DAVID MANGLESDORF and GLENNA MANGLESDORF, Plaintiffs, vs, MIDWEST REGIONAL BANK, and THE CITY OF ARNOLD, COUNTY OF JEFFERSON, STATE OF MISSOURI, BY THE PLANNING COMMISSION

7/27/2019 DAVID MANGLESDORF and GLENNA MANGLESDORF, Plaintiffs, vs, MIDWEST REGIONAL BANK, and THE CITY OF ARNOLD, COUNTY OF JEFFERSON,

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13J E-CCO0699STATE OF MISSOURI ))ss.couNTY oF JEFFERSON )

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, MISSOURIDAVID MANGLESDORFandGLENNA MANGLESDORF,

Plaintiffs,vs,MIDWEST REGIONAL BANK,andTHE CITY OF ARNOLD,COUNTY OF JEFFERSON,STATE OF MISSOURI,BY THE PLANNING COMMISSIONDefendants.

Case No.

PETITIONCOME NOW Plaintiffs, by and through their attorney, Chrislopher L. Yarbro, of

Kennedy, Kennedy, Robbins, & Yarbro, LC, Attorneys and Counselors at law, and fortheircause of action against the Defendants, state as follows:

FACTS COMMON TO ALL COUNTS1. Plaintiffs own property in Jefferson County, Missouri, (hereafter "LOT 4"), which is

more particularly described as follows:Lot 4 of Revised Richardson Square Lots 3/4 & A, a subdivision recorded in Book114, Page 7A of the Land Records of Jefferson County, Missouri.See attached easement plat map at Exhibit A attached hereto and incorporatedherein.


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Defendant, Midwest Regional Bank (hereinafter "Bank'), is a corporation doingbusiness in the State of Missouri, whose principal place of business is 363 FestusCenter Drive, Festus, Missouri 63028.Defendant, City of Arnold, (hereinafter "City") is a municipal corporation organizedand existing under and by virtue of the laws of the $tate of Missouri and located inJefferson County. The City's Planning Commission is created by municipalordinance located in Article ll Section 18 - 2A of the City's code of ordinances.Defendant Bank owns property commonly known as Lot 3A of Richardson SquarePlat Six, which is contiguous to Plaintiffs' land (hereinafter "Lot 3A"). See easementplat map attached hereto as Exhibit B and incorporated herein.ln 1994, Plaintiffs entered into an Mutual Agreement Restriction of Use and anlngress - Egress Easement (hereinafter "Easement") with Billy L. Lamb andTheresa M. Lamb, previous owners of the property nowowned by Defendant Bank'Said Easement was recorded in the land records of Jefferson County, Missouri inBook 614 at Page 486 on March 22,1994. See Exhibit A and B attached hereto.Said Easement created "cross access rights." Persons subject to the easement arerequired to maintain an"open area twenty four (24) feet in width running adjacentto the boundary line between their lots which shall be used for ingress and egressfrom and to the adjoining lot. The area may be used by the owner of the lot in anymanner that does not preclude ingress and egress across such area for vehiculartraffic to the adjoining lot.iSaid Easement has served as a point of access for both Lots 3A and 4 since theabove described property rights were created.

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On May 14, 2013, Defendant Bank presented a site plan to Defendant City'sPlanning Commission at its regular monthly meeting.The proposed site plan included changes which will result in a partially blockedaccess easement and consists of a three inch tall and several foot wide "mountablecurb" more appropriately described as a median. Said median will run along thecenter line of the easement. The median will be accompanied by painted arrowsand markings designed for the express purpose of instructing traffic flow.Specifically, the median and accompanying markings is designed to discouragepersons from crossing over the area of the easement that it covers. See projectdata maps attached hereto at Exhibit C and incorporated herein.The proposed site plan was approved by the Planning Commission on May 14,2013, upon express conditions including that Defendant Bank "[p]rovide theadjacent owners approvalforthe partially blocked access easement along the northproperty line." See Exhibit D attached hereto and incorporated herein.Defendant Bank, by and through its President, Mike Bender, contacted Plaintiff,David Manglesdorf at some time between May 14, 2013 and June 4, 2013 todiscuss the easement, but the parties were not able to reach an agreement.Plaintiff David Manglesdorf did not give his approval for blocking the easement.On May 9,2013, Defendant City, by and through Mary P. Holden, its CommunityPlanning Development Director, informed the Planning Commission bymemorandum that John King, legal counsel of the Defendant Bank, requested thePlanning Commission to remove the condition requiring the adjacent owners'

