STATE OF MICHIGAN. Case No.: 14- CZ. Hon.

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1 STATE OF MICHIGAN IN THE CIRCUIT COURT FOR THE COUNTY OF INGHAM LANSING RETAIL CENTER, LLC, V Plaintiff, Case No.: 14- CZ Hon. CITY OF LANSING, Defendant. Michael H. Perry (P22890) Thaddeus E. Morgan (P473 94) Fraser Trebilcock Attorneys for Plaintiff 124 W. Allegan, Suite 1000 Lansing, Michigan Telephone: (51 7) Fax: (517) VERIFIED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF, REQUEST FOR TEMPORARY RESTRAINING ORDER, AND MOTION FOR AN ORDER TO SHOW CAUSE NOW COMES Plaintiff, Lansing Retail Center, LLC, by and through its attorneys, Fraser Trebilcock, and for its Complaint for Enjunctive and Declaratory Relief and an Ex Parte Motion for an Order to Show Cause, states: NATURE OF THE ACTION Plaintiff Lansing Retail Center, LLC, the owner of the Frandor Shopping Center, seeks injunctive and declaratory relief regarding a proposed project on the Montgomery Drain, a portion of which is located on the Plaintiffs property. The City has scheduled a public J, hearing on the project for April 7, 2014, at which the City will determine to tile a petition

2 with the lngham County Drain Commissioner to proceed with the project which includes the construction of the foundations for a private developer s buildings on property located at Red Cedar Park and currently owned by the City. The Court should enjoin the City from conducting the hearing and tiling the Petition because the Ingham County Drain Commissioner has determined that other public corporations will be subject to assessments for the drain project and in that instance a petition must be signed by two or more of those public corporations rather than merely by the City. The City also has a conflict of interest because it is the party which will make the special assessment against the Plaintiff and other landowners when at the same time the City owns the property which will be benefited by the drain project. The City also plans to underwrite the developer s construction costs as part of the drain project which is neither fair nor just to the Plaintiff and all other property owners. Parties, Jurisdiction and Venue 1. The Plaintiff Lansing Retail Center, LLC ( Lansing Retail Center ): a. Is a Michigan limited liability company. b. Has its principal place of business in the City of Lansing, lngham County, Michigan. c. Owns the retail shopping center commonly known as Frandor within the Montgomery Drain Drainage District. d. Has paid the City of Lansing more than $14 million in property taxes since it redeveloped Frandor in e. On or about March 26, 2014 received from the Defendant City of Lansing ( City ) a notice of a public meeting to be held on Monday, April 7, 2014 at 7:00 p.m. in regard to a proposed drain project on the Montgomery Drain located within the Montgomery Drain district ( Landowner Notice ). A copy of the Landowner Notice is attached to this Complaint as Exhibit 1.

3 2. The Defendant City of Lansing ( City ): a. Is a Michigan municipal corporation. b. Is located in lngham County, Michigan. c. Is a that phrase the Michigan Drain Code, being MCL (b). public corporation as is defined in section 46 1(b) of d. e. Includes within its boundaries the Nontgomery Drain, the route and course of which Exhibit On or about N is described in the Plaintiff and the other owners of real property located within the Montgomery Drain Drainage arch 25, mailed District, including the Plaintiff, MCL which is a as 2. to notice of intent to tile section 463 of the drain code and a petition under known notified said real property owners who are proposed to be liable for an assessment of the proposed drain project of Monday, April 7, a public hearing on 2014 at the Lansing City Council chambers. An accurate and authentic copy of the Defendant s notice of the public attached meeting is to this Complaint as Exhibit I The description of the route and course of the Montgomery Drain is contained within Exhibit 2. This Drain Lansing, and Lansing Township (Exhibit is located in the City of Lansing, City of East 2, p. 1). The Plaintiff Lansing Retail Center, LLC seeks injunction arising out of and pertaining to the Defendant City s forthcoming April 7, a declaratory judgment and an 2014 public hearing and petition regarding the Montgomery Drain Project and the determination to include within the Montgomery Drain Project a subsidy for the construction of the foundations and infrastructure for private developer s buildings and the assessment of the Plaintiff and other landowners within the Montgomery Drain Drainage District for that subsidy. The Circuit Court has subject matter jurisdiction of this Complaint. a 5. Ingham County is the proper venue for this action. CoMMoN FACTUAL ALLEGATIONS 6. The Plaintiff adopts and incorporates by reference fully set forth herein. 1-5 above, as though 7. The City also owns the Red Cedar Park which includes, among other things, the former Red Cedar Golf Course.

