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STATE OF MISSOURI

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JEFFERSON )

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IN THE CIRCUIT COURT OF JEFFERSON COUNTY, MISSOURI

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DAVID MANGLESDORF and GLENNA MANGLESDORF,

Plaintiffs, vs,

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Case No.

MIDWEST REGIONAL BANK, and THE CITY OF ARNOLD, COUNTY OF JEFFERSON, STATE OF MISSOURI, BY THE PLANNING COMMISSION Defendants.
PETITION

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

Kennedy, Kennedy, Robbins, & Yarbro, LC, Attorneys and Counselors at law, and fortheir

cause of action against the Defendants, state as follows: FACTS COMMON TO ALL COUNTS

1.

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 Book 114, Page 7A of the Land Records of Jefferson County, Missouri.

See attached easement plat map at Exhibit A attached hereto and incorporated
herein.

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2.

Defendant, Midwest Regional Bank (hereinafter "Bank'), is a corporation doing business in the State of Missouri, whose principal place of business is 363 Festus Center Drive, Festus, Missouri 63028.

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Defendant, City of Arnold, (hereinafter "City") is a municipal corporation organized and existing under and by virtue of the laws of the $tate of Missouri and located in

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Jefferson County. The City's Planning Commission is created by municipal

ordinance located in Article ll Section 18 - 2A of the City's code of ordinances.
4.

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Defendant Bank owns property commonly known as Lot 3A of Richardson Square

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Plat Six, which is contiguous to Plaintiffs' land (hereinafter "Lot 3A"). See easement
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plat map attached hereto as Exhibit B and incorporated herein.

5.

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ln 1994, Plaintiffs entered into an Mutual Agreement Restriction of Use and an

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- Egress Easement (hereinafter "Easement") with Billy L. Lamb and

Theresa M. Lamb, previous owners of the property nowowned by Defendant Bank' Said Easement was recorded in the land records of Jefferson County, Missouri in Book 614 at Page 486 on March 22,1994. See Exhibit A and B attached hereto.
6.

Said Easement created "cross access rights." Persons subject to the easement are

required to maintain an"open area twenty four (24) feet in width running adjacent to the boundary line between their lots which shall be used for ingress and egress from and to the adjoining lot. The area may be used by the owner of the lot in any
manner that does not preclude ingress and egress across such area for vehicular

traffic to the adjoining lot.i

7.

Said Easement has served as a point of access for both Lots 3A and 4 since the above described property rights were created.

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On May 14, 2013, Defendant Bank presented a site plan to Defendant City's
Planning Commission at its regular monthly meeting.

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The proposed site plan included changes which will result in a partially blocked
access easement and consists of a three inch tall and several foot wide "mountable

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curb" more appropriately described as a median. Said median will run along the
center line of the easement. The median will be accompanied by painted arrows

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and markings designed for the express purpose of instructing traffic flow.
Specifically, the median and accompanying markings is designed to discourage persons from crossing over the area of the easement that it covers. See project data maps attached hereto at Exhibit C and incorporated herein.
10.

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The proposed site plan was approved by the Planning Commission on May 14,

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2013, upon express conditions including that Defendant Bank "[p]rovide the
adjacent owners approvalforthe partially blocked access easement along the north

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property line." See Exhibit D attached hereto and incorporated herein.

11.

Defendant Bank, by and through its President, Mike Bender, contacted Plaintiff,

David Manglesdorf at some time between May 14, 2013 and June 4, 2013 to discuss the easement, but the parties were not able to reach an agreement.
Plaintiff David Manglesdorf did not give his approval for blocking the easement. 12. On May 9,2013, Defendant City, by and through Mary P. Holden, its Community

Planning Development Director, informed

the

Planning Commission by

memorandum that John King, legal counsel of the Defendant Bank, requested the

Planning Commission to remove the condition requiring the adjacent owners'

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approval to partially block access across the easement. See Exhibit D, attached hereto and incorporated herein.
13. Ms. Holden provided her analysis of the request and indicated that Defendant Bank

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had contacted Plaintiff David Manglesdorf and learned that Plaintiff David
Manglesdorf does not desire a

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curb. Ms. Holden further indicated that Plaintiff

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David Manglesdorf "offered no solution." See Exhibit D, attached hereto and

incorporated herein. 14.

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Plaintiffs did not have any communications regarding the proposed blocked
easement with Mary P. Holden prior to her May 9,2013 memorandum.

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15.

On June 4,2013,John P. King of Lathrop & Gage, LLP, legalcounselforDefendant

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Bank, sent correspondence

to

Mary Holden implying that Plaintiff

David

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Manglesdorf desired a curb which would restrict the Defendant Bank's use of the

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easement and informed that Defendant Bank did not desire a large curb. The communication further indicated that should the Plaintiffs disagree with the determination that the ptanned median was not crossable, they would have a
remedy in court. See Exhibit E, attached hereto and incorporated herein.
16.