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approval to partially block access across the easement. See Exhibit D, attachedhereto and incorporated herein.Ms. Holden provided her analysis of the request and indicated that Defendant Bankhad contacted Plaintiff David Manglesdorf and learned that Plaintiff DavidManglesdorf does not desire a curb. Ms. Holden further indicated that PlaintiffDavid Manglesdorf "offered no solution." See Exhibit D, attached hereto andincorporated herein.Plaintiffs did not have any communications regarding the proposed blockedeasement with Mary P. Holden prior to her May 9,2013 memorandum.On June 4,2013,John P. King of Lathrop & Gage, LLP, legalcounselforDefendantBank, sent correspondence to Mary Holden implying that Plaintiff DavidManglesdorf desired a curb which would restrict the Defendant Bank's use of theeasement and informed that Defendant Bank did not desire a large curb. Thecommunication further indicated that should the Plaintiffs disagree with thedetermination that the ptanned median was not crossable, they would have aremedy in court. See Exhibit E, attached hereto and incorporated herein.At the Planning Commission's regular monthly meeting, held June 1'1, 2013,Defendant Bank appeared, by and through its counsel, John P. King of Lathrop &Gage, LLP, and requested removal of the condltion whereby Plaintiffs' approvalwasrequired to restrict the easement. Evidence was presented regarding DefendantBank's engineer's opinion that the median is passable "if needed" and regardingPlaintiff David Manglesdorfs alleged statement that he did not want the curb butoffered no solution. The Planning Commission further heard testimony that the

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Plaintiffs' business was not cut off as there were other areas that could be used toaccess the property. The Planning Commission heard legal opinions that shouldthe Plaintiffs desire legal recourse in Court, Defendant Bank would be sued butDefendant City would not. Based upon this testimony, removal of the condition wasvoted upon and approved by the Planning Commission during this meeting. SeeExhibit F, attached hereto and incorporated herein'plaintiffs were not present at the June 1 1,2013 planning rneeting described above'Plaintiffswere not provided notice regarding the planning meeting. Plaintiffs had nonotice of the proposed removal of the condition. Plaintiffs had no opportunity to beheard on alleged statements made by Plaintiff David Manglesdorf or to provideinformation regarding their rights of and to the property in question.

COUNT IOn August7,2013, after approval by the Planning Commission, Defendant Bankbegan constructing the "mountable curb" median across the easement specificallydesigned to alter the access point to the Plaintiffs' property and to direct traffic flowaway therefrom.A controversy exists between the Plaintiffs and Defendants Bank and Cityconcerning the ownership and usage of the easement as follows:a. Plaintiffs contend that installing a curb over the easement violates'theeasement requirement that the parties maintain an "open area" and

specifically results in a constructive preclusion of ingress and egress acrosssuch area for vehicular traffic to the adjoining lot in contravention of theterms of the easement and;b. Plaintiffs further contend that Defendant Bank has stated, by and through itsPresident, Mike Bender, that painting will be performed to direct traffic inconjunction with the installation of the curb, the result of which will be to

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discourage vehicular traffic across the easement which was entered into forthe specific purpose of permitting vehicular traffic'c. Plaintiffs further contend that the combination of the curb and proposed

painting will confuse drivers and preclude vehicular traffic between Lots 3Aand 4.d. Defendant Bank contends the easement does not preclude ingress andegress because traversing the median "is possible if needed."A declaratory judgment is both necessary and properto set forth and determine therights, obligations and liabilities that exist between the Plaintiffs and Defendants.Plaintiffs further contend that immediate and irreparable injury, loss or damage willresult in the absence of the Court order granting a temporary restraining order, asfurther construction to block the easement will block access to Plaintiffs' businessand misdirect customers, resulting in lost income for Plaintiffs.Further, that said construction is currently underway and if not ceased immediately,will result in permanent changes to the entrylvay into Plaintiffs' place of business.As such, construction should be stopped and the property returned to itsunmolested condition until the matter is settled by the Court in order to preventimmediate and irreparable injury, loss or damage to the Plaintiffs'WHEREFORE, Plaintiffs pray this Court enter a Judgment and Order as follows:a. Declare that the proposed construction violates the terms of the Easement

by precluding ingress and egress across the area for vehicular traffic andordering the Defendants Bank and City to conform their actions to such aJudgment; '

b. Declare the rights and other legal relations between the parties;