4 S. The Red Cedar Park is located within the Montgomery Drain Drainage District ( Drainage District ). 9. The Montgomery Drain Drainage District ( Drainage District 1): a. Is a drainage district as that term is defined in section 5 of Michigan s Drain Code, being MCL b. Is located within the cities of Lansing and East Lansing, Lansing Township and Ingham County, Michigan. 10. The Montgomery Drain Drainage Board ( Drainage Board ): a. Has jurisdiction over and governs the affairs of the Montgomery Drain Drainage District. b. Is responsible for the operation and maintenance of the Montgomery Drain. c. Historically, by and through its chairperson the lngham County Drain Commissioner has stated that it is necessary to undertake certain drain improvement projects in connection with the Montgomery Drain to address tlooding and other drainage issues allegedly arising from storm water runoff from Frandor and adjacent properties. 11. Notwithstanding the lngham County Drain Commissioner statements about the need to undertake certain improvements to the Montgomery Drain, nothing has been done to date to address those concerns over the past decade. 12. The City is now seeking to redevelop the Red Cedar Park. The City s redevelopment project has been commonly referred to as the Park Project. It has also become known as the Red Cedar Renaissance. For purposes of this Complaint, this project is known as the Ferguson Development. 13. The Red Cedar Park is located within a flood plain. It is not buildable in its current condition. For example, on or about March 31, 2014 it had a substantial amount of standing water (and wildlife) upon it (Exhibits 9-12). 14. The lngham County Drain Commissioner has in recent months asserted that a multi-million dollar drain improvement project with respect to the Montgomery Drain is necessary to allow for the development of Red Cedar Park for the Ferguson Development. 15. The Plaintiff believes that this proposed multi-million dollar drain improvement project will include, among other things, such activities as: 4

5 a. The removal and disposal of tens of thousands of cubic yards of watersaturated soil. b. The transportation and importation of tens of thousands of stabilizing soil. c. Massive on-site grading. d. The construction of on-site and off-site extensions of sanitary sewer lines. e, On-site and/or off-site flood plain alterations. f Wetland relocation and mitigation. g. Storm water holding tanks or other structures also known as pliths which will serve as the foundation or support for one or more of the buildings in the Ferguson Development. h. Construction of roads that will serve as permanent roads and road bases in the Ferguson Development. 16. In conjunction with the City s quest to redevelop the Red Cedar Park, the Defendant City intends to request the lngham County Drain Commissioner to undertake a proposed drain project on the Montgomery Drain which, although not specified in the Landowner Notice (or in the Notice of Intent to File a Petition described in paragraph 27 and 29, below), will involve the cleaning out, relocating, widening, deepening, straightening, tiling, extending, addition of branches, adding lands, relocation along a highway and/or installing devices to purify the flow of the drain ( proposed drain project ) (Exhibit 1). However, as described in 15, above, the Plaintiff understands and believes that the multi-million dollar drain improvement project will include substantially more activities than those generically described in Exhibit The City has selected FergusonlContinental Lansing LLC ( Ferguson ), the principals of which are Mr. Joel Ferguson and Mr. Franklin Kass, as the developer of the Park Project. 18. The City has not yet sold the Red Cedar Park to Ferguson, but intends to sell - the Red Cedar Park to Ferguson for the construction of the multi-million dollar Ferguson Development to he owned by Ferguson and/or others, but not including the City. 19. It has been publicly reported that the Montgomery Drain Project will be one of the largest, if not the largest. drain project ever undertaken in the greater Lansing area and that its cost may be as high as S50 to S70 million.

