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IN THE CIRCUIT COURT OF BOONE COUNTY, MISSOURI

BETTY WILSON, )
MICHAEL MACMANN, )
)
)
Plaintiffs )
v. ) Case No. 14BA-CV02668
)
CITY OF COLUMBIA )
)
MIKE MATTHES, )
)
)
Defendants. )

PLAINTIFFS' SUGGESTIONS IN OPPOSITION TO INTERVENORS' MOTION TO
DISSOLVE TRO

This Court entered a temporary restraining order on Wednesday, August 13 to preserve
the status quo and protect the Plaintiffs' rights from being violated any further by the Defendants.
The TRO this Court entered complied with Rule 92.02(b) in every respect. Given the nature of
the Defendants' conduct and their continual assurances to the Proposed Intervenors regarding
their ability to proceed with this project regardless of the Plaintiffs' rights, a no notice TRO was
appropriate. In their motion to dissolve the temporary restraining order, the Proposed Intervenors
claim that they have already suffered irreparable harm and millions of dollars in damages since
Wednesday. This Court should reject their hollow bombast and rely instead on the clear evidence
that the Plaintiffs' rights have already been and, absent restraint from this Court, will continue to
be violated by the Defendants in this case. As will be shown below, Plaintiffs have a high
likelihood of success on the merits of this civil rights case.
I. A TRO Without Notice under Rule 92.02(b) Was Appropriate Under the
Circumstances of this Case.
Missouri rules allow a party to seek a temporary restraining order without notice when
"notice would defeat the purpose of the order." Plaintiffs sought a temporary restraining order
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without notice because they reasonably believed that the Defendants, upon receipt of notice of
the motion for temporary restraining order, would begin to issue permits related to the project.
The verified petition demonstrates facts that the Defendants had already gone to great lengths to
support the project, despite the agreed upon absence of appropriate infrastructure to serve the
proposed use and two citizen petitions rejecting the bargain struck by the City Council to
facilitate this student housing development. Upon receipt of notice of the TRO, the proponents of
the proposed development sought to intervene in this case, and marshalled more evidence of the
City's intent to issue permits in violation of the Plaintiffs' rights. Notably, the Defendants have
not yet come to this Court and argued otherwise. Indeed, as described in the Plaintiffs' Motion
for Sanctions against the Defendants, despite the entry of a temporary restraining order, the
Defendants continued to facilitate the development despite this Court's Temporary Restraining
Order. It is clear from the conduct of the Defendants that this case presents the rare
circumstances where a TRO without notice was warranted.
Proposed Intervenors suggest that the use of Rule 92.02(b) was also improper because
HSRE-ODC II MIZZOU, LLC's ownership of the real estate was a matter of public record prior
to the filing of this lawsuit. Neither Plaintiffs nor their counsel knew or could have reasonably
anticipated that a foreign corporation that did not exist until June 2014 would file for a license to
transact business in Missouri on July 30, 2014 and then become the entity to purchase the real
property at issue in this case one week later. If anything, this suggests that the Proposed
Intervenors, acting in concert with the Defendants, were trying to obscure the progress of this
development from the purview of the public until they could issue permits that would entitle the
development to proceed without regard for the rights of the Plaintiffs. Again, these are the exact
circumstances where a no-notice TRO is appropriate.
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II. The TRO Should Not Be Dissolved Because the Plaintiffs have a High
Probability of Success on the Merits.
Plaintiffs and Proposed Intervenors agree on the four elements required to sustain
preliminary injunctive relief or a temporary restraining order: (1) likelihood of success on the
merits; (2) the threat of irreparable harm absent the injunction; (3) the balance of harms to the
Plaintiff and others from issuing the injunction; and (4) the public interest. What Proposed
Intervenors completely misunderstand, however, is the nature of the plaintiffs' claims in this
case. This is a civil rights case alleging violations of rights protected by the Columbia City
Charter, the Missouri Constitution, and the Constitution of the United States.
(a) In Civil Rights Cases, Likelihood of Success on the Merits is the
Determining Factor in Whether an Injunction or Temporary
Restraining Order Should Issue.
"It is well-settled law that a loss of First Amendment freedoms, for even minimal periods
of time, unquestionably constitutes irreparable injury." Phelps-Roper v. Nixon, 545 F.3d 685,
