1. Plaintiffs incorporate and adopt by reference each and every allegation
in paragraphs 1 through 25 inclusive of Count I, and paragraphs 1 through 6
inclusive in Count II with the same force and effect as if more fully set
out herein.
2. The equitable estoppel doctrine is applicable to municipalities
where the governmental entity, by its positive action, has caused a party
to rely upon or change its position to his detriment.
3. The equitable estoppel doctrine is used to estop a municipality when
it is necessary to prevent fraud, injustice or other consequences resulting
from the municipality s bad faith actions.
4. Application of the equitable estoppel doctrine to prohibit
Defendants from denying Plaintiffs respective applications would not
interfere with the proper exercise of governmental functions, but would
actually promote the proper exercise and execution of the Comprehensive
Plan and the Zoning Regulations, thereby promoting the general welfare of
the City of Manhattan.
5. The City of Manhattan, by its positive act of adopting the
Comprehensive Plan, established a basis for future growth and development
(including rezoning), provided a foundation for all land use regulations
by the City and establishes a context within which individual development
proposals can be evaluated, and, specifically, established in the
Comprehensive Plan that the individual properties owned by Plaintiffs are
to be developed (and rezoned) as commercial to meet commercial retail
needs within the City.
6. The Comprehensive Plan was adopted by the City of Manhattan based upon
various studies and analyses of population growth, housing needs,
economics, health, safety, transportation, and numerous other factors which
comprise the scope of such a Comprehensive Plan.
7. The Comprehensive Plan and its Land Use Element, which have been in
effect from the initial dates of Plaintiffs respective ownership interests
in the subject properties, were initiated by the City of Manhattan.
8. In 1961, the City of Manhattan Comprehensive Land Use Plan designated
the Property, Exaction Parcels and Abutting Parcels as a neighborhood
shopping area for future development.
9. In 1985, the Manhattan Planning Board unanimously approved the
Wal-Mart PUD for a store with up to 84,000 square feet . On September 16,
1986 the governing body of the City of Manhattan approved the Wal-Mart
proposal after being told that the next request is most probably a
free-standing food store on a 6-acre tract. which adjoins the 9 acre
Wal-Mart PUD. This Wal-Mart PUD was conditioned upon the improvement of
Seth Child Road to a 4 lane highway.
10. In 1991, the Planning Board and City Commission adopted new Land Use
Plan. The 1991 Land Use Plan changed the designation of the Property,
Exaction Parcels and Abutting Parcels to General Commercial . This new
designation is a change from Neighborhood Center of the 1961 Land Use Plan
and done with full understanding that Wal-Mart was zoned for a large store
at that site.
11. In 1989, the City of Manhattan applied for $13,000,000 from the Kansas
Department of Transportation for improvement of Seth Child Road from a two
lane road to a four lane road with protected turn lanes to accommodate the
Wal-Mart PUD at this site. The City of Manhattan supported its application
for State funding with a study it commissioned by DPRA, a Manhattan based
research firm. The DPRA study states, Over time, the access and
convenience is expected to cause additional economic development in the
immediate area .... the most significant of these will probably be one or
two large discount stores (K-Mart, Target, Venture, Wal-Mart, etc.) with
associated smaller stores.
12. In 1994-95, the Manhattan City Commission approved relocation of Shuss
Road and construction of a new intersection with Seth Child road in order
to accommodate the development of a large retail shopping center. Total
cost of the new road and intersection is paid solely by the Plaintiffs. The
projected cost of the intersection is $173,000.
13. Plaintiffs acquired their respective ownership interests in the
subject properties, proceeded with the development process, and
consequently made substantial monetary expenditures for relocation of Shuss
Road, surveys, plans, designs, and legal representation in accordance with
the Comprehensive Plan and the corresponding Zoning Regulations, and in
rightful and justifiable reliance upon the actions of the City as set forth
in paragraphs 6 through 12 above.
14. Based upon the express representations and actions of the City of
Manhattan, Plaintiffs rightfully and justifiably relied upon same, and
would now be prejudiced if the Defendant was permitted to deny Plaintiffs
respective applications.
15. The City of Manhattan unjustifiably and unreasonably denied Plaintiffs
Rezoning Applications.
16. Plaintiffs each suffered injury due to unreasonably delay and bad
faith actions on behalf of defendants, and incurred expenses and suffered
damages in excess of $75,000.00.
17. Plaintiffs have suffered irreparable harm, have no adequate remedy at
law and are entitled to injunctive and declaratory relief.
18. Defendants should be estopped from denying Plaintiffs respective
rezoning and other applications, and should otherwise be precluded from
asserting positions, attitudes or courses of conduct inconsistent with
promises made and expectations created by its actions.