6 Upon the Plaintiffs information and belief, the multi-million dollar \ 1ontgomer Drain Project may be undertaken and performed by various contractors and subcontractors without competitive bidding. Even though the City still owns the Red Cedar Park. upon the Plaintiffs information and belief the City has been engaged in discussions with Ferguson the scope of the Ferguson s Development including, without limitation, requirements of the andor one or more of its subcontractors in regard lngham County Drain Commissioner, the Drainage District and the Drainage Board for the Ferguson Development On or about January the time was partnering entity which at 15, 2013, an was sent to one of the principals of the in to the proposed Red Cedar Park development, stating that the City would grant the Drain Commissioner s office the authority to move forward with the plan that would potentially save millions in construction costs relating to the expense of constructing building foundations within [Red Cedar Parki and that a portion of the savings would then be paid back to the City by the development. (Exhibit 3) (emphasis added). 23. The City intends to assess the landowners within the Montgomery Drain Drainage District, including the Plaintiff for their respective pro rata share of the costs of the proposed drain project including the amount of the City s subsidy of the cost of constructing the foundations andlor related infrastructure for the Ferguson Development (including the tasks described in 14, above) (Exhibit 1). - project On or about October 16, 2013, the City and the Montgomery Drain Drainage District entered into an Agreement Practicability, Environmental Assessment or Impact Studies Which Will Help to Facilitate and Finance Feasibility, Determine the Scope, Preliminary Design and Project Costs of Proposed Montgomery Drain Improvements within the Montgomery Drain ( Feasibility Agreement ). An unexecuted copy of the Feasibility Agreement (including the City s cover letter regarding the same) is attached hereto as Exhibit 4. Also, upon the Plaintiffs information and belief, the Defendant has the executed copies of the Feasibility Agreement within its possession. The Feasibility Agreement provides that the feasibility study of the proposed drain project would or could cost 5260,000 (Exhibit 4, p. 2). Upon the Plaintiffs information and belief, the analysis of the proposed drain included, among other things. the proposed design and construction of the foundations ( pliths ) for the buildings to be constructed and owned by Ferguson, the infrastructure related to and/or associated with one or more of the buildings to be constructed and owned by Ferguson and the host of the development and construction activities described in 15, above. 6

7 27. En connection with the analysis of the proposed drain project. the lngham County Drain Commissioner has advised the City in regard to the Petition Process for Montgomery Drain. In this regard, the Drain Commissioner has provided the City with a memorandum which outlines the Drain Commissioners suggested 21 steps which pertain to the process for the proposed drain project. An accurate and authentic copy of the Drain Commissioner s Petition Process for iontgomery Drain memorandum ( Petition Process ) is attached to this Complaint as Exhibit On February 24, 2014, the City, through its City Council, adopted Resolution No ( February, 2014 Resolution ). An accurate and authentic copy of the Lansing City Council s February 24, 2014 meeting minutes, including the February, 2014 Resolution, is attached hereto as Exhibit The February, 2014 Resolution states that the City may be subject to assessment to pay for a percentage of the costs of the proposed drain project and that lands within the City may be especially benetited by the proposed drain project so that it intends to levy a special assessment, fee or charge against those especially benefited properties under section 490 of the Michigan Drain Code, being MCL (Exhibit 6, p. 3). 30. The February, 2014 Resolution also directs the City Clerk to forward to the lngham County Drain Commissioner a copy of the resolution and the City s Notice of Intent to File Petition under section 463 of the Michigan Drain Code, which is MCL (Exhibit 6, p. 3) ( Notice of Intent to File a Petition ). 31. The February, 2014 Resolution also said that the City would notice and the City Council would conduct a meeting to hear objections to the proposed drain project or special assessment, ostensibly in compliance with section 489a of the Michigan Drain Code, being MCL a (Exhibit 6, p. 3). The February, 2014 Resolution directs the City Clerk to bring the matter back before the City Council following the meeting. 32. Upon the Plaintiffs information and belief, in accordance with the February, 2014 Resolution, the City Clerk sent via registered mail a copy of that resolution and the Notice of Intent to File a Petition to the lngham County Drain Commissioner. The Defendant has the original and/or a copy of each document. I - 0 i 3. The Ingham County Drain Commissioner has delineated a proposed drainage district for the proposed drain project which will affect areas located within the - City of Lansing, the City of East Lansing and Lansing Township. A map of the proposed drainage district for the proposed drain project is attached as page 2 to the Landowner Notice, a copy of which is attached hereto as Exhibit 1. -7

