IN THE CIRCUIT COURT OF THE CITY OF ST.

LOUIS STATE OF MISSOURI

BONZELLA SMITH, et 31.,

Defendants.

) ) )

) No. 0922-CC9379 )

)

) Div. 18 )

)

Plaintiffs/Intervenors,

vs.

TIF COMMISSIONERS, et a1.,

NORTHSIDE'S POST -TRIAL BRIEF

INTRODUCTION

Criticism is necessary and useful; it is often indispensable; but it can never take the place of action, or be even a poor substitute for it. The function of the mere critic is of very subordinate usefulness. It is the doer of deeds who actually counts in the battle for life, and not the man who looks on and says how the fight ought to be fought, without himself sharing the stress and the danger

Theodore Roosevelt, 1894.

Northside Regeneration, LLC ("Northside") proposes the reformation of 1500

acres in North St. Louis into a vibrant and cohesive mixed-use community that will include state

of the art infrastructure, new schools, parks, residences, office buildings, theaters, shops and

other uses. Northside seeks TIP financing to assist its rehabilitation of the City's streets,

sidewalks, sewers and other infrastructure. Northside does so at its own risk, not at the risk of

the City or its residents. Northside must spend its own money to rebuild public infrastructure

before it can ask the City to issue TIP Notes and, even then, Northside can only expect

reimbursement from those Notes if Northside is able to create the incremental value it anticipates

under its redevelopment plan.

(Post Tr Br 3.doc)

Most of Northside's redevelopment plan targets the City's 5th Ward, which

residential and commercial developers have long ignored and which, even by Intervenors'

evidence, cannot expect meaningful economic progress without tax increment financing and

large scale planning:

Large-scale planning ideas are needed as a catalyst for development (6-1)

The recommendation for a large land use should be explored and pursued in this portion of the St. Louis Place neighborhood for the stabilization of the Fifth Ward and surrounding communities and for continuous positive economic growth (6-S)

In an area that has long been in decline, large-scale planning ideas should be considered (6-6)

Given the necessity of substantial reliance on incremental tax revenue raised from the new development as the primary revenue source to fund the Ward projects, completion of planned public projects will be a multi-year effort and progress will occur slowly (19-1)

LEx. 10, A Plan for the Neighborhoods of the Sth Ward c. 2000 ("Sth Ward Plan").

Two residents of the Sth Ward now ask the Court to derail Northside's project,

despite its potential to better the lives of hundreds of thousands of their neighbors. It is both

distressing and telling that much of Plaintiffs' 1. criticism, both at trial and in the media, focused

on an issue that Intervenors now concede is "irrelevant"-the use of eminent domain (I.Br. 13 n.

1). It is also telling that Plaintiffs rely heavily upon the testimony of Professor Boldrin, who

clearly did not understand Northside's plan or the TIP Act. Apparently keying upon counsel's

approach, Professor Boldrin believed, and thought it important, that the Board of Alderman had

empowered Northside with the power of eminent domain:

I For ease of reference, Plaintiffs and Intervenors will be referred to collectively as "Plaintiffs, " unless the context requires otherwise, in which case the parties shall be referred to as the Intervenors or Amon Plaintiffs.

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What the project says is very simple. We will take over all this area, you'll give us eminent domain on all of it and we'll make miracles on it.

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*

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... the eminent domain also seems to be a key component there .... There is nothing in the project. .. to justify the eminent domain

(2/16 Tr. 30,57). Presumably because he lacked any meaningful TIP experience.r Professor

Boldrin also misunderstood the TIP process, believing and basing his opinions on the notion that

the approval of TIF financing contemplated an upfront grant of public money to Northside:

Why don't you give me some up front public money? I'll get started and then we'll see how we go?

(2/16 Tr. 42; see also 2/16 Tr. at 43,53).

Northside's redevelopment plan contemplates the rehabilitation of public

infrastructure in North St. Louis with Northside's money. Northside properly documented, and

the Board of Alderman properly approved Northside's redevelopment plan. The Court should

reject all of Plaintiffs' challenges.

STATEMENT OF FACTS

Northside will state the facts relevant to Plaintiffs' challenges in each separate

section.

2 Professor Boldrin has never advised anyone specifically on TIF matters (2/16 Tr. 13), has never authored any articles on TIF (2/16 Tr. 107), has never taught any classes on TIF (2116 Tr. 107), and has never been asked to consult on rea] estate development anywhere in the United States (2/16 Tr. 108). He did not do any of his own analyses (2/16 Tr. 103-5) and, despite his criticism of Northside's plan, based his own opinions on a "back of the envelope" calculation (2/16 Tr. 39,49).

