November 13, 2007

Corruption lesson 1: How to steal a public road.

On May 13, 2006 residents who used (old) Koch Road, a county road in O'Fallon, woke up to find the road destroyed. Without warning and without any legal authority a builder and developer began tearing out the road beginning on a Friday evening. Those responsible for protecting the residents, St. Charles County and O'Fallon, were willing co-conspirators. Here is how it happened:

  • June of 2003-OFallon approves an area plan for a new subdivision called Hyland Green. The subdivision includes (old) Koch Road and the area plan shows (old) Koch as being vacated with houses where the road once ran. The plan required that (old) Koch be vacated before work began but since (old) Koch was a county road O'Fallon had no authority to vacate the road.
  • May 27, 2005-A group of 12 residents filed a petition in St. Charles County asking that (old) Koch Road be vacated.
  • May of 2005-A letter was issued by O'Fallon informing the builder that building permits would not be issued until (old) Koch was vacated.
  • June 13 ,2005-38 residents filed a protest against the vacation of (old) Koch Road. This is known as a remonstrance and required a hearing before the County Council.
  • June 20, 2005-Under the direction of O'Fallon Mayor Donna Morrow, Todd Criswell, the head of Community Development, sent a letter to Steve Groeper (Hyland Green/Foresight Development, the developer) and David Jones of McBride & Sons (the builder) informing them that the city would not issue building permits on 21 lots until (old) Koch Road was officially vacated by the County. This letter was consistent with the requirements of the area plan as well common sense. The mayor and board (which included Bill Hennessy) were copied in on the letter.
  • September 20, 2005-St. Charles County sent a letter to Foresight Development informing Foresight that it could not disturb (old) Koch Road because the vacation was still pending. It should also be noted any work on (old) Koch would be a violation of the area plan and a criminal act under Missouri law which makes it a crime to obstruct a public road.
  • November 21, 2005-Mayor Morrow received a fax of the proposed ordinance of St. Charles County which would vacate (old) Koch Road once two conditions were met. The most important of these was that New Koch Road be completed, inspected, approved and accepted by O'Fallon. Once this was done the County would then file a certified copy of the ordinance with the Recorder of Deeds, officially vacating Koch Road. The acceptance of New Koch was for maintenance in that the county did not want to tear up an existing road without a publicly maintained road to replace it. Remember though that this was still only a proposed ordinance.
  • January 19, 2006-The hearing is held before the St. Charles Council on the request to vacate (old) Koch. The law requires that the road cannot be vacated unless it is "useless" (Section 228.110 RSMo). (At least that's what the law had been for years until some of our State Representatives decided to try and help the guilty parties get out of this jam.) The evidence submitted by the developer proves conclusively that (old) Koch is not useless. Prior to New Koch being built 1100 vehicles a day used (old) Koch and after New Koch was opened 850 vehicles a day used (old) Koch. These traffic counts were from the developer's own expert.
  • March 27, 2006-The County Council votes to pass bill # 2715 which provides that (old) Koch Road will be vacated once certain conditions are met (again, that New Koch Road be completed, inspected, approved and accepted by O'Fallon was one of the conditions) at which time a certified copy of the ordinance was to be filed with the Recorder of Deeds.
  • March 28, 2006-O'Fallon City Administrator Bob Lowery sends an email (copying in only 2 elected officials, Bob Patek and Mayor Morrow) stating that Lowery understood the County had voted to vacate (old) Koch Road the night before. The email was sent to Todd Criswell, O'Fallon's director of Community Development, and stated that the developer had "been calling us" about the pending approval of the plats. Lowery asked how soon the road vacation would take place and how the developer could "get back to work without any further delays on our part."
  • March 29, 2006-Criswell responded to Lowery's email and asked if there was an appeal process and if so how long did anyone have to file an appeal? Criswell then pointed out to Lowery the following issues:

    a) O'Fallon needed the formal documents from St. Charles vacating the roadway.
    b) O'Fallon needed letters or documents from all utilities vacating the existing easements.
    c) O'Fallon needed a record plat showing the vacation of the old road and showing the new residential lots over the old roadway.
    d) O'Fallon needed New Koch Road to be platted and recorded before the removal of the old road.
    e) O'Fallon needed CC&R's and escrows established for both plats.
  • April 11, 2007-Bill # 2715, which would vacate (old) Koch Road if certain conditions were met, became Ordinance 06-048 since 10 days had passed without County Executive Joe Ortwerth signing or vetoing the bill.
  • April 17, 2006-The parties opposed to the potential vacation of (old) Koch Road filed an appeal to the Circuit Court of St. Charles County challenging the County's decision.
  • May 10, 2006-Bob Lowery suspends Todd Criswell. [Criswell was later fired by Lowery and he has filed suit against Lowery and O'Fallon for firing him for (1) cooperating with federal authorities investigating allegations of corruption and (2) as a whistle blower.]
  • May 12, 2006-On a Friday work began to illegally remove (old) Koch Road. The work was continued the next day (a Saturday) so that (old) Koch Road was no longer available for public travel. Residents who called St. Charles County (as well as County Councilman Joe Brazil who was the only council member to vote against the vacation of (old) Koch) about the destruction of the road were told the work was being done for utility easements and that this was only temporary. According to O'Fallon officials the road was destroyed by Foresight and McBride.
  • August of 2006-According to Steve Bender's statements on November 8, 2007, O'Fallon issued building permits sometime in this month.
  • February 8, 2007-Keith Hazelwood appeared before the O'Fallon Council on behalf of the developer and requested the City pass bill # 5487 which approved the Road dedication and easement plat of Koch Road and Tower Place. Hazelwood requested the O'Fallon Council pass this quickly because this was the last step needed to have the county vacate (old) Koch Road. Hazelwood explained that the builder wanted to close on some houses and this could not be done until the County vacated (old) Koch Road. Hazelwood was wrong in that the County required the City to accept New Koch Road and bill # 5487 specifically stated "That the owners have agreed, that the streets and other site improvements will not be accepted by (O'Fallon) until they are built in full compliance with O'Fallon ordinances and rules pertaining thereto." The council passed the bill.
  • February 8, 2007-I emailed Bob Lowery and pointed out that the City had not accepted New Koch Road and asked Mr. Lowery to advise if I was incorrect. I then asked how the builder was allowed to build on a public road. Lowery responded but did not answer any of the questions. I again emailed Lowery and asked him why he could not answer a simple question as to whether the City had accepted New Koch. Lowery again responded without answering the question and claimed the answer would require staff research and that he did not have any direct knowledge of the information.
  • February 9, 2007-Bill # 5487 was signed by the Mayor and became Ordinance 5145.
  • February 14, 2007-Steve Bender, O'Fallon's City Engineer, wrote a letter to the County stating that "the city has accepted new Koch Rd." He also stated the New Koch had been "completed,inspected, approved, opened to traffic and accepted by the City of O'Fallon pursuant to County Ordinance No. 06-048." Bender attached a copy of Ordinance 06-048, which, again, stated that (old) Koch would not be vacated until New Koch was completed, inspected, approved and accepted by O'Fallon. Bender's letter stated that O'Fallon Ordinance 5145 was "approved by the City Council and signed by the Mayor formally accepting (New Koch Road.)" Again, 5145 does not contain any language accepting New Koch Road but does state that the streets will not be accepted until they are completed in compliance with O'Fallon Ordinances. Bender's letter to the County, however, did not include a copy of 5145.
  • February 20, 2007-Based upon the February 14, 2007 letter from Bender which incorrectly stated O'Fallon had accepted New Koch, St. Charles County formally filed Ordinance 06-048 with the recorder of deeds. This is the first time anyone could claim (old) Koch Rd was vacated. Again, however, the vacation was based on a misrepresentation by O'Fallon that it had accepted New Koch.
  • April 4, 2007-Judge Lucy Rauch issues an initial order that the County's decision to vacate Koch Road was in violation of the law.
  • April 11, 2007-In response to an email I sent, Steve Bender informed me that O'Fallon had not accepted New Koch for maintenance and would not do so for some time.