8 34. The City intends to levy a special assessment, fee or charge on the benefited lands. including the real property owned by the Plaintiff, ostensibly in accordance with MCL (Exhibit 6. P. 27 and Exhibit 7. p. 1). 35. Upon the Plaintiffs information and belief, the City has determined and/or is in the process of determining a proposed plan for the tinancing of the proposed drain project. However, the City has not yet presented its proposed financing plan to the public. 36. Upon the Plaintiffs information and belief, the City s proposed financing plan includes, among other things, a provision for the payment of the development and construction costs for the foundations and/or related infrastructure to be constructed by Ferguson, including one or more of the development and construction activities described in 15, above, following Ferguson s acquisition of the Red Cedar Park for the Ferguson Development. 37. On March 24, 2014, the City, through the Lansing City Council, adopted a resolution pursuant to which it determined that the Lansing City Clerk would send notice of a public hearing to be conducted by the Lansing City Council on Monday, April 7, 2014 at 7:00 p.m....to hear objections to the proposed project; to receive information from the public on the advisability of proceeding with the proposed Drain Project; and to hear objections to the special assessment, fee or charge to be levied against land in the City especially benefited by the project. 38. A draft of the City of Lansing City Council s proposed resolution which was adopted on March 24, 2014 is attached hereto as Exhibit 7 ( March, 2014 Resolution ). Upon the Plaintiffs information and belief, the actual resolution adopted by the Defendant City Council is identical to Exhibit 7 without the word draft. 39. On about March 25, 2014, the Defendant City of Lansing s clerk mailed notice of the public meeting ( Landowner s Notice ) to landowners within the proposed Montgomery Drain Drainage District. A copy of that notice is attached to this Complaint as Exhibit On March 26, 2014, the Plaintiff, as a landowner within the proposed Montgomery Drain Drainage District, received a copy of the Landowner s Notice (Exhibit I). 41. To date, the City has pertormed steps 1-6 of the Ingham County Drain - Commissioner s suggested Petition Process. (Exhibit 5. pp. 1-2), J 42. The April 7, 2014 public meeting is step 7 in the lngham County Drain Commissioner s suggested petition process for the Montgomery Drain (Exhibit 5p.2). S

9 43. The tiling of a petition with the lngharn County Drain Commissioner is Step 8 identified in the lngham County Drain Commissioner s suggested petition process for the Montgomery Drain (Exhibit 5, p. 2). 44. The [ngham County Drain Commissioner has determined that the City of Lansing. City of East Lansing, Lansing Township, MDOT, and Ingham County (as to roads) are the public corporations which shall be subject to assessment for the Montgomery Drain Project (Exhibit 4 - Petition Process, p. 1). 45. Neither the City of East Lansing, Lansing Township, MDOT, nor lngham County has filed a Notice of Intent with the Ingham County Drain Commissioner regarding the drain project pursuant to MCL a(l)(a). 46. At or about the time that the Ingham County Drain Commissioner gave his suggested Petition Process to the City (Exhibit 5), the Ingham County Drain Commissioner also gave the City his recommended form for a Petition for the City to use to request the lngham County Drain Commissioner to undertake the Montgomery Drain Project (Exhibit 8). 47. Even though the Ingham County Drain Commissioner has determined that the City of Lansing, City of East Lansing, Lansing Township, MDOT and Tngham County (as to roads) shall be subject to the assessment for the Montgomery Drain Project, (Exhibit 4, p. 1) the Ingham County Drain Commissioner s recommended petition provides that only the City of Lansing will sign the Petition, contrary to MCL (2) and (4). (Exhibit 8, p. 2). COUNT I INJUNCTION OF PREMATURE PUBLIC MEETING AND SOLITARY FILING OF SECTION 463 PETITION WITH THE INGHAM COUNTY DRAIN COMMISSIONER 48. The Plaintiff adopts and incorporates by reference J 1-47 above, as though fully set forth herein. 49. The City intends to tile a petition with the Ingham County Drain Commissioner for the Montgomery Drain Project pursuant to MCL (Exhibit I). 50. There are more than two public corporations which shall be subject to the special assessments for the Montgomery Drain Project, i.e., City of Lansing, - City of East Lansing, Lansing Township, Michigan Department of Transportation and Ingham County. 11 9

