Académique Documents
Professionnel Documents
Culture Documents
TWENTY-SECOND CIRCUIT
(City of St. Louis)
When anybody comes in and they make great promises about how
things are gonna change, until it actually occurs you never know. And
[Paul McKee] had a plan of how he was gonna revitalize all of North
St. Louis. It may have happened. Again, it ain't. But no one else
had a plan. * * * The pipe dream means that maybe, maybe not. Let's
take a chance on it. Nobody's gonna get hurt. Let's try it.
Testimony of Alderman Freeman Bosley, Sr.
Bosley's words, "Let's try it." The Court concludes that the answer
before the proposed ordinances had been enacted, on the theory that
2
respondents included the City of St. Louis, the members of the City’s
Tax Increment Financing Commission, the Mayor, and all members of the
(Def.Ex. A & B; Int.Ex. 1 & 2), were ultimately approved, and the
The case was tried to the Court over several days in February and
that Ordinances 68484 and 68485 are invalid as in excess of the City’s
3
authority under the Real Property Tax Increment Allocation Act,
second amended petition at ¶21 alleges that the ordinances are beyond
the blighting determination was the product of bad faith due to lack
there was no proper finding that redevelopment could not occur without
tax increment financing (count III), and that the redevelopment plan
intervenors’ claims.
4
comprising Ex. 13A that are not part of a public record. Defendants’
Northside in fact applied for state tax credits in connection with its
below.
Facts
The Court did not have the pleasure of meeting Paul McKee at
portion of what is commonly called the north side of the City of St.
5
Louis. Prior to the filing of the TIF application, acting through a
million in state tax credits and desired TIF assistance in the sum of
$409 million for the entire redevelopment plan. Pl.Ex. 7, pp. 12, 17,
passim.
staff of its own, but relies on the City’s land use apparatus,
2009. Pl.Ex. 10. The TIF Commission then gave various notices of a
6
owners in the redevelopment area by certified mail. These notices
7
The TIF Commission adopted a resolution on September 23, 2009,
described in” the plan are adopted and approved (Section Three); and
Project,” pledging the funds in the special allocation fund for the
68484 also sets out at Section One the various findings required by
8
comprehensive plan for the redevelopment of the City as a whole, that
commencement of site work, see, e.g., §3.4, the contract nowhere sets
9
the Court denied the motion for a preliminary injunction. The record
does not reflect if Northside has commenced any significant site work.
Northside’s request. The contract limits, but does not foreclose, use
plan.
applied for state tax credits. Int.Ex. 16. As noted above, Northside
the time of trial, the evidence was that such credits would be or had
been approved. Under Ordinance 68484, all real property tax revenues
“surplus."
10
testified credibly that the market value of her property has been
City. The Court infers from the entire record that the diversion of
ordinance of the City of St. Louis was adopted in 1947. That plan is
plan.” Def.Ex. K. This plan was apparently approved by the City plan
reconstruction, but the "strategic plan" does not really set out any
specific plan for developing even these areas. The "strategic plan"
the City as a whole, but merely memorializes existing land uses in the
11
City as of the time of its adoption. To the extent that it
anticipated uses of the land in the redevelopment area and the uses
for the ward itself. Int.Ex. 9, see also Ex. 10. Here, too, the
lying mostly northwest of the downtown area. The Court will not
12
Highway 64/40 (referred to as a “panhandle” in Intervenor Ex. 6, p. 8)
for TIF assistance at this time. The existing land uses in these two
evidence that the platting of the areas in the redevelopment area has
surveyors.
13
appendix C. There was also evidence that parts of the Northside
contract between the City and Northside, and the redevelopment plan,
11.
on areas A and B, that evidence suggested that they were not economic
time of trial, Northside had assembled about 10% of the acreage under
its control, expected state tax credits of perhaps $250 million, and
14
continue and perhaps increase a line of credit which in the past has
other developments.
concedes that the "projections are for a concept that is not yet
relies in some measure on the "market study" which was also presented
The market study includes data from surrounding markets against which
redevelopment.