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c. Order Defendants Bank and City to pay Plaintiffs' costs and attorneys feesexpended herein;lssue an Order that temporarily restrains Defendant Bank from any furtherconstruction on the Easement;Setting this cause for preliminary injunction hearing no later than thirty dayspost filing of this application;Enter a permanent restraining Order requiring Defendant Bank toimmediately return the ingress and egress to its unmolested condition andmaintain such unmolested condition until a decision can be reached in thisproceeding;

g. And for such further and other relief as the Court deems just and proper.COUNT II

The City's Planning Commission is created bymunicipalordinance located inArticlell Seciion 18 - 20 of the city's code of ordinances.Article ll Section 18 of the city code requires submission and approval by theplanning comrnission of any plan for construction or alteration of any street or otherpublic facility whether publicly or privately owned prior to commencement of suchalterations to the city plan.Pursuant to such requirements the Defendant Bank submitted its proposed site planto the City's Planning Commission for approval. Such approvalwas given by theCity's Planning Commissfbn, conditioned upon approval of the "partially blockedeasement" by the Plaintiffs.

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Defendant Bank was unable to obtain such approval. Therefore, Defendant Bankcoordinated with The City to unilaterally interfere with Plaintiffs' ownership interestin the property without due process of law. See Exhibit G, attached hereto andincorporated herein.Defendant City's decision to rescind the requirement that the Plaintiffs' approval beobtained prior to blocking the easement and simultaneous approval of DefendantBank's actions to block the easement constructively ejected the Plaintiffs from theeasement by construction of a median therein. Said approval and constructiveejectment is an illegal taking of the Plaintiffs' private property interest without dueprocess of law.WHEREFORE, Plaintiffs pray that this Court enter a Judgement as follows:a. Enter a Writ of Mandamus ordering the City's Planning Commission to

reinstate the requirement that Plaintiffs' approval be obtained prior toapprovalof Defendant Bank's proposed site plan.

b. Enter a temporary restraining order preventing the Defendants frominterfering with the Plaintiffs' continued use of the land in the same manneras it was prior to the illegal taking.

c. Setting this cause for preliminary injunction hearing no later than thirty dayspost filing of this application;

d. Order reimbursement of damages, sustained by Plaintiffs as a result of thispurported taking, be assessed against Defendants and order paymentthereof by Defendants; and


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Order Defendants to pay Plaintiffs costs and attorneys fees expendedherein;And for such further and other relief as the Court deems just and proper.

Respectfully submitted,KENNEDY, KENNEDY, ROBBINS & YARBRO, LC

#566591165 Cherry StreetP. O. Box 696Poplar Bluff, MO 63902Telephone: (573)686-2459Telefax: (573) [email protected] FOR PLAINTIFFSDAVID AND GLENNA MANGLESDORF

CERTIFICATE OF SERVICEThe undersigned hereby certifies that a copy of the foregoing was served upon theDefendant by placing a copy of same in the U.S. Mail at the Post Office in Poplar Bluff,Missouri, addressed to its qttorney as follows: John P. King, 7701 Forsyth Blvd. Ste' 500,Clayton, MO 63105 this -4* O.y of August, 2013. A


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STATE OF MTSSOURT )couNTY oF JEFFE**o*i tt'

H# AIroru ArrroAyrWe, David Mangelsdorf and Glenna Mangelsdorf, the Plaintiffs herein, being flrstduly sworn, do hereby state upon our oath that the statements and allegations containedin the foragoing Petition are true and correct to the best of our knowledge, information andbelief.

SUBSCRIEEB AND S\ff:ORN. to ,before me, a NOir! Public, at office inMissouri, this ?'l,r Dayof I '" 2,0tr.3.

'(Seal):4

Documents

DAVID MANGLESDORF and GLENNA MANGLESDORF, Plaintiffs, vs, MIDWEST REGIONAL BANK, and THE CITY OF ARNOLD, COUNTY OF JEFFERSON, STATE OF MISSOURI, BY THE PLANNING COMMISSION