Property groups respond to KeenMac's, SEMO Cardinal's motion to dismiss in federal case

Property groups, including Athena Property Group, on Tuesday, Feb. 25, filed a memorandum in opposition to KeenMac's and SEMO Cardinal Group's motion to dismiss a federal case over alleged unlawful restrictions on alleyway access for a restaurant drive-thru.

The plaintiffs in the case — Athena Property Group LLC, APG Limited LLC, Shiloh LLC and Remedy Capital LLC — filed a lawsuit against the City of Cape Girardeau, KeenMac LLC and SEMO Cardinal Group LLC regarding the city’s decision to issue a special-use permit for the use of the alleyway to KeenMac LLC for Roni’s Mac Bar restaurant at 716 Broadway.

The plaintiffs claimed in their petition that the defendants' actions have “unreasonably and unlawfully” restricted the plaintiffs’ drive-thru access and rights to the alley and have suffered damages in excess of $25,000.

Defendants KeenMac and Cardinal Group filed a motion to dismiss and claimed the "alleged facts" in the petition filed against them involve the City of Cape Girardeau, not the application process or the improper issuance of a special permit related to the two defendants. They requested that both counts be dismissed.

The plaintiffs filed a response to KeenMac and Cardinal Group's motion to dismiss, claiming both defendants are proper parties in the suit. The document states that the two defendants argued they didn't need to obtain a special-use permit for the drive-thru, which the plaintiffs argue is incorrect.

"First, note that if true, this in fact confirms that issuing the special use permit was arbitrary and thus invalid. Seeking and issuing a permit voluntarily, that no party was required to obtain," the documents state. "Second, operating a drive-through in a public alley, with or without a special use permit, is a per se violation of the City of Cape's own ordinances."

The plaintiffs also argued in the memorandum that both defendants are properly named under count two of inverse condemnation because of legal precedents. The memorandum states that in Heuer v. City of Cape Girardeau, where a "similar issue" was tried and a landowner sued both the city and a convenience store owner for inverse condemnation.

According to the document, the plaintiffs asked that if the court determined the petition was not properly pleaded, to allow them to amend it.