15
effect that the revenue projections and the “return on cost” estimates
Denver Stapleton project and the Chicago South Loop project on the one
hand and the Northside plan on the other are flawed, due to
16
Dr. Boldrin was likewise critical of defendant Northside’s “cost-
without TIF assistance and 8% with such assistance. The same analysis
projects a net profit over the life of the redevelopment plan of $251
million without TIF assistance and almost $661 million with such
profits for redevelopment areas A and B, but very large returns for C
Issues
arguments to the Court that Ordinances 68484 and 68485 are invalid
17
designation of the whole; (3) the cost-benefit analysis is arbitrary
does not conform to the City’s comprehensive development plan; (5) the
funding to pay the development costs; (6) the TIF Commission and the
City have exceeded their authority by committing TIF funds for the
redevelop the plan area without TIF assistance; (8) Northside’s fiscal
impact study is inadequate; and (9) the City has exceeded its
is procedurally defective.
18
redevelopment plan’s contents as distinguished from its approval.
sufficient, and that they need not demonstrate the source of funds as
the requirements of Ch. 99. Given that framework, the Court's role is
narrowly circumscribed.
19
As the Court intimated in its prior order denying the preliminary
observed, necessary findings have been made, and whether the City’s
(the Court is not quite sure what that means, but takes it to mean
Auth., 742 S.W.2d 146 (Mo.banc 1987); Meramec Valley R-III Sch. Dist.
Evidence supporting the findings of the legislative body need not have
been before that body at the time of approval of the ordinances, nor
often lay the foundation for the exercise of the mighty power of
20
procedural prerequisites. Furthermore, the statutes frequently employ
approval. The use of the word “shall” means that the requirement is
St. Louis, 218 S.W.3d 417 (Mo.banc 2007); Maryland Plaza Redev. Corp.
declarative and imperative moods and being very careless with its
Standing
21
prosecute this action. Standing, of course, is a prerequisite to
e.g., Harrison v. Monroe County, 716 S.W.2d 263, 266 (Mo.banc 1986);
see also Missouri Alliance v. Dept. of Labor & Indus. Rel., 277 S.W.3d
fix a time and place for a public hearing on the proposed plan, and
must give notice of the hearing; the TIF commission must give notice
22
certified mail to each owner shown on the tax rolls at least ten days
stage (and now reiterates those findings) that the City’s TIF
Commission does not invalidate the ordinances. The statute does not
standards for the hearing. That some members of the public may have
been excluded does not mean that the hearing was invalid.
Commission process.
23
redevelopment plan to be financially feasible. Plaintiffs have raised
contents of the plan and the requisite findings are mandatory and must
aspects ante and will not repeat that description here. Suffice it to
with the TIF commitment. Northside has not seen fit to provide
24
Northside’s representation of its control of a substantial portion of
92, Judge Gunn commented about the necessity of strict compliance with
itself invested with the power of eminent domain. The redeveloper was
ordinance, found that a detailed statement had been provided, but the
“statement” was little more than the developer’s promise to find the
money. The trial court and the Court of Appeals held that the
Appeals distinguished Maryland Plaza and held that the requirement for
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that was required was enough information to permit the Board of
Maryland Plaza. The Court cannot demand, “Show me the money!” The
Court can only consider whether Northside showed the City enough
plan. See also Annbar Assoc. v. West Side Redev. Corp., 397 S.W.2d 635
financing behind the plan, particularly given the extensive land area
projects identified in the plan and given that the use of eminent
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financial aspects of the redevelopment plan, at least in the context
of this action.
statutory finding.
Meramec Valley R-III Sch. Dist. v. City of Eureka, 281 S.W.3d at 835-
frequent and unsuccessful attacks in both the TIF and eminent domain
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difference in the statutory definitions of blight, as §523.261
See, e.g., Centene Plaza Redev. Corp. v. Mint Properties, 225 S.W.3d
legislative finding); see also City of Kansas City v. Ku, 282 S.W.3d
The Court of Appeals in that case upheld a determination that the West
County shopping mall in St. Louis County was blighted, holding that
the question was fairly debatable despite the fact that the mall was
improvements, and higher than average crime rates. There was also
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plaintiffs point to credible evidence that there was exaggeration of
some of the conditions, and also accurately note that the evidence of
as a whole does not end the matter, however, as there is still the
area need not be blighted in order for a legislative body to find that
area is permissible, then it does not matter if areas A and B are not
29
The Court agrees with defendants that the statute contemplates
and the plaintiff attacked selected phases, but the Court of Appeals
findings that the redevelopment area has not been subject to growth
test, i.e., but for TIF, the area will not redevelop. Here, again,
question is whether the record shows that such findings are fairly
occurred, does that merely make the “but for” question fairly
yes. Thus, the evidence in this case which shows some private
low level of activity overall forces the Court to conclude that the
30
Good Faith
various aspects of the Northside plan and its approval that, to them,
The record in this case does not show any material issue in
31
At first blush, it would seem that the Board of Aldermen’s
the last comprehensive plan adopted by ordinance dates to 1947 and the
Northside plan did not even refer to the 1947 plan. The City's own
Any blighting study and redevelopment plan under Chapters 99, 100 and
353 RSMO shall be submitted to the Planning Commission for its
recommendation as to its conformity with the Comprehensive Plan. No
ordinance adopting any such blighting study or redevelopment plan
shall be adopted over the negative recommendation of the Planning
Commission unless it receives the affirmative vote of the majority of
all the members of the Board of Aldermen." [Ordinance 64687, Int.Ex.