WHEREFORE, in Count III Plaintiffs request this Court to place Plaintiffs
in the same positions as if what Plaintiffs justifiably relied upon were
true, and to enjoin Defendants from denying Plaintiffs respective rezoning
applications, and to affirmatively order that Plaintiffs zoning
applications and site plans be approved by defendant City, and to award
damages for each Plaintiff in excess of $75,000, and for such other relief
as this Court deems just. COUNT IV INVERSE CONDEMNATION
1. Plaintiffs adopt, reallege and incorporate by reference each and every
allegation in paragraphs 1 through 25 inclusive in Count I, and paragraphs
1 through 6 in Count II, and paragraphs 1 through 18 of Count III of this
Petition with the same force and effect as if more fully set out herein.
2. Defendant City s refusal to approve the Rezoning Application and the
retention of the existing zoning on the Property has denied Plaintiffs all
or substantially all economically viable use of the Property, and denied
Plaintiffs their reasonable investment-backed expectations, and, therefore,
has effected a taking and damaging of the Property without the payment of
just compensation in violation of Section 18 of the Bill of Rights of the
Kansas Constitution, and K.S.A. 26-510 et seq., and specifically K.S.A.
26-513, from August 26, 1999 until such time as the decision denying the
Rezoning Application is declared void and the Rezoning Application (and
Preliminary Development Plan) is granted and approved.
3. The City s arbitrary and unreasonable refusal to approve the Rezoning
Application and the retention of the existing zoning on the Property, which
was done under color of State law, customs, usages and ordinances of the
City, is a violation of Plaintiffs rights, privileges and immunities as
guaranteed by law.
4. As a direct and proximate result of the actions of defendant City
denying the Rezoning Application, Plaintiffs property has been taken and/or
damaged in an amount which they are unable to state at this time but which
exceeds $75,000.
WHEREFORE, in Count IV Plaintiffs pray judgment against defendant City: (a)
Finding and declaring that the City s denial of the Rezoning Application
and the retention of the existing zoning on the Property is arbitrary,
capricious, and unreasonable under K.S.A. 12-760;
(b) Finding and declaring that the City s denial of the Rezoning
Application and the retention of the existing zoning on the Property is
arbitrary, capricious and unreasonable in violation of due process clauses
under Sections 1, 2 and 18 of the Bill of Rights of the Kansas
Constitution;
(c) Finding and declaring that defendant s denial of the Rezoning
Application and the retention of the existing zoning on the Property has
effected a taking and damaging of Plaintiffs property without just
compensation in violation of Section 18 of the Kansas Bill of Rights of the
Kansas Constitution, and K.S.A. 26-501 et seq., and specifically K.S.A.
26-513, from August 26, 1999 until such time as the decision denying the
Rezoning Application is declared void and the Rezoning Application is
granted.
(d) Finding and declaring the refusal to approve the Rezoning Application
and the retention of the existing zoning on the Property is
unconstitutional in that it does not promote the health, safety, and
general welfare of the citizens of Manhattan, Kansas
(e) Awarding Plaintiffs such compensation and damages from the City as
will compensate Plaintiffs for the City s violation of their constitutional
and statutory rights as set forth above, and said compensation and damages
are in excess of $75,000;
(f) Ordering the City of Manhattan to approve Plaintiffs Rezoning
Application and Preliminary Development Plan; and, upon proper application,
to approve building and other permits as are necessary to construct the
proposed development for the Property;
(g) Awarding Plaintiffs reasonable attorneys fees and costs, pre- and
post-judgment interest under Kansas law; and
(h) For such other, further and additional relief as this Court may deem
just and proper.
RESERVATION OF ALL FEDERAL CLAIMS Pursuant to the Jennings-Fields
reservation based on the decisions in Front Royal v. Town of Front Royal,
Va., 135 F.3d 275, 283 (4th Cir. 1998), Jennings v. Caddo Parish Sch. Bd.,
531 F.2d 1331, 1332 (5th Cir.), cert. denied, 429 U.S. 897 (1976), and
Fields v. Sarasota-Manatee Airport Auth., 953 F.2d 1299, 1303-1309 (11th
Cir. 1992)), Plaintiffs James L. Johns and B. June Johns and Manhattan
Project, L.L.C., hereby preserve the right to go to federal court to
litigate all currently existing federal claims of every kind or description
by reserving such federal claims to be litigated in federal court upon the
completion of the state court action. Plaintiffs James L. Johns and B.
June Johns and Manhattan Project, L.L.C., hereby reserve on the state
record their intent to litigate any and all such federal claims in federal
court.
KNOPP AND BANNISTER, LLP By: Joseph A. Knopp 620 Humboldt Street P.O. Box
369 Manhattan, Kansas 66502 Telephone: (785) 776-9288 Facsimile: (785)
776-5792
ATTORNEYS FOR PLAINTIFFS JAMES L. JOHNS AND B. JUNE JOHNS
FREILICH, LEITNER & CARLISLE By: Richard G. Carlisle 4600 Madison, Suite
1000 Kansas City, MO 64112-3012 Telephone: (816) 561-4414 Facsimile: (816)
561-7931
ATTORNEYS FOR PLAINTIFF MANHATTAN PROJECT, L.L.C.; and GOTTLIEB CORPORATION
DEMAND FOR JURY TRIAL
Plaintiffs demand a trial by jury on all issues triable by a jury.
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