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DISCUSSION

I. STANDARD OF REVIEW

There seems to be little dispute over the legal standard governing the Court's

review of the aldermanic process:

It has long been the rule in Missouri that disputes over the propriety of a municipality's legislative findings are to be resolved by application of the "fairly debatable" test Under that test, we will not substitute our discretion for that of a legislative body, and review of the reasonableness of Iegislative action "is confined to a determination of whether there exists a sufficient showing of reasonableness to make that question, at the least, a fairly debatable one; if there is such, then the discretion of the legislative body is conclusive." Our Supreme Court has explained the policy underlying this rule:

Out of proper respect for the role of co--equal branches of government, this Court has consistently refused to second--guess local government legislative factual determinations that a statutory condition is met unless there is a claim that the city's decision is the product of fraud, coercion, or bad faith, or is arbitrary and without support in reason or law.

The "fairly debatable" test may also be justified as flowing naturally from a well--recognized presumption: because the validity of legislative enactments is presumed, uncertainties about their reasonableness "must be resolved in the government's favor." In order to overcome this presumption, it must be shown that no such uncertainty exists-vthat the challenged action is not" reasonably doubtful or even fairly debatable. tI

Great Rivers Habitat Alliance v. St. Charles County, 246 S.W.3d 556,562 (Mo.App. W.D.

2008)( citations omitted; emphasis added).

The Court makes its own independent determination of whether the legislative

body's decision was fairly debatable. JG St. Louis West, LLC v. City of Des Peres, 41 S.W.3d

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513,517 (Mo.App. E.D. 2001). "[Jjudicial review of that issue focuses on 'whether there is

substantial evidence to support the legislative decision." Great Rivers, 246 S.W.3d at 562.

Substantial evidence is "competent evidence which, if believed, would have probative force upon

the issues." Windy Point Partners, LLC v. Boone County, 100 S.W.3d 821, 825 (Mo.App. W.D.

2003).

H. THE COURT SHOUI.~D REJECT PLAINTIFFS' CHALLENGES TO THE NORTHSIDE ORDINANCES BECAUSE, AT A MINIMUM, THE BOARD OF ALDERMEN'S APPROVAL OF THE ORDINANCES WAS

FAIRLY DEBATABLE AND SUPPORTED BY SUBSTANTIAL EVIDENCE

A. The TIF Act Contemplates Phased Implementation Of Redevelopment Projects Within A Redevelopment Area And, Therefore, The Ordinances Do Not Violate RSMo §99.805(12)

Section 99.805(12) of the TIP Act defines a redevelopment area as follows:

(12) "Redevelopment area", an area designated by a

municipality, in respect to which the municipality has made a finding that there exist conditions which cause the area to be classified as a blighted area, a conservation area, an economic development area, an enterprise zone pursuant to sections 135.200 to 135.256, RSMo, or a combination thereof, which area includes only those parcels of real property directly and substantially benefited by the proposed redevelopment project. .. (emphasis addedr'

In its December 9,2009 Order, the Court stated:

Because a redevelopment area is not to exceed in scope "those parcels or real property directly and substantially benefited by the proposed redevelopment project" (emphasis added [by the Courtl), the Court considers that

3 Intervenors argue that the statute's reference to an "area includ[ing] only those parcels of real property directly and substantially benefited by the proposed redevelopment project" requires a "homogeneous" redevelopment area, citing only to Professor Boldrin's testimony (LBr. 17). Professor Boldrin's credibility aside, he never explained what he meant by a homogeneous versus heterogeneous area, and a literal interpretation of his theory would make it difficult, if not impossible, to redevelop anything other than a single parcel. All real estate, and certainly all real estate within City boundaries, is unique. The statute's reference to property benefited is meant to ensure that the area and the proposed project boundaries are co-extensive. There is no statutory requirement for a "homogeneous" redevelopment area and the Court of Appeals very recently rejected a blighting challenge based upon the notion that different phases of a redevelopment contained different indicia of blight. Meramec Valley R-lll School District v. City of Eureka, 281 S.W.3d 827,836-37 (Mo.App. B.D. 2009).

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the authority to find or declare an area "blighted," is limited to areas that are subject to redevelopment projects defined within the plan.