690 (8th Cir. 2008) (internal quotations omitted), overruled on other grounds by Phelps-Roper v.
City of Manchester, 697 F.3d 678 (8th Cir. 2012). If Plaintiffs can establish a sufficient
likelihood of success on the merits of their civil rights claim, they will also have established
irreparable harm. See id. "Likewise, the determination of where the public interest lies also is
dependent on the determination of the likelihood of success on the merits of the First
Amendment challenge because it is always in the public interest to protect constitutional rights."
Id. "The balance of equities, too, generally favors the constitutionally-protected freedom of
expression. In a First Amendment case, therefore, the likelihood of success on the merits is often
the determining factor in whether a preliminary injunction should issue." Id.
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(b) Plaintiffs' Rights under the Columbia City Charter, the Missouri and
U.S. Constitution Have Been Violated by the Defendants.
The Plaintiffs' claims are not difficult to understand, and the material facts will not be in
dispute. Columbia does not have infrastructure available to serve the proposed use for this
student housing project, and the City Council passed an ordinance necessary to facilitate the
development and obligate the City to provide the utilities. Plaintiffs exercised their rights to
repeal this ordinance. Under the Columbia City Charter, once an ordinance has been repealed by
referendum, its subject matter cannot be reconsidered by the Council for at least six months,
except by unanimous vote. Columbia Charter § 135. In response to the first repeal petition, and
while it was still being processed, the Defendants improperly and unlawfully proposed a second
ordinance in an effort to facilitate this development. This is the first violation of the Plaintiffs'
rights.
Although the Plaintiffs should not have had to consider the subject matter of the repealed
Bill 62-14 for another six months, the unlawful actions of Defendants required them to exercise
their rights to repeal ordinances passed by the City Council to facilitate this development a
second time. Defendants drafted the second ordinance, Bill 130-14, to discourage the exercise of
these rights, but the Plaintiffs and thousands of other citizens signed a petition demanding that
the second ordinance be repealed. While the second repeal petition was pending, the Defendants
continued to take action to facilitate this development that, by their own admission, needed
authorization from the City Council to proceed. The Plaintiffs, and thousands of other citizens,
twice exercised their rights to revoke that authorization through the repeal process established by
the City Charter, but the Defendants chose to ignore those rights and provide assurances to the
developer regarding the progress of this Development. Each assurance that the proposed
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Intervenor is now relying upon as a reason to dissolve the temporary restraining order was made
in direct violation of the rights of the Plaintiffs in this case.
Either these rights that the Plaintiffs are afforded under the Charter and Constitution are
meaningful and can be enforced, or they are a mere illusion. The Plaintiffs have now asked the
Court to declare and enforce their rights, and enjoin the Defendants from continuing to violate
them.
(c) Intervenors' Own Evidence Confirms That There Is Not Adequate
Infrastructure to Serve Their Proposed Use.
Contrary to the representations of the Proposed Intervenors in their motion to dissolve the
TRO, the City of Columbia does not have adequate infrastructure in place to support this student
housing complex at Eighth and Locust. In March 2014, the City and proposed Intervenor Opus
Development Company LLC expressly agreed as much: "Inadequate water, fire protection,
electric, storm water and sanitary sewer facilities exist to serve the proposed increase in use of
the Developer Tract which will result from project construction." Downs Aff. Ex. 1. Since March
2014, the City has made plans to finance certain improvements in these infrastructure capacities,
but none of those plans have even begun to be implemented. With respect to sanitary sewer
specifically, the evidence that Proposed Intervenors provided to the Court with their Motion to
Intervene highlights the inadequacies in the available infrastructure. Exhibit 9 to Mr. Downs's
affidavit is a report from the Public Works Department Sewer Utility Division regarding the state
of the sewer service connections and service lines serving the proposed site. Here is what the
report reveals about the sewer connections serving the site:
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The sewer service line, as opposed to the point of connection, is also in poor condition. As of
July 18, 2014, its condition was so faulty that the Sewer Utility Division could not even inspect
the line:

These inspection reports confirm what the City asserted and agreed in March – there is not
adequate sanitary sewer infrastructure in place to serve the proposed increase in use.
The centerpiece of the Proposed Intervenors' presentation regarding the so-called
adequacy of the infrastructure is a June 24, 2014 email from Defendant Matthes to the members
of the City Council. Downs Aff. Ex. 16.
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Defendant Matthes wrote this email five days after
Council had repealed Bill 62-14 authorizing the development agreement necessary to facilitate
this development. Defendant Matthes recognized in this email that "our system of governance
allows property owners to appeal to the City Council for permission to build," but Defendant
Matthes completely ignores that our system of governance allows the citizens to reject by
referendum any ordinance passed by the City Council. With respect to this development, that
happened twice, all before the Proposed Intervenors purchased the real estate, and before HSRE-
ODC II MIZZOU LLC was ever authorized to transact business in this state. Plaintiffs have
come to this Court seeking to enforce and vindicate those precious rights secured by the Charter
and the state and federal constitutions.

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It appears that First Ward Council Member Ginny Chadwick immediately forwarded Defendant Matthes' June 24
email to Opus Development Company attorney Robert Hollis upon receipt. Ms. Chadwick does not appear to have
forwarded this email to any of her constituents who had signed the petition to repeal Bill 62-14 or any other member
of the public. Downs Aff. Ex. 16.
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(d) In the Absence of a Development Agreement, the Project Cannot
Lawfully Proceed Until All Necessary Public Improvements are
Approved.
Proposed Intervenors contend that they may proceed with this project without the
development agreement that the Citizens have twice rejected. Section 22-75 of the Columbia
Code addresses development agreements, and what happens when they are and when they are
not entered into between the City and a property developer whose project requires additional
infrastructure capacity. Under 22-75(a) of the Columbia Code of Ordinances, the Council "may,
by ordinance, authorize the city manager to enter into agreements that require city contributions
toward the cost of public improvements to be constructed by developers or other persons. These
public improvements shall not be subject to the public improvement process set forth in this
chapter." (emphasis added). Without a development agreement, Section 22-75(b) requires that
the public improvements necessary to serve the development must be approved "in accordance
with the public improvement process set forth in this chapter." Sec. 22-75(b). The public
improvement process includes interested parties meetings, resolutions of necessity, public
hearings including the potential for special assessments, a bid call ordinance, and eventually
acceptance of the public improvement. See Sec. 22-71, Columbia Code ("Standard Public
Improvement Process"). No part of this standard public improvement process has been followed
with respect to the infrastructure improvements necessary to support this development. And the
necessary infrastructure improvements will not be in place before August 2015 when the
developer proposes to be occupied and flushing.
The few other developments that have been approved to proceed in this part of Columbia
since March (Lofts on Tenth Street, Collegiate Housing Partners) have each proceeded with a
development agreement between the developer and the City. On August 18, Defendant City will
consider another development agreement with American Campus Communities (ACC). If the
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City Council passes the ordinance authorizing the Development Agreement with ACC, the
citizens would have the right to repeal by referendum if they believe that the bargain struck by
the Development Agreement is not appropriate for the City of Columbia. Proposed Intervenors
point to no development with a similar infrastructure impact that has been allowed to proceed
without a development agreement. It is not a coincidence that the only one for which Defendants
are threatening to proceed is the one for which the Plaintiffs, and thousands of other citizens,
have submitted sufficient repeal petitions. The Defendants have taken the position that these
rights are not among those that they are bound to respect. This is why we have come to this
Court seeking redress, and why a temporary restraining order remains appropriate.
II. BOND AMOUNT SHOULD REMAIN LOW
The Court is afforded wide discretion in setting the amount of the bond required to
sustain the temporary restraining order. In cases involving constitutional violations, nominal
bonds such as the amount initially required are appropriate. Although Missouri state court rules
require a bond to support an injunction or temporary restraining order, in one first amendment
case in St. Louis, a federal judge did not require any bond to be posted: "Since there is no
substantial risk of monetary loss to the government by the grant of temporary injunctive relief
maintaining the status quo in this case, the court does not order Plaintiffs to submit security for
the relief." Sharpe Holdings v. United States HHS, 2012 US Dist. LEXIS 182942, at *19-*20
(E.D. Mo. Dec. 31, 2012). Likewise here, the named Defendants suffer no risk of financial harm
from the temporary injunctive relief requested.
Proposed Intervenors, meanwhile, have argued that Plaintiffs should be required to post a
bond in excess of $10 million to support this temporary restraining order. This request is patently
absurd. The temporary restraining order this Court entered on August 13 will expire by the terms
of Missouri Supreme Court Rule 92.02(b) in ten days. The Proposed Intervenors, by their own
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admission, do not anticipate receipt of any permits from the City of Columbia until August 25,
2014, after the expiration of the current temporary restraining order. Downs Aff. ¶ 13. Their
suggestion that these million dollar bonds should be required to sustain the temporary restraining
order Plaintiffs have sought is a bald attempt to bully the Plaintiffs into waiving their precious
rights to participate directly in this democracy, rights which are secured by the Columbia Charter
and the state and federal constitutions. Given the relatively short time period a restraining order
will be required, and the significance of the rights at stake for the Plaintiffs and every other
member of this community, a nominal bond remains appropriate.
Proposed Intervenors have known of the Plaintiffs' exercise of their rights since March
2014, and have chosen to proceed with their project in the face of the exercise of these rights. In
so doing, Proposed Intervenors have expressly assumed the risk of loss. It would not be equitable
for this Court to require Plaintiffs to absorb the Proposed Intervenors' risky financial decisions in
its decision about the bond amount. In acknowledgement of the short period of time that the
temporary restraining order will be in effect, this Court should exercise its discretion to maintain
the bond at a nominal amount to protect the Plaintiffs' rights.
CONCLUSION
For the reasons set forth above, the Proposed Intervenors' Motion to Dissolve the TRO
should be denied.
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
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(573)636-6231 (fax)
Jeremy.root@stinsonleonard.com

HOLDER SUSAN SLUSHER
OXENHANDLER

Josh Oxenhandler, No. 51645
107 N. Seventh Street
Columbia, MO 65201
Oxenhandler@gmail.com


ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was served upon the Defendants via email to Nancy
Thompson, City Counselor, at njthomps@gocolumbiamo.com on August 18, 2014.

A copy of the above was served upon Tom Harrison, counsel for the Proposed Intervenors, via
email at tom@vanmatre.com on August 18, 2014.

/s/ Jeremy A. Root

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