want to give a land owner the
ability to vacate the publics' rights for any reason.
For this reason, there are very limited reasons under which a land owner can vacate a public road. Under Missouri law an
owner is allowed to request a road be vacated pursuant to Section 228.160 of the Missouri Revised Statutes. However,
Section 228.160 is limited to situations where an owner wants to "cultivate or enclose land" and then only if the public will not
be injured and a new road is built at the owner's expense. There is no provision under the law which allows a developer to
request a road be vacated so that he may use that land for his project.
Since a County Road is held in trust for the residents (and of course it is the residents who pay to maintain it) the State
Legislature enacted a provision by which twelve residents may petition the County Council to vacate a public road when that
road is "useless, and the repairing of the same an unreasonable burden..." This provision is set out in Section 228.110 and
this same statute allows twelve residents to protest the vacation of a public road. Since a road easement is held for the
benefit and at the cost of the public, Section 228.110 appropriately provides the public, rather than a landowner, the right to
vacate a public road.
Going back to Old Koch, its vacation and reversion to the landowner is simply a matter of the landowner wanting more land
to build houses on to increase profits. As we discussed above the law does not provide a landowner the right to vacate for
these reasons so what did the developer do? On May 27, 2005 twelve residents of the County filed a Petition for Vacation of
Old Koch. Among the twelve residents signing the petition were Steve and Ann Groeper. Mr. Groeper is one of the partners
in the development of Hyland Green and Hyland Green's attorneys filed the petition. The petition alleged Old Koch was
useless and an unreasonable burden to repair because the developer was building a new road. Unfortunately for the
developers, twelve residents who actually used Old Koch protested the vacation.
To decide the issue regarding the vacation of Old Koch a hearing was held before the County Council on January 19, 2006.
Unlike other matters heard before the council this matter proceeded as a trial with the introduction of documents and
testimony. The hearing was recorded so that the record was preserved. Former County Councilmen Bob Schnur presided
over the hearing and after hearing all the evidence the Council was to make a decision of whether Old Koch useless and an
unreasonable burden. So what does "useless" mean as it related to vacating Old Koch? Believe it or not the courts made
this easy. Useless in the statute is defined in the same way as it is defined in the dictionary (Webster, not a legal dictionary);
Useless- having or being of no use, producing no good end, answering no desired purpose. In fact, the very arguments
raised by Hyland Green's attorneys (New Koch provided an alternate route and was safer) have been rejected by the courts.
As an analogy, if I buy a brand new car that is much safer and better than my old car this does not render my old car
useless. Of course, my old car may be of great use to someone else and that is why I can trade it in or sell the old car.
Hyland Green wants us to buy a new car (New Koch) and give them our old car (Old Koch). Fortunately, this isn't the law.
The evidence on January 19, 2006 went as expected and showed that Old Koch was still being used by thousands of
drivers a day and that a new alternate public road (New Koch) may be available some day. After the hearing the County
Council adjourned. The decision on whether Old Koch would be vacated would be made at a later date.
THE DECISION
On March 27, 2006 the County Council held a vote whether to vacate Koch Road. The minutes from the meeting indicate
Council Chair Schnur explained how this was a quasi judicial matter. However, days after the hearing of January 19 Schnur
sent an email to Jeff & Janice (Kolb) letting them know that each side would be filing their findings and conclusions on
February 20, 2006 and that the Council would rule on February 27, 2006. Schnur then told the Kolbs he supported the
vacation and ended by saying "If I can be of further assistance, please let me know." Jeff Kolb was a partner of Steve
Groeper in developing Hyland Green. Schnur left the council to run for County Collector of Revenue. Among the
contributors to his campaign were Keith Hazelwood, Hyland Green's attorney, and Foresight Development, which is a Steve
Groeper company. Mr. Hazelwood also co-hosted a fund raiser for Schnur.
So on March 27, 2006 the County Council voted to accept the findings and conclusions which were submitted by Hyland
Green's attorneys. The council then voted 5-1 to pass an ordinance vacating Old Koch upon certain conditions being met.
County Executive Joe Ortwerth did not sign the bill which became Ordinance No. 06-048. The ordinance contained two
conditions which must be met prior to Old Koch being vacated. The first is that New Koch must be inspected, approved and
accepted by the City of O'Fallon. This has yet to happen and the County has confirmed that Old Koch is not vacated. The
decision of the Council to vacate Koch Road upon certain conditions being met is on appeal to the Circuit Court of
St.Charles County.
WHERE IS OUR ROAD?
In May of 2006 residents who tried to use Old Koch woke up to a surprise on a Saturday morning. Sometime the night
before, Old Koch was torn out by the developer. Residents and officials who contacted the County that Monday were told
that the developer was simply tearing out a portion to run sewer lines but that Old Koch would be restored. Nine months
later Old Koch remains blocked off with portions of the road completely missing. While Old Koch is still not vacated the
builder has been allowed to proceed by St. Charles County and the City of O'Fallon as if the Old Koch does not exist.
