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Peterson v. Madson

United States District Court, W.D. Missouri, Central Division

December 29, 2017

MARSHALL LAWRENCE PETERSON, Plaintiff,
v.
WILLIAM MADSON, et al., Defendants.

          ORDER

          NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE.

         Defendants Camden County Commission and Commissioners Greg Hasty, Beverly Thomas, and Don Williams move to dismiss Counts II and III of the First Amended Petition. Doc. 90. Plaintiff Peterson moves for leave to file a Second Amended Petition. Docs. 101 and 101-1. The motion to dismiss is granted. The motion for leave to amend is denied.

         I. Background

         As relevant to Counts II and III, Peterson alleges in the First Amended Petition that the Camden County Commission has statutory authority to vacate roadways pursuant to Mo. Rev. Stat. § 71.270.1. Doc. 54, p. 8, ¶ 33. The statute provides that upon petition, the Commission may vacate a roadway marked on a subdivision's recorded plat. Id. Notice of hearing on the petition must be published in the local newspaper at least 15 days prior to presentation of the petition to the Commission. § 71.270.1-.2. The Commission may enter an order vacating the roadway “[i]f no person interested in [the] subdivision shall appear and show cause why” the roadway should not be vacated. § 71.270.3. An order vacating a roadway shall be filed with the office of the county recorder if requested by the Commission. § 71.270.4.

         In 2004, a petition was filed with the Camden County Commission, to vacate a roadway in the Purvis View subdivision, which has a recorded plat. Notice of public hearing on the petition was published in the local newspaper on December 15, 2004. A public hearing was held on January 3, 2005 and no interested person appeared in opposition to the petition. Camden County Commissioners Carol Loraine, Beverly Thomas, and Thomas Gumm granted the petition and issued an order vacating the roadway on January 4, 2005. The order was certified by the County Clerk and filed with the Recorder of Deeds the same day.

         Peterson bought property in the Purvis View subdivision in May 2015. Doc. 54-1 (Warranty Deed).

         In Count II of the First Amended Petition, Peterson asks the Court to find that the Commission's 2005 order is void because sufficient notice of the petition was not given; § 71.270 did not authorize the roadway at issue to be vacated; and the Camden County Commission did not follow notice procedures provided under the Missouri Administrative Procedures Act.

         In Count III, Peterson asks that the Camden County Defendants be ordered to follow Mo. Rev. Stat. §536.067, which provides for notice in proceedings for review of contested administrative proceedings.

         Peterson moves for leave to file his proposed Second Amended Petition to:

• substitute “Camden County” for the “Camden County Commission”;
• add Camden County Commissioners Carol Loraine and Thomas Gumm as defendants in their individual capacities;
• replace Count III with an amended Count III seeking declaratory and injunctive relief, and new Counts IV and V seeking damages; and
• substitute “Union Electric Company d/b/a Ameren Missouri” for “Union Electric Company d/b/a AmerenUE” and, in the caption of the pleading, move Union Electric from the section listing the ...

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