The Joplin Globe, Joplin, MO

Joplin Metro

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October 10, 2008

Dispute between developer, city moves to federal court

By Derek Spellman

dspellman@joplinglobe.com

A lawsuit brought by a subdivision developer against the city of Joplin is now in federal court.

Modern Age Builders and developer John Smith originally filed suit against the city on Sept. 18 in Jasper County Circuit Court. The city’s attorney in the matter, Karl Blanchard Jr., on Thursday filed to move the suit into federal court on grounds that the allegations made the case a federal suit.

Modern Age Builders and Smith are alleging the city violated both the 14th and Fifth amendments when it required them to extend a water main for the development of Hidden Hills Subdivision in September 2005. The city, according to the complaint, indicated the developers would have to increase water flow to the subdivision in accordance with International Fire Code provisions.

But the plaintiffs contend the city had not adopted those code provisions and thus effectively required them to comply with regulations that were not in effect as a condition of city approval. The developers meanwhile incurred the expense of $300,000 to extend the water main to the property, which ultimately created water-pressure rates that were too high for the homes in the subdivision and needed pressure regulators to be installed to reduce the pressure. The required water-main extension also delayed the development of the property, resulting in lost income and profits, according to the suit.

The developers further contend that the developers of other, nearby properties “reaped the benefits of the water-main extension without sharing in any of the costs of the extension,” according to the petition. The petition did not specify which developers.

A phone message left for Modern Age Builders on Friday was not returned. A message left for Randy Reichard, a Springfield attorney representing both Modern Age Builders and John Smith, also was not returned Friday.

Blanchard on Friday said that he intended to file a response to the petition. Beyond that, he said he could not comment on the case at this time.

Modern Age Builders and Smith are seeking damages that are still to be determined, along with attorneys’ fees and costs.

The federal lawsuit marks the second time in several years that the Hidden Hills subdivision, at Highlander and Ridgeview drives, has been the subject of litigation.

When the developers were first seeking city approval of a proposed subdivision plat in November 2005, the City Council withheld that approval partly because of concerns that the existing water mains in the area would not supply enough water to conform to the city's fire codes. The developers then petitioned the Newton County Circuit Court in December 2005 for a judicial review of the city’s decision.

As that case was still pending, and after the installation of the water main that is now at the heart of the current lawsuit, the developers again sought city approval of the proposed plat in March 2006. The City Council rejected that plat after residents from a neighboring subdivision voiced concerns about the safety and traffic problems the development would pose.

The city and the developers settled the Newton County lawsuit in May 2006. As a condition of that settlement, the city agreed to approve the plat, while the two sides agreed to bear their own costs, attorney fees and expenses incurred by the suit. The City Council formally approved the plat in June.



Constitution

The allegations raised in the lawsuit brought by Modern Age Builders and developer John Smith partly turn on the city’s alleged violation of the Equal Protection Clause of the U.S. Constitution, which bars states from “depriving any person of life, liberty, or property, without due process of law.”

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