35.]
No effort was made in this case to comply with that ordinance. The
959 S.W.2d 815 (Mo.App.E.D. 1997); see also Great Rivers Habitat
question in this case is, can the Board of Aldermen find conformity to
1
The Court does not construe Ordinance 64687 as forbidding the enactment of a
redevelopment plan or a blight finding without approval of the plan
commission, but the Court takes evidence of failure to comply with the
ordinance as some evidence that the redevelopment plan does not conform to
the City's comprehensive plan.
32
a comprehensive plan based largely on the proposition that the City’s
Lake, 935 S.W.2d 634 (Mo.App.W.D. 1996), for the proposition that a
subdivision platting case, and the issue was whether the city had
to control and direct the use and development of property in the city
itself. See also Strandberg v. Kansas City, 415 S.W.2d 737 (Mo.banc
Here, there was evidence that the 1947 plan was adopted by
ordinance, but that ordinance was not put into evidence. More
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appear to concede that the only evidence of conformity to a
which has not been adopted by ordinance but apparently was approved by
contends that the fifth ward plan, standing alone, amounts to the
to hold, the Court is left with no choice but to defer to the judgment
fact conforms, then the Court must defer to the judgment of the Board
long after adoption of a 1947 master plan, and which clearly did not
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conform to the 1947 plan, Judge Blackmar dismissed the contention that
the statutory condition had not been fulfilled : “To the extent that
there are differences [between the general plan and the redevelopment
approved by ordinance.
In this case, the TIF Commission and the Board of Aldermen found
conformity to the 2005 “strategic plan,” treating the 2005 plan as the
Because the Court cannot hold as a matter of law that the 2005 plan is
to what the comprehensive plan is, the Court simply has no choice but
35
No redevelopment plan shall be adopted by a municipality
without findings that: * * * (3) The estimated dates, which shall not
be more than twenty-three years from the adoption of the ordinance
approving a redevelopment project within a redevelopment area, of
completion of any redevelopment project and retirement of obligations
incurred to finance redevelopment project costs have been stated,
provided that no ordinance approving a redevelopment project shall be
adopted later than ten years from the adoption of the ordinance
approving the redevelopment plan under which such project is
authorized and provided that no property for a redevelopment project
shall be acquired by eminent domain later than five years from the
adoption of the ordinance approving such redevelopment project. [§
99.810.1(3).]
areas.
36
defendants’ construction of the statute. True, the statute permits
statute of limitations. The statute does not mean that a city has up
(Mo.App.E.D. 2008).
to ten years in the hope that someone would devise an actual project.
City of Shelbina v. Shelby County makes it clear that the TIF act does
37
definition. That definition of project is "a specific plan or
The Court cannot read language out of the statute, but must give
define each and every redevelopment project and set out a completion
38
date. The statute refers to "any" redevelopment project. It is
68484, Section Twelve. In any event, § 99.810 does not mandate that
39
whether the project as proposed is financially feasible. [§
99.810.1(5).]