10 51. MCL (2) requires that where there are two or more public corporations which shall be subject to assessment for a drain project, at least two of those public corporations must sign the petition. 52. There are two ways in which a public corporation which shall be subject to an assessment for a drain project may sign and tile a petition with a drain commissioner: a. If the legislative body of a public corporation determines that the drain project will necessitate the levy of a special assessment, fee or charge under MCL , the public corporations legislative body must proceed in accordance with MCL 280.4S9a as described below. MCL (1). b. If a public corporations legislative body determines that it will absorb the costs of the drain project and will not levy a special assessment fee or charge under MCL , the public corporation may simply tile a petition with the county drain commissioner without undertaking the steps prescribed by MCL a(1)-(3) and Exhibit 5, p MCL a(l) provides that before the legislative body of each public corporation subject to assessment for a drain project elects to levy a special assessment, fee or charge for any drain project upon individual property owners shall do all of the following before filing a petition under section 463: a. Send to the County Drain Commissioner a Notice of Intent to file a petition under section 463. b. Prepare or cause to be prepared a proposed plan for financing the project. c. Send by first class mail to the landowners within the proposed drain district a notice which contains all of the following: (i) A general description of the proposed drain project. (ii) Expected benefits of the proposed drain project. (iii) Notice that the proposed project is to be fully or partly financed by special assessment against the property owners within the proposed district. (iv) A statement that alternative plans of tinancing the proposed project will be on the meeting agenda. 10

11 (v) Provide notice of the time, date and place of a public meeting to be held by the legislative body of the public corporation to hear objections to the proposed project or special assessment. d. The public corporations legislative body shall make an affidavit regarding the mailing of the notice described above. MCL a(2). e. The public corporations legislative body shall hold the meeting described above to receive information from the public on the advisability of proceeding with the proposed drain project. MCL 2 S0.489a(3). 54. The Lansing City Council has determined that the Montgomery Drain Project will necessitate the levy of a special assessment, fee or charge under section The Lansing City Council is the only legislative body of a public corporation which has undertaken the steps described in 53a-d and 54, above, and which intends to conduct a public meeting and then tile a petition with the Ingham County Drain Commissioner. 56. As of the date on which the Plaintiff filed this Complaint, none the other public corporations which the lngham County Drain Commissioner has determined to be subject to the assessment for the Montgomery Drain Project has undertaken the steps prescribed by MCL a(l-3) or filed a petition with the lngham County Drain Commissioner. 57. Even if the Lansing City Council holds its public meeting on April 7, 2014, the City will be unable to file a petition for the drain project by itself. At least one other public corporation subject to the special assessment for the drain project must sign that petition. MCL (2) and (4). 58. It is premature and/or will be a futile act for the Lansing City Council to conduct a public hearing on April 7, 2014 in regard to the Montgomery Drain Project because the City, acting by itself, will be unable to file a petition pursuant to section 463 with the lngham County Drain Commissioner. of fl 59. Unless the Court enjoins it from doing so, the Defendant City will conduct its public meeting on April 7, 2014 and will thereafter adopt a resolution authorizing the tiling of a petition for the Montgomery Drain Project with the Ingham County Drain Commissioner thereby causing irreparable harm to the Plaintiff, i.e.. a denial of its rights to due process of law and fair and just treatment. WHEREFORE, the Plaintiff requests that the Court: 11

12 A. Declare that the City and at least one of the other public corporations which shall be subject to the special assessment for the Montgomery Drain Project must tile the requisite petition regarding that project in accordance with MCL (2) and (4). B. Declare that it is flitile and/or premature for the Lansing City Council to conduct a public hearing on April 7, 2014 and resolve to file a petition for the Montgomery Drain Project with the Ingham County Drain Commissioner before at least one of the other public corporations which subject to assessment for the drain project (City of East Lansing, Lansing Township, MDOT or Ingham County) affirmatively indicates that it shall sign that petition. C. Temporarily, preliminarily and permanently enjoin the Defendant City from conducting a public hearing on April 7, 2014 until at least one of the other public corporations identified above affirmatively indicates that it will join in the City of Lansing s petition with the lngham County Drain Commissioner. D. Temporarily, preliminarily and permanently enjoin the Defendant City from adopting a resolution to file the petition until at least one of the other public corporations identified above signs that petition. MCL (2) and (4). E. Order the Defendant City to show cause, if any it has, why the Court should not grant the relief requested above. F. Grant to the Plaintiff such additional relief as the Court finds just and appropnate. 12

