Gershman Realty & Tom Stern for QuikTrip vs. Creve Coeur

The Missouri Supreme Court heard our case on October 26, 2022

Residents of Creve Coeur eagerly await a decision.

An interesting article providing some opinion and summary of our case was posted yesterday, November 10, 2022, by Scott Lauck, on the Missouri Lawyers Media website. This is a subscription based article so here’s our synopsis…

In the opening of the article, author Scott Lauck notes that, “Several members of the Missouri Supreme Court were openly skeptical on Oct. 26 that state law allows a judge to decide whether a gas station is to be built at a particular intersection in Creve Coeur.”

Jerry Carmody, attorney for the property owners (Gershman/Tom Stern) in favor of QuikTrip, argued that the city had a ministerial duty to issue the permit once the ordinance’s standards had been met. Carmody argued that our Council didn’t fairly demonstrate why they’d chosen to deny the CUP and therefore “there’s no due process, there’s no fairness, there’s no right to review.”

However, Chief Justice Paul C. Wilson reminded Carmody that the ordinance explicitly gives the council the final say, and that the de novo review by the circuit court’s duty is to determine whether the City Council’s decision was arbitrary and capricious. Chief Justice Wilson said, “That’s not the same as a de novo review of the application, which seems to be what the trial court here did, which was to say, ‘I will determine in the first instance whether the facts support, in my discretion, the issuance of the permit.'” Wilson additionally noted that, “At no point did the trial court concern itself with whether the facts supported the decision that had already been made.”

Judge W. Brent Powell piggy-backed off of that thought to say that, “The trial court needs to be focused on the decision and the decision-making of the city council, not on whether or not the application should have been granted.”

Judge Zel M. Fischer seemed to take issue with the spirit of Carmody’s argument, summarizing his point by saying, “It doesn’t matter who you vote for or whether they view compliance with the comprehensive plan the way you do, because a judge is going to decide whether we issue one of these permits.”

Carmody defensively reiterated his arguments and added that “the facts are the facts regardless of the constitution of the city council.”

Also worth highlighting is the fact that our hearing drew the attention of the Missouri Municipal League. In an amicus brief presented to the Missouri Supreme Court, attorney B. Allen Garner noted that allowing “a single member of the judiciary” to make such decisions would encourage all permit approvals to be turned into contested cases. In the amicus brief Garner notes that, “This prospect would create delays, increase the costs, and make hearings more formal and confrontational when the purpose of the hearing is to provide a forum for the members of the public to address their local officials holding the hearing.”



Jerry Carmody of Carmody MacDonald motions toward opposing counsel, Jim Layton of Tueth Keeney Cooper Mohan & Jackstadt, during arguments in the Missouri Supreme Court on Oct. 26, 2022 over a permit for a QuikTrip ultra-high volume gas station in Creve Coeur at Graeser and Olive.
Photo by Scott Lauck

Missouri Supreme Court website’s Case Summary (below was copy/pasted from the courts docket page)

SC99619 – BG Olive & Graeser LLC and Forsyth Investments LLC v. City of Creve Coeur, Missouri

St. Louis County

Challenge to order requiring city to approve conditional use permit

Creve Coeur was represented during arguments by James Layton of Tueth Keeney Cooper Mohan & Jackstadt PC in St. Louis; the property owners were represented by Gerard Carmody of Carmody MacDonald PC in St. Louis.

Listen to the oral argument: SC99619 MP3 file

BG Olive & Graeser LLC and Forsyth Investments LLC own adjacent properties at the intersection of Olive Boulevard and Graeser Road in Creve Coeur. The properties now include mostly vacant strip shopping centers. The property owners entered into an agreement to sell the properties to QuikTrip, contingent on QuikTrip obtaining from the city approval to develop a new gas station and convenience store on part of the properties. Accordingly, in January 2020, QuikTrip and BG Olive applied for a conditional use permit under section 405.170 of the Creve Coeur ordinances for a new gas station and convenience store on the eastern portion of the properties, and Forsyth Investments filed a site development plan to renovate the shopping center on the western portion of the properties. QuikTrip and city staff then spent months fine-tuning the proposed plan, and QuikTrip made certain concessions as a result. Ultimately, staff found the proposal complied with the city’s comprehensive plan and three of the standards in the ordinance. Ultimately, however, the city’s planning and zoning commission defeated a motion to recommend approval of the conditional use permit application. The next month, the city council voted down a bill to approve QuikTrip’s conditional use permit application. In September 2020, BG Olive and Forsyth Investments (collectively, the property owners) filed a petition for judicial review in the St. Louis County circuit court. Before trial, the parties filed a joint stipulation agreeing the QuikTrip proposal satisfied two of the zoning code’s six standards. During the bench trial (before a judge rather than a jury), QuikTrip admitted some evidence – including exhibits and witness testimony – that also had been presented to the planning and zoning commission and the city council. In its judgment, the circuit court cited one subsection of the ordinance, made factual findings relating to the standards listed in the ordinance, and entered its order in mandamus requiring the city council to enact a bill approving the QuikTrip conditional use permit. The city appeals.

This appeal presents several questions for this Court. One involves whether the circuit court instead should have reviewed the city council’s decision for error rather than making its own, independent decision whether the conditional use permit application should be granted. Another involves whether the circuit court’s order exceeded the scope of permissible mandamus relief. A related issue includes whether the city’s ordinances create and preserve discretionary authority to the city council. The third question is whether the circuit court’s decision was against the weight of the evidence. Related issues include whether the evidence showed QuikTrip’s business was not a “neighborhood service business” and, therefore, did not meet the applicable provisions of the city’s comprehensive plan.

The Missouri Municipal League, which filed a brief as a friend of the Court, argued the circuit court should have reviewed the case as a noncontested case under section 536.150, RSMo, which limits the remedies available to the court. The league argues discretionary determinations are the purview of the city officials, not the circuit court, and, as such, the court should not have substituted its judgment for that of the city.

(end of court summary)

Recap of events thus far

regarding QuikTrip attempting to obtain a Conditional Use Permit to build an ultra-high density convenience store/restaurant/gas station at the southwest corner of Graeser and Olive

You can find more details about the case and links to all available assets on our documents page: http://graeserneighbors.org/documents/