but the intention is clear: the Board of Aldermen must find that a
must also show the impact if “the project” is built compared to the
impact if it is not built. (Here again the statute uses the word
“project” as distinct from the plan, and here again the defendants
which does not involve any defined project, but addresses the plan’s
the basis of the plan's objectives. Assuming that the statute's use
benefit analysis does not provide any information about the impact of
40
project in the second and third sentences of §99.810.1(5) was
rosy scenarios to shame. But the issue, once again, is whether the
faulty that the TIF Commission and the Board of Aldermen could not
41
Northside’s cost-benefit analysis was prepared by qualified urban
that fact does not render his evidence insubstantial. As the cases
make clear, the TIF Commission and the Board are at liberty to select
substantial and not the product of fraud, collusion or bad faith. The
credentials and credibility are less than those of Dr. Boldrin in the
42
The sometimes Delphic quality of the draftsmanship of the TIF act
that the statute was not adopted with massive redevelopment plans in
imprecisely, the General Assembly obscured the fact that the statutory
the TIF act, but they are perceptible. Unless an area, a plan and a
also Tax Increment Financing Comm. V. J.E. Dunn Const. Co., 781 S.W.2d
supra. Yet that is precisely what the defendant City has chosen to do
chose to omit defined projects from the redevelopment plan and from
elected to postpone any real project agreements. See also Int.Ex. 23,
43
Kacie Triplett: “Will there be a new redevelopment agreement for each
original.]
44
benefited. Lastly, §99.845.1 plainly provides that “in the event a
projects, but Shelbina makes clear that defendants are not free to do
so. The Court has agreed that the statutes do not forbid phasing in
plan, and creation of a TIF special allocation fund, all in the same
recent vogue, the TIF act requires that a redeveloper present “shovel-
45
The only difference between the ordinances at issue here and the
Shelbina ordinances is that, in this case, the City has identified and
It seems clear from the reported cases and the record in this
case that cities and redevelopers have undertaken to push the limits
of the envelope created by the TIF act. Most of the cases appear to
center upgrade in JG St. Louis West, supra. Of late, however, the TIF
Valley R-III Sch. District, supra. The problem is, however, that
redevelopers whenever the City feels like it. The statutes demand
46
There may be an argument that the defect in Ordinances 68484 and
86485 detected by the Court was not fairly embraced by the pleadings
Court considers that this was sufficient, coupled with the general
financial findings are not arbitrary or in bad faith (to the extent
they are relevant to the plan's contents and do not involve the issue
arbitrary and beyond the powers of defendant City under the TIF act.
Attorney’s fees
47
Plaintiffs and intervenors have pleaded an entitlement to
this action. Attorney's fees are not "costs" under §527.100, RSMo
* * *
Both on and off the bench, the Court has had extensive experience
with the perils of urban redevelopment, and the “City of Plans”2 has
had still more. See Thomas W. Garland, Inc. v. City of St. Louis, 596
F.2d 784 (8th Cir.), cert. denied, 444 U.S. 899 (1979), on remand, 492
F.Supp. 402 (E.D.Mo. 1980); QuikTrip Corp. v. City of St. Louis, 801
S.W.2d 706 (Mo.App.E.D. 1990); The Conlon Group v. City of St. Louis,
22nd Cir. No. 994-01675. Quite frankly, the Court considers that a
aldermen to stay out of the way, and incredible good luck, could
2
The Court attributes this phrase to columnist Bill McClellan of the St.
Louis Post-Dispatch.
48
If St. Louis has found a worthy successor to Daniel Burnham or
temporary obstacle in his path. The Court does not relish the role of
the Court has a job to do, and the Court owes a sworn duty to enforce
the law. If the courts will not enforce the statutory requirements
3
The Court does not decide whether the defects in the ordinances at issue can
be cured. Certainly Adams v. City of Manchester, 242 S.W.3d 418 (Mo.App.E.D.
2007), strongly implies that cure is possible.
49
ORDERED that a preliminary order in mandamus be and the same is
Louis, the Board of Aldermen of the City of St. Louis, and Northside
is declared that Ordinances 68484 and 68485 of the City of St. Louis
§§99.800 et seq., RSMo 2000 & Supp., in the absence of the inclusion
it is
them with notice of this Order and Judgment be and they are hereby
and 68485 of the City of St. Louis, including but not limited to
action under said ordinances; provided, that this judgment shall not
50
FURTHER ORDERED that plaintiffs’ and intervenors’ application for
attorney’s fees be and the same is hereby denied; costs taxed against
defendants.
SO ORDERED:
___________________________
Robert H. Dierker
Circuit Judge
Dated:__________________, 20___
cc: Counsel/Parties pro se
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