13 COUNT II DENIAL OF DUE PROCESS ARISING OUT OF CiTY S CONFLICTS OF INTEREST AND PLAN TO PARTIALLY PAY THE PRIVATE DEVELOPER S CONSTRUCTION COSTS 60. The Plaintiff adopts and incorporates by reference i 1-59 above, as though fully set forth herein. 61. Both the United States and State of Michigan Constitutions provide that no person shall be deprived of life. liberty or property without due process of law. US Const Amend XIV and Mich Const 1963, art I, 62. Additionally, Michigan s guarantee of due process provides that all individuals, firms, corporations and voluntary associations have a right to fair and just treatment in the course of legislative and executive investigations and hearings. MichConst 1963, art l,l The Court has subject matter jurisdiction to consider the Plaintiffs request for equitable relief based arising out of the City s deprivation of the Plaintiffs rights to due process of law and fair and just treatment. Defendant City s Conflict of Interest 64. In regard to the proposed Montgomery Drain Project, the Defendant City has determined that it will levy a special assessment upon the owners of the benefited properties in the Montgomery Drain Drainage District (Exhibits 1 and 6). 65. The Defendant City owns Red Cedar Park. 66. Red Cedar Park is a property which will be especially benefited by the proposed Montgomery Drain Project. 67. The Defendant City has a conflict of interest when serving as the party making the special assessment when at the same time it is an owner of property which shall be benefited by the proposed drain project. l7. I 68. The City also has a conflict of interest because it is presently trying to sell the Red Cedar Park at a time when it knows that the Red Cedar Park will be especially benetited by the drain project and where the City is motivated to limit its share of the assessment for the Montgomery Drain Project in order to make its sales price most attractive to Ferguson. 69. In light of the City s conflicts of interest, the City s holding of a public hearing and participation in the process which will culminate in the filing of a petition with the Ingham County Drain Commissioner and an assessment of the landowners whose property may be especially benefited by the Montgomery 13

14 Drain Project, including the Plaintiffs property, will deprive the Plaintiff of its right to due process, contrary to the federal and state constitutions. 70. It is neither fair nor just for the City of Lansing to undertake the process which will culminate in the issuance of a petition for the Montgomery Drain Project where the City is a property owner, is trying to sell the property at the most attractive price to Ferguson, and is the entity which will levy the special assessment upon other property owners. For this reason, the City s initiation of and participation in this process has deprived the Plaintiff of fair and just treatment contrary to Mich Const 1963, art I, 17. Subsidy of a Private Developer s Construction Costs 71. The Defendant City plans to subsidize the cost of the Ferguson Development in exchange for Ferguson s purchase of the Red Cedar Park and partial repayment of some of those advanced costs. 72. Upon the Plaintiffs information and belief, the City intends to include its subsidy of the Ferguson Development construction costs within the special assessment which the City intends to assess against all of the landowners within the Montgomery Drain Drainage District, including the Plaintiff. 73. It is neither fair nor just to the Plaintiff and all other property owners within the Montgomery Drain Drainage District for the City to subsidize the Ferguson Development s construction costs and include those costs within the special assessment for the Montgomery Drain Project. The City s plan to do so will deprive the Plaintiti of its right to due process guaranteed by Mich Const 1963, art 1, Either singularly or together, the City s conflict of interest in the drain proceeding and its plan to include within the special assessment for the drain project its subsidy of the Ferguson Development shocks one s conscience and results in a depravation of the Plaintiffs federal and state rights to due process of law. 75. Unless the Court enjoins the City from further proceeding with this special assessment process while it still owns and is trying to sell the Red Cedar Park and enjoins the City from including its subsidy of the Ferguson Development s construction costs within the special assessment the Plaintiff will be caused to suffer irreparable harm, i.e., a denial of its rights to due process of law and fair.2 and just treatment. -O 1) WHEREFORE, the Plaintiff requests the Court to grant the Plaintiff the tollowing relief: 14