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' approvalwas required to restrict the easement. Evidence was presented regarding Defendant

Bank's engineer's opinion that the median is passable "if needed" and regarding Plaintiff David Manglesdorfs alleged statement that he did not want the curb but

offered 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 to access the property. The Planning Commission heard legal opinions that should

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the Plaintiffs desire legal recourse in Court, Defendant Bank would be sued but
Defendant City would not. Based upon this testimony, removal of the condition was

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voted upon and approved by the Planning Commission during this meeting. See Exhibit F, attached hereto and incorporated herein' 17. plaintiffs were not present at the June 1 1,2013 planning rneeting described above' Plaintiffswere not provided notice regarding the planning meeting. Plaintiffs had no
notice of the proposed removal of the condition. Plaintiffs had no opportunity to be

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heard on alleged statements made by Plaintiff David Manglesdorf or to provide information regarding their rights of and to the property in question. COUNT
18.
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On August7,2013, after approval by the Planning Commission, Defendant Bank began constructing the "mountable curb" median across the easement specifically designed to alter the access point to the Plaintiffs' property and to direct traffic flow away therefrom.

19.

A controversy exists between the Plaintiffs and

Defendants Bank and City

concerning the ownership and usage of the easement as follows:

a.

Plaintiffs contend that installing a curb over the easement violates'the easement requirement that the parties maintain an "open area" and specifically results in a constructive preclusion of ingress and egress across such area for vehicular traffic to the adjoining lot in contravention of the terms of the easement and;
Plaintiffs further contend that Defendant Bank has stated, by and through its President, Mike Bender, that painting will be performed to direct traffic in conjunction 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 for the specific purpose of permitting vehicular traffic'
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20.

Plaintiffs further contend that the combination of the curb and proposed painting will confuse drivers and preclude vehicular traffic between Lots 3A and 4.

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Defendant Bank contends the easement does not preclude ingress and egress because traversing the median "is possible if needed."

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A declaratory judgment is both necessary and properto set forth and determine the

rights, obligations and liabilities that exist between the Plaintiffs and Defendants.

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21.

Plaintiffs further contend that immediate and irreparable injury, loss or damage will result in the absence of the Court order granting a temporary restraining order, as

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further construction to block the easement will block access to Plaintiffs' business and misdirect customers, resulting in lost income for Plaintiffs.
22. Further, that said construction is currently underway and if not ceased immediately,

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will result in permanent changes to the entrylvay into Plaintiffs' place of business.
23.

As such, construction should be stopped and the property returned to

its

unmolested condition until the matter is settled by the Court in order to prevent immediate 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 and ordering the Defendants Bank and City to conform their actions to such a

Judgment; b.

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Declare the rights and other legal relations between the parties;

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c.
d.

Order Defendants Bank and City to pay Plaintiffs' costs and attorneys fees expended herein; lssue an Order that temporarily restrains Defendant Bank from any further construction on the Easement;

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Setting this cause for preliminary injunction hearing no later than thirty days
post filing of this application;

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Enter

permanent restraining Order requiring Defendant Bank to

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immediately return the ingress and egress to its unmolested condition and maintain such unmolested condition until a decision can be reached in this
proceeding;

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

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The City's Planning Commission is created bymunicipalordinance located inArticle

ll Seciion 18 - 20 of the city's code of ordinances.

25.

Article

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Section 18 of the city code requires submission and approval by the

planning comrnission of any plan for construction or alteration of any street or other public facility whether publicly or privately owned prior to commencement of such

alterations to the city plan.

26" Pursuant to such requirements the Defendant Bank submitted its proposed site plan to the City's Planning Commission for approval. Such approvalwas given by the

City's Planning Commissfbn, conditioned upon approval of the "partially blocked easement" by the Plaintiffs.

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Defendant Bank was unable to obtain such approval. Therefore, Defendant Bank coordinated with The City to unilaterally interfere with Plaintiffs' ownership interest in the property without due process of law. See Exhibit G, attached hereto and incorporated herein.

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28.

Defendant City's decision to rescind the requirement that the Plaintiffs' approval be obtained prior to blocking the easement and simultaneous approval of Defendant
Bank's actions to block the easement constructively ejected the Plaintiffs from the

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easement by construction of a median therein. Said approval and constructive ejectment is an illegal taking of the Plaintiffs' private property interest without due
process of law.

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WHEREFORE, Plaintiffs pray that this Court enter a Judgement as follows:

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a.

Enter a Writ of Mandamus ordering the City's Planning Commission to reinstate the requirement that Plaintiffs' approval be obtained prior to approvalof Defendant Bank's proposed site plan.

b.

Enter

temporary restraining order preventing the Defendants from

interfering with the Plaintiffs' continued use of the land in the same manner

as it was prior to the illegal taking.

c. d.

Setting this cause for preliminary injunction hearing no later than thirty days post filing of this application; Order reimbursement of damages, sustained by Plaintiffs as a result of this

purported taking, be assessed against Defendants and order payment

thereof by Defendants; and

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Order Defendants to pay Plaintiffs costs and attorneys fees expended

herein;

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And for such further and other relief as the Court deems just and proper. Respectfully submitted, KENNEDY, KENNEDY, ROBBINS & YARBRO, LC

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#56659 1165 Cherry Street P. O. Box 696 Poplar Bluff, MO 63902 Telephone: (573)686-2459 Telefax: (573) 686-7822 Chris@kkrylawfirm.coll ATTORNEY FOR PLAINTIFFS DAVID AND GLENNA MANGLESDORF

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CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing was served upon the Defendant 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, O.y of August, 2013. A Clayton, MO 63105 this

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STATE OF

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We, David Mangelsdorf and Glenna Mangelsdorf, the Plaintiffs herein, being flrst
duly sworn, do hereby state upon our oath that the statements and allegations contained
in the foragoing Petition are true and correct to the best of our knowledge, information and

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belief.

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SUBSCRIEEB AND S\ff:ORN. to ,before me,

Missouri, this

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