Missouri American Water will construct a new, larger water tower on Sappington Barracks Road in Sunset Hills after Mayor Pat Fribis broke a tie for a conditional-use permit over fears of a lawsuit, despite the objections of neighbors.

The Board of Aldermen deadlocked 4-4 on the CUP in a special meeting called by the mayor Jan. 26. Ward 1 Aldermen Ann McMunn and Joe Stewart, Ward 3 Alderman Cathy Friedmann and Ward 2 Alderman Casey Wong voted against the CUP, while Ward 2 Alderman Steve Bersche, Ward 3 Alderman Nathan Lipe and Ward 4 Aldermen Thompson Price and Mark Colombo voted in favor. Fribis broke the tie in favor of Missouri American Water.

The call for the special meeting came after the aldermen rejected the CUP in a 4-3 vote earlier this month. Because Missouri American Water is a public entity, the city is limited in its ability to reject development petitions based on zoning, as long as the developments would not be dangerous to the residents or the city.

Missouri American Water wants to build a larger elevated, above-ground water tower at 11832 Sappington Barracks Road, north of the property already occupied by an older Missouri American Water tower that was constructed in 1965, when water was still overseen by St. Louis County.

The new tower will be 105 feet tall with an 82-foot diameter and will hold 1.5 million gallons. The current tower is 95 feet tall with a 60-foot diameter and holds 250,000 gallons.

The new elevated tank would serve a broader area of South County, including communities and municipalities south of Interstate 44, west of the River des Peres and northwest of Interstate 55, the utility told The Call.

Fribis said she had her attorney research the issue.

“The city of Sunset Hills cannot impose its regulations … on Missouri American Water that would interfere with its regulatory power,” Fribis said at the special meeting before opening the floor for discussion. “A review of Missouri case law establishes that municipalities cannot impose its zoning laws or regulations … if doing so would interfere with Missouri American Water. … We are listening (to residents), but the city’s hands are tied in this and we just don’t have any jurisdiction over this.”

At the Jan. 12 meeting, City Attorney Robert E. Jones pointed to a case last year in St. Charles County involving Missouri American Water. In that instance, the St. Charles County Board of Zoning Adjustment denied a variance for the utility company to build a tower in a residential area in O’Fallon that had a height limit that the tower would exceed. A circuit court in St. Charles County ruled that the county could not impose its zoning standards on a public utility company.

“The CUP process is clear but it has to be reconciled with the law that the mayor just read to be the board because we are limited in our ability to impose zoning,” Jones said at the special meeting. “(We do not have jurisdiction) with respect to zoning. We do with respect to public health and safety. If it were to be built in a way that would be a dangerous situation to the adjoining residential areas, then the city would have the ability to regulate it. But there’s no reason to believe that would be the case.”

The contention around the water tower comes on the heels of another veto by the mayor in December to lease out a portion of Stephen J. Bander Park in the city for a rugby complex. Residents claimed at that time that the city was not doing its due diligence in reviewing development petitions — a similar assertion made in some of the public comments during the meeting last week.

“I am requesting that more details are disclosed before a vote takes place,” said Crestwick Drive resident Angie Weigel. “I am afraid we are granting this permit without doing our proper due diligence. … Additionally, was a public notice ever posted, was a community impact survey conducted to get feedback from the surrounding residents?”

Former mayoral candidate John Stephens, who was also a fierce opponent of the rugby development, encouraged the board to continue listening to residents’ concerns.

“Our residents provide critical input that our elected officials need. … The water tower replacement has concerned many residents,” said Stephens in his public comment, which was read into the record by Fribis. “I applaud the residents who are taking the time to say their concerns. … If residents are concerned, (the board) should listen … if alternatives exist, let them be explored and … have every consideration for those affected.”

Not all public comments were against the tower. Missouri American Water has told the board that the existing tower has “reached the end of its useful life” and is in need of a replacement to better move water through the system. Resident Patricia Renick, who lives near the tower, said that she would be happy to see the old tower go.

“I am in for replacement of the leaky tower. My water pressure is horrible in my house and I have contacted Missouri American Water and they have basically washed their hands of the situation. Mine was so low I couldn’t even run a sprinkler. As explained … it’s hit or miss in the area,” said Renick. “Has anyone also said what the plan will be for their residents if the (existing) tower fails?”

Fribis said that in the future, zoning for public utilities would be better to come before the board as a resolution rather than a CUP, since the city is so limited in regulation authority. The city filed and lost a lawsuit against St. Louis County in 2013 after rejecting a larger communications tower at the South County Health Center, but St. Louis County won that lawsuit. In a similar aspect as the St. Charles case, Sunset Hills had height restrictions that the tower would violate, but a judge ruled that those had no legal effect against a public entity like the county, and that going through the city zoning process was a courtesy.

“I’d like to make a motion to adjourn,” said Wong. “If apparently we have no zoning authority … I’m kind of befuddled as to what we’re doing here because if our hands are truly tied, why are they seeking approval?”

Fribis replied that Missouri American Water was willing to go through the process to “be good neighbors” and work with the city regarding the water tower’s landscaping and lighting.

“An elevated tank is really the most reliable, most useful form of storage in a water distribution system,” said Derek Linam, an engineering manager with Missouri American Water. “Fire flows have changed over the years … fire flows have continued to increase, peak hour usages have continued to increase, and so an elevated tank just provides that instantaneous response to the system.”

The utility wants the Sappington Barracks site because of the topography of the area, in addition to the fact that an existing tower already exists nearby. The existing tower is built on a ridge, which helps move water through the system. Missouri American Water wants to continue to use that ridge with the new tower.

“This is our primary, most attractive site and if this site isn’t usable, we’ll have to look at reconstructing on the existing site,” said Linam. “This is the most available and really best site operationally and efficiency for us. Our system was designed around this site already, designed for this elevated tank at this current location already. … It’s the most cost-effective site for us to build. It is our primary site.”

After some further discussion, the board voted on the CUP, with the eight aldermen divided down the middle. Fribis broke the tie, stating, “I feel compelled to follow the laws of the Missouri Supreme Court, the law of the land, and I am going to vote in favor of the new water tower.

“I believe if we do not go forward with this our city will be in a lawsuit,” said Fribis. “I do not want our city to move forward in that direction.”

Fribis encouraged residents with concerns about the water tower to contact Public Works Director Bryson Baker, who will forward those concerns to Missouri American Water to allow the utility company an opportunity to respond. Suggestions about the landscaping, lighting and paint job are also welcome.