15 A. Declare that the City of Lansing s participation in the drain project petition process and the resulting levying of a special assessment for the drain project s costs while at the same time owning the property which shall be primarily benefited by that drain project and the City s incentive to secure the sale of the property to Ferguson by ensuring minimal special assessments on the property deprives the Plaintiff of its federal and state rights to due process of law. B. Declare that the City of Lansing s inclusion of subsidized construction costs it will incur upon behalf of the Ferguson Development within the Montgomery Drain s special assessment will deprive the Plaintiff of its federal and state rights to due process of law. C. Temporarily, preliminarily and permanently enjoin the City from participating in the petition process and in the levying of any special assessments for the cost of the Montgomery drain project until afler the City of Lansing has sold Red Cedar Park. D. Temporarily, preliminarily and permanently enjoin the City from including within the assessment for the cost of the drain project any costs associated with, pertaining to and/or which benefit the Ferguson Development. E. Order the Defendant City to show cause, if any it has, why the Court should not grant the relief requested above. F. Grant to the Plaintiff such additional relief as the Court finds just and appropriate. COUNT III DENIAL OF DUE PROCESS REGARDING FEASIBILITY ANALYSIS EXPENSE 76. The Plaintiff adopts and incorporates by reference f 1-75 above, as though fully set forth herein. 15

16 77. On or about October 16, 2013 the City and the Ingham County Drain Commissioner entered into the Feasibility Analysis Agreement attached to this Complaint as Exhibit The cost of the feasibility analysis was stated to be (Exhibit 4, p. 2). 79. Upon the Plaintiffs information and belief the actual amount of money which the City has spent to date is approximately The Feasibility Agreement recites that the City is seeking to redevelop and enhance the Red Cedar Park (Exhibit 4, p. 1) 81. The Feasibility Agreement pertains to the determination of the feasibility, practicality, environmental assessment or impact studies of the Montgomery Drain Project which also includes the development and enhancement of the Red Cedar Park (Exhibit 4, p. 2). 82. The redevelopment and enhancement of the Red Cedar Park includes the City s plan to subsidize part of the cost of the Ferguson Development and thereafter receive a rebate of some of that cost from Ferguson (Exhibit 3). 83. Upon the Plaintiff s information and belief, the City entered into the Feasibility Agreement with the lngham County Drain Commissioner with the intention to subsidize the cost of the Ferguson Development and include that cost within the special assessment for the Montgomery Drain Project. 84. It is unfair and unjust, and shocks one s conscience to include the cost of the feasibility analysis within the special assessment for the cost of the Montgomery Drain Project where that cost was incuned to determine the feasibility, practicability, environmental assessment or impact study of the project which is being undertaken to benefit the City and the private developer at the expense of the other landowners such as the Plaintiff within the Montgomery Drain Drainage District. 85. Unless the Court enjoins the Defendant City from including the $266,000 (and any and all additional sums spent by the Defendant pursuant to the Feasibility Agreement) within the special assessment for the Montgomery Drain Project, the Plaintiff will be caused to suffer irreparable harm. WHEREFORE, the Plaintiff requests the Court to grant it the following reiiet ti A. Determine that the Defendant City shall not include any costs it has incurred and all additional expenses it may incur in connection with the feasibility analysis undertaken 16

17 pursuant to the Feasibility Agreement within the Montgomery Drain Projecfs special assessment. B. Permanently enjoin the City from including any costs it has incurred and all additional expenses which it may incur in connection with the feasibility analysis undertaken pursuant to the Feasibility Aeement within the Montgomery Drain Projecfs special assessment. C. Order the Defendant City to show cause, if any it has, why the Court should not grant the relief requested above. D. Grant to the Plaintitf such additional relief as the Court finds just and appropriate. Respectfully submitted, FRASER TREBILCOCK DAVIS & DUNLAP, P.C. Attorneys for Plaintiff / Dated: Apl 3,2014 By: d Michael H. Perry (P 2289 Thaddeus E. Morgan (P473 94) 124 W. Allegan, Suite 1000 Lansing, Michigan (517) VERIFICATION ON NEXT PAGE I 17

18 - -- County, VERIFICATION STATE OF MICHIGAN ) COUNTY OF INGRAM ) ss. ) Patrick F. Corr, being duly sworn, states as follows: I. I am one of the managers of the Plaintiff, the Lansing Retail Center, LLC. 2. I have read the Veritied Complaint for Injunctive and Declaratory Relief and Ex Parte Motion for an Order to Show Cause. 3. The factual contents of this Verified Complaint are true except for those matters stated to be true based upon my information and belief which I beiieve to be tme. / 7 / / /atrick F. Corr Subscribed and sworn to before me this day of April, 2014 I - F Notary Public, MI Acting in Ingham County, Michigan My Comm. Expires 18