The removal of Old Koch left the citizens who live in that area without a replacement public road. New Koch remains a
private road. Thus, when it snows or a citizen has a complaint about New Koch there is nothing the County or City can do.
Under Missouri law it is a crime to obstruct a public road yet, despite protests by residents, the County has refused to
enforce the law.
O'FALLON AND OLD KOCH
While Old Koch is a County road the development is controlled by the City. The City, however, does not have the right to
obstruct or vacate this easement. While the County thumbs its nose at its residents the City has changed direction under
City Administrator Bob Lowery and is a willing accomplice to the unlawful destruction of Old Koch. As we noted above the
City made it a condition on the original PUD plan that Old Koch be vacated. This was only logical because, if the law was to
be followed, the builder could not do anything to interfere with the publics' right to travel Old Koch. Therefore, there could
not be any approval of plats or building permits issued until the vacation was completed. Of course, a reading of the
applicable law made it highly unlikely Old Koch could be vacated. But this is St. Charles County where we are truly the wild
wild west when it comes to enforcing laws to against the builders and developers.
The City of O'Fallon has a long history of ignoring various laws as they relate to the building industry. It should also be
remembered that the primary builder in the development is McBride & Sons whose employee, Paul Renaud, was the Mayor
of O'Fallon. It would come as no surprise that the vacation of Old Koch was not a concern when this development was first
approved. However, in April of 2005 Mr. Renaud was replaced by Donna Morrow who came into office with several new
Council members who campaigned against the free ride given to builders. Under the new leadership, the City notified Mr.
Groeper and McBride that building permits would not be issued for any lots which may be affected by Old Koch unless it is
finally vacated.
The letter was unnecessary because the law already precluded anyone from interfering with a public road but because of
the City's history it was important to inform the builders that the City would not be a willing partner in unlawfully obstructing
Old Koch. Therefore, since Old Koch was not vacated, portions of Hyland Green were put on hold. However, just as fast as
the builders lost control of the City Council they made a new friend in Bob Lowery. After several council members resigned
and Lowery brought in a new attorney he quickly moved to help get Hyland Green moving forward. On the day after the
County Council passed an ordinance vacating Old Koch (March 28, 2006) Mr. Lowery reminded Todd Criswell, head of
Community Development, that the developer of Hyland Green was calling the City about approval of plats. Lowery then
asked Criswell to tell him how the developer could get to work on this project without any "further delays on our part." While
compliance with the law was merely a "delay on our part" to Mr. Lowery, Criswell attempted to inform him of the legal
reasons why the project was delayed. Mr. Criswell was fired by Lowery in May of 2006.
After Mr. Criswell was fired the City moved ahead without "further delays" in plat approval for the area where Old Koch runs
and in issuing building permits for construction in these areas. Mr. Criswell has filed a suit against the City alleging, among
other things, that he was fired for following the law.
On February 8, 2007 Keith Hazelwood appeared before the City Council on behalf of Hyland Green to request approval of
the Record Plat of the Road Dedication and Easement of Koch Road and Tower Place. The ordinance states that the
streets "will not be accepted by the City until they are in full compliance with O'Fallon Ordinances and rules..." Although the
County ordinance does not go into effect until New Koch is accepted (which the O'Fallon ordinance did not do) Mr.
Hazelwood requested the City suspend its rules and read this ordinance through to passage because this was the last
condition to vacate Old Koch . Mr. Hazelwood explained there is a closing on a house February 23, 2007 which would
require Old Koch to be vacated.
The staff recommended approval of the ordinance and the Council performed there usual rubber stamp. Of course,no
mention was made that Old Koch was still not vacated. Or that the City had placed a condition on the original plan that Old
Koch be vacated. Or that Old Koch was torn up and barricaded in violation of the law. Or that the ordinance that vacated
Old Koch (upon certain conditions not yet met) was being appealed. Or that a house built on Old Koch was in violation of
the law. Or that these issues were raised by the former head of Community Development prior to his termination.
A request was made to the City for any records regarding the acceptance of New Koch and none have been produced. Mr.
Lowery was asked if the City had accepted Koch Road and, if not, how the project was allowed to proceed. Mr. Lowery has
declined to respond to the question. At first, Mr. Lowery indicated he would defer to the City's legal counsel if the question
asked for a legal conclusion or, in the alternative, he indicated he would refer the matter to staff if the question was
rhetorical. Mr. Lowery later indicated he had no "direct knowledge" of the information requested.
In Part Two of the series we will look into the developer's attempts to have the City pay for New Koch during Renaud's
administration, lobbying efforts on behalf of the developer for payment by the City by a current City employee, how the
developer's request for the City to pay ended once Renaud left office and if the City is once again considering paying the
developer for the New Koch.