  • June 14, 2007-St. Charles County and Hyland Green, in written memos and oral argument, both tried to represent to the court that O'Fallon had accepted New Koch Road . In reliance they cited the court to Steve Bender's letter of February 14, 2007. Interestingly, neither the County nor Hyland Green attached a copy of the Ordinance Bender cited which directly refuted the claim the City had accepted New Koch. When I read to the court the actual language of O'Fallon's ordinance and Mr. Bender's email stating O'Fallon had not accepted New Koch for maintenance, Harold Ellis, from the County's counselor's office, claimed he was unaware the City had not accepted New Koch for maintenance and that it was certainly the intent of the County that New Koch be accepted for maintenance before (old) Koch was vacated.
  • June 18, 2007- Judge Lucy Rauch issued her final Judgment which set aside the County Ordinance vacating (old) Koch Rd. Judge Rauch also found that (old) Koch Rd was destroyed before it was vacated.
  • November 8, 2007-Steve Bender appeared at a workshop at O'Fallon City Hall to answer questions about the City's role in allowing the road to be illegally destroyed and in issuing building permits to allow homes to be constructed on (old) Koch. The questions were provided by Lowery and some of the statements made to the Council and resident were as follows:
  1. The City wanted (old) Koch removed because with New Koch Road it was no longer needed. My response- The City did not have the authority to give away a county road and should never have approved this plan in the beginning. It just so happens that O'Fallon's Mayor at the time, Paul Renaud, was hired by McBride & Sons, the builder, after he became mayor. Renaud was hired into an executive position although he had been a dry wall installer. In addition, the construction of a new road is not a legal reason to destroy another road. New roads are often required when a new subdivision is built because of the increased traffic. By destroying a road the public already owns the taxpayers will be forced to pay for a new road to handle the increased traffic caused by O'Fallon's rapid growth.
  2. O'Fallon authorized the removal of (old) Koch when it approved the area plan in 2003. Response- Wrong. The city does not have any authority to approve the removal of a county road.
  3. (Old) Koch Road was vacated on March 27, 2006 when the County passed Ordinance 06-048. Response-Wrong. And it wasn't vacated on April 11, 2006 when 06-048 actually became effective because 06-048 required O'Fallon to accept New Koch Road. And (old) Koch wasn't vacated on February 9, 2007 when O'Fallon ordinance 5145, approving the road dedication and easement plat of Koch Road and Tower Place, became law because this ordinance specifically stated that it was not an acceptence of New Koch Road. And (old) Koch was still not vacated when the City wrote a letter on February 14, 2007 to the County (rather than send a copy of the actual ordinance) claiming Ordinance 5145 accepted New Koch Road when the ordinance said just the opposite. And (old) Koch wasn't even vacated on Feruary 20, 2007 when the County claims (old) Koch was vacated because the County alleges it did so based on O'Fallon's letter which incorrectly states New Koch was vacated. In fact, (old) Koch was never vacated.
  4. The building permits were issued by O'Fallon in August of 2006 because (old) Koch had been vacated in March 2006. Response- Wrong. See answer above.
  5. The issuance of the building permits to build homes on a public road was done through normal procedures in the building department and no one outside the building department played a role in this. Response- So Lowery asks one of his employees a question whether this was done through normal procedures without any outside influence. Lowery had already made it clear he wanted this project to move forward "without any further delays on our part." The employee who pointed out the obvious reasons why building permits could not be issued was suspended and two days later the builder and developer began removing (old) Koch. Later on Lowery claims he had no knowledge regarding how building permits were issued. Some might believe Lowery's asked a CYA question and the employee knew he had to provide a CYA answer for Lowery but I'll let you make the call on this one.

Here is how I see it: The County, developer, builder and O'Fallon knew that County's decision to vacate (old) Koch was not legal and, therefore, likely to be overturned by a Judge. They were right. However, in preparation for this occurrence they decided to openly violate the law (not much of a risk since those responsible for enforcing the law were actively violating it themselves), build houses on (old) Koch and then argue "but Judge even if we were wrong how can you kick these poor innocent people out of their homes?" Which is exactly what they have argued. However, their attempts to pit the new homeowners (who truly are innocent victims) against the residents (who still are without a new publicly maintained road) that had to do what their own elected representatives refused to do (follow the law), has not worked. Both the homeowners and residents know who really is to blame in this and their is no animosity between them. Instead, everyone wants justice, something many of us use to believe was the function of government. How sadly ironic.

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