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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
BETTY WILSON AND )
MICHAEL MACMANN, )
)
Plaintiffs, )
)
v. ) Case No. 2:14-CV-04220
)
CITY OF COLUMBIA AND )
MIKE MATTHES, )
)
Defendants. )
EMERGENCY MOTION FOR EXTENSION OF STATE COURT TEMPORARY
RESTRAINING ORDER
Pursuant to Rule 65(b) of the Federal Rules of Civil Procedure, Plaintiffs respectfully
requests this Court enter a temporary restraining order prohibiting the defendants from taking
any action with respect to the proposed student housing development at Eighth and Locust in
Columbia, Missouri. Plaintiff incorporates by reference the allegations of the verified Petition
filed in the Circuit Court of Boone County, Missouri on August 12, 2014, made part of the
record in this Court by the Notice of Removal at Doc. 1-1, and states further as follows:
BACKGROUND FACTS
1. On July 31, 2014, the City Clerk of the City of Columbia, Missouri certified a
referendum petition to repeal Bill 130-14 as sufficient to the City Council.
2. Within hours of the certification, the Defendants announced their intention to
issue permits regarding the proposed student housing development on Eighth and Locust
regardless of the status of the referendum petition and the rights of the Plaintiffs. See Verified
Petition Ex. H. Doc 1-1 at 114.
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3. On August 18, 2014, Defendant City repealed Bill 130-14, the second ordinance
attempting to authorize a development agreement necessary to permit this development to
proceed.
4. The first ordinance attempting to authorize a development agreement necessary to
permit this development to proceed, Bill 62-14, was the subject of a referendum petition that was
submitted to the Defendant City on April 8, 2014. Defendant City repealed this ordinance in June
2014.
5. Under Section 135 of the Columbia City Charter, the Defendant City can take no
action regarding the proposed development for a period of six months after the repeal of the
ordinance. The Defendants are not authorized to issue permits to the project for a period of at
least six months following August 18, 2014.
6. The Defendants have already overridden the rights of the citizens and the
Plaintiffs as expressed in the referendum petition to repeal Bill 62-14, which was repealed by
Council vote in June 2014, by issuing street and sidewalk closure permits to facilitate this
development on July 7, 2014.
THE STATE COURT TRO AND RELATED PROCEEDINGS
7. On August 13, 2014, Judge Christine Carpenter of the 13
th
Judicial Circuit,
entered a temporary restraining order pursuant to Missouri Rule 92.02(b). See Doc 1-3 at 1 of
268, also attached here as Exhibit A. Under federal law, this injunction continues in full force
and effect as if the case were not removed. See Granny Goose Foods, Inc. v. Brotherhood of
Teamsters & Auto Truck Drivers Local No. 70, 415 U.S. 423 (1974) ("[I]njunctions and other
orders obtained in state court all remain effective after the case is removed to federal court.").
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8. On August 18, 2014, Plaintiffs filed a motion for sanctions against the Defendants
for violating the TRO in the Circuit Court of Boone County. A copy of that motion was included
in the documents filed with the Notice of Removal. See Doc 1-3 at 242-246.
9. The current temporary restraining order will expire under state court rules at the
end of Monday, August 25, 2014.
10. The Circuit Court of Boone County set this case for a motion hearing at 9:00 AM
on Monday, August 25, 2014, while the TRO would still be in effect. Before that hearing could
take place, on August 21, 2014, Defendants filed their notice of removal.
DEFENDANTS ARE POISED TO ISSUE PERMITS TO THE PROPOSED
DEVELOPMENT
11. On Thursday, August 21, the same day that Defendants removed this case to this
Court, one of the Proposed Intervenors, or their affiliate, provided notice via email to adjacent
property owners that they intend to begin demolition on August 25, 2014. A copy of this notice
is attached to this motion as Exhibit B.
12. As noted above in paragraph 2, Defendants announced their intention to authorize
this development to proceed while the second citizen referendum petition, signed and circulated
by the Plaintiffs, was still pending.
PROPOSED INTERVENORS DO NOT PRESENTLY HAVE PERMITS AND
ARE NOT ENTITLED TO PERMITS
13. As described above in paragraphs 3, 4, and 5, the Plaintiffs' rights under the
Columbia Charter prohibit Defendants from authorizing this project for six months after the date
of the repealed ordinance.
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14. In addition to violating the Plaintiffs' rights, the Defendants issuance of permits to
facilitate this proposed development would also contravene the Columbia Code of Ordinances.
There are presently no effective applications for any permits for this proposed development.
15. The Columbia code of ordinances requires a property owner or its authorized
agent to apply for and obtain a permit to demolish the buildings. Columbia Code Sec. 6-16
(adopting 2012 Edition of the International Building Code); International Building Code Section
105 ("Any owner or authorized agent who intends to construct, enlarge, alter, repair, move,
demolish or change the occupancy of a building or structure . . . shall first make application to
the building official and obtain the required permit.")
1
16. As the owner of the subject property, Proposed Intervenor HSRE-ODC II
MIZZOU LLC or its authorized agent are the only entities with standing to seek and obtain
necessary permits for the development.
17. HSRE-ODC II MIZZOU LLC did not exist until June 2014, it was not authorized
to do business in Missouri until July 30, 2014, and it did not own the property until August 7,
2014. See Plaintiffs' Opposition to Motion to Intervene, Doc 1-3 at 247-266,
2
also attached
hereto as Exhibit C.
18. Prior to its authorization to do business in Missouri on July 30, 2014, HSRE-ODC
II MIZZOU LLC had no agents with authority to apply for any such permits.
19. On information and belief, HSRE-ODC II MIZZOU LLC has not applied to the
Defendants to issue any permits regarding the proposed student housing development since it
became authorized to do business in Missouri on July 30, 2014.
1
The full text of the International Building Code is available in searchable format here:
https://archive.org/stream/gov.law.icc.ibc.2012/icc.ibc.2012_djvu.txt
2
Certain of the filings in the state court action were presented out of order in the filings Defendants assembled
together with the notice of removal.
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A TRO REMAINS APPROPRIATE TO PROTECT THE PLAINTIFFS'
RIGHTS FROMIRREPARABLE HARM
20. This Court should extend the state court temporary restraining order pursuant to
Rule 65(b) to preserve the status quo until such time as the parties can appear before the Court on
a Motion for Preliminary Injunction.
21. Plaintiffs do not oppose any effort to expedite the hearing.
22. Plaintiffs incorporate by reference their brief in opposition to Proposed
Intervenors Motion to Dissolve the TRO, attached hereto as Exhibit D.
23. Plaintiffs have no adequate remedy at law.
24. There is no immediate harm to Defendants in issuing this restraining order.
25. Public policy favors the issuance of a restraining order.
26. A proposed restraining order is attached to this motion as Exhibit E.
Respectfully submitted,
STINSON LEONARD STREET LLP
By: /s/ Jeremy A. Root
Jeremy A. Root, No. 59451
230 W. McCarty Street
Jefferson City, MO 65101
(573)636-6263
(573)636-6231 (fax)
Jeremy.Root@stinsonleonard.com
HOLDER SUSAN SLUSHER
OXENHANDLER
Josh Oxenhandler, No. 51645 (application
for admission to the Bar of this Court
currently in process)
107 N. Seventh Street
Columbia, MO 65201
Oxenhandler@gmail.com
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Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing was served through the CM/ECF system, on
the 22nd day of August, 2014, upon all attorneys of record.
/s/ Jeremy A. Root
Attorney for Plaintiff
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