Prewitt Back In Court With Bittersweet Development

CAMDEN COUNTY, Mo. — Attorneys for developer Gary Prewitt and Camden County’s Planning and Zoning attorney Ryan Harding once again found themselves in court.

However, this time they were defending the same position against a group of Horseshoe Bend residents. Those residents, who are represented by attorney Michael Berry, are trying to stop development of 44 nightly rental units on a 22-acre piece of ground located on the north side of Bittersweet Road between Anemone and Primrose roads. The case went to court towards the end of 2015.

Camden P&Z puts Prewitt case on hold, indefinitely

CAMDEN COUNTY, Mo. — In accordance with a circuit court judge’s order, the Camden County Pla…

After hearing their arguments, a Cole County Circuit Court Judge ordered that Prewitt “individually and in any capacity he has with defendants Yellowstone Lot, LLC and/or Enowski Farms, Inc. and all members, agents, employees and contractors working under any agreement of Prewitt or Yellowstone” were prohibited from conducting any further land clearing, grubbing, removing trees and/or excavating and grading for paths, detention basins, pads, parking areas and/or cabins and any other related activities on the Bittersweet property until a trial could be held to determine if a permanent injunction will be issued.

According to the preliminary injunction, the court found that the planning administrator for Camden County issued a land disturbance permit for a project clearly not authorized by the current zoning of the property and that the goal of the project of day rentals was acknowledged in the application for a land disturbance permit submitted to the Missouri Department of Natural Resources (MoDNR) by a representative of the developer. The injunction also states that land disturbance activities constitute improvements, a term not defined in the Camden County Unified Land-Use Code, and that Section 104 of the code provides that no land shall be used and no improvement shall be made which is designed, arranged or intended to be used or maintained for any purpose or in any manner except in accordance with the requirements established in the zoning district in which such land or improvement is located.

Ryan Harding, attorney for the Camden County’s Planning and Zoning Commission, said it is the county’s position that the current R-1 zoning with an underlying Planned Unit Development (PUD) would allow the cabins - just not the convenience store. He also said that the order found that although the permit was dually authorized, the work that was being done exceeded the scope of the permit.

Harding also explained that developers often clear land without a final sense of what they’re going to do with the property and that once brush is removed, developers find that their original plans aren’t suitable to the topography.

“The county doesn’t have different land disturbance permits for different projects. There’s one land disturbance permit that gets issued, whether it’s for a single family dwelling or for a strip mall,” he said. “The permit for this project specifically states that the land is zoned R-1 and not B-1 so the county’s view is clearing, grubbing, grading can all be performed regardless of what the ultimate goal of the project is. The county isn’t endorsing a project when it issues a land disturbance permit. We’re simply saying that as long as the property owner meets the requirements of the DNR for handling storm water, they can clear their land.”

Michael Berry, the attorney representing the plaintiffs, has a different take. He said because the land is zoned R-1 residential, even the rental cabins are prohibited.

“Because of that, the land disturbance permit should never have been issued in the first place. In an R-1 zoned parcel of property, you can have one residential structure. Period. Camden County’s codes aren’t clear about whether daily rentals are allowed in a single structure, but they certainly aren’t allowed in 44 structures on one lot located in R-1. That’s something called ‘lodging,’” he said.

Harding said he believes that if a final injunction blocks any further progress, the development company could reapply for a land disturbance permit for the cabins only or they could file an application to change the zoning and if it was granted, ask for a land disturbance permit for a plan permitted under the new zoning.

However, Berry said he believes a final injunction will stop the plan altogether. He also said he doesn’t understand why the county sent two attorneys to evidentiary hearings to fight a battle against its own homeowners.

“It puzzles me. We’re not asking the county zoning ordinances to be stricken. I’d think the county would be interested in protecting its property owners and their rights and the investments they’ve made in good homes and good quality neighbors. But that doesn’t seem to interest the Camden County Commission,” he said.

Although the judge stated in the injunction that the court was not persuaded Prewitt would incur all of the damages he alleged when construction was stopped, and that the damages alleged by Prewitt were created by Prewitt and incurred at the risk of Prewitt, the judge still required the plaintiffs to post a $10,000 bond, which was done November 20.

According to Harding, if the court finds the plaintiffs are wrong about the merits of their lawsuit and Yellowstone is right, Yellowstone can recoup that $10,000.

This is not the first time the property has been the source of legal action. In 2014, after the county commission approved zoning that allowed construction of a parking lot to serve the Shady and Lazy Gators complex, but sent a zoning request for the rest of the tract back to P&Z when residents complained, Prewitt filed a lawsuit against the county. Due to a mapping error, the land was mistakenly overlooked during the original zoning process.