Northside agrees with the Court's statement. However, Northside submits that the Court should

have placed additional emphasis on the word "proposed" that modifies "redevelopment project"

because, in its next sentence, the Court substitutes the word "approved" for proposed:

Therefore, the TIF Commission's recommendation of approval of financing only for Redevelopment Project Areas A and B, and the ordinances' contemplation of financing of those project areas only, means that the Board of Aldermen was without power to enact an ordinance prescribing a redevelopment area that included parcels outside of the approved redevelopment projects. (emphasis added)

The Court's definition of redevelopment project to include only those redevelopment projects

submitted for TIF financing ascribes no significance to the word "proposed" in §99.805(l2),

which runs contrary to basic principles of statutory construction. See, e.g., Hyde Park Housing

P 'ship v. Dir. of Revenue, 850 S. W.2d 82, 84 (Mo. 1993)('"[i]t is presumed the legislature

intended that every word, clause, sentence and provision of a statute have effect and be

operati ve").

The Act contemplates that a municipality may approve TIF financing for various

redevelopment projects at various points in time after the redevelopment area is defined. First,

the Act does not define "redevelopment project" to include only those projects submitted for TIF

financing:

(14) "Redevelopment project", any development project

within a redevelopment area in furtherance of the objectives of the redevelopment plan; any such redevelopment project shall include a legal description of the area selected for the redevelopment project (emphasis added)

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"Any" project satisfies the definition and, depending upon the "area selected" for the project, a

redevelopment project may encompass some or all of the redevelopment area.

Consistent with that definition, the TIF Act provides for the subdivision and

phasing of discrete projects within a redevelopment project area. For example, in §99.805(13),

the Act acknowledges that a "redevelopment plan" will "[qualify] the redevelopment area as a

blighted area," and, in §99.81O.1(3), allows the Board to approve redevelopment projects for ten

years after it approves the plan: "[N]o 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 .... " Section 99.820.1(1) acknowledges the

possibility of sequential approval and, more important, expressly authorizes the Board to approve

projects after it establishes the redevelopment area:

(1) By ordinance introduced in the governing body of

the municipality within fourteen to ninety days from the completion of the hearing required in section 99.825, approve redevelopment plans and redevelopment projects, and designate redevelopment project areas pursuant to the notice and hearing requirements of sections 99.800 to 99.865. No redevelopment project shall be approved unless a redevelopment plan has been approved and a redevelopment area has been designated prior to or concurrently with the approval of such redevelopment project and the area selected for the redevelopment project shall include only those parcels of real property and improvements thereon directly and substantially benefited by the proposed redevelopment project improvements; (emphasis added)

These sections demonstrate that the legislature meant a meaningful distinction between the

"proposed" redevelopment project that defines a redevelopment area, and the projects that the

Board might thereafter approve for TIF financing. 4

4 Amon Plaintiffs appear not only to confuse the two, but also to suggest that the approval of TIF financing for RPA A and B should be deemed a disapproval of RPA C and D altogether (A.P.Br. 29-30).

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Other sections contemplate phased redevelopment. For example, §99.825.1

requires a public hearing "[p [rior to the adoption of an ordinance proposing the designation of a

redevelopment area, or approving a redevelopment plan Q!. redevelopment project. ... " (emphasis

added). The Act contemplates that the Board may approve TIF financing for only portions of a

redevelopment area at a time, and accordingly allows the Board to choose whether it will issue

TIF notes "for the redevelopment area Q! redevelopment project. ... " §99.835.1 (emphasis

added).

The Court's construction allows only for simultaneous approval of the

redevelopment area and TIF financing for all redevelopment projects within that area. This

would have the unintended consequence of foreclosing redevelopment of a blighted area unless

the redevelopment of every square foot required TIF assistance.

Here, the proposed redevelopment projects that supported the creation and

approval of the redevelopment area differed from those the Board initially approved for TIF

financing. The Redevelopment Plan defined Northside's "Redevelopment Projects" as the

"redevelopment projects within the Redevelopment Project Areas described below" (LEx. 4 at 7)

and laid out the proposed redevelopment plan for Areas A through D in considerable detail (LEx.

4 at 19-27). See also, Redevelopment Agreement, LEx. 3 at 6 ('''Redevelopment Project' Of

'Redevelopment Projects' means one or more of Redevelopment Projects in RPA A,

Redevelopment Projects in RPA B, Redevelopment Projects in RPA C and Redevelopment

Projects in RPA D, as identified in the Redevelopment PIan"). The Board of Aldermen approved

the broad plan based upon the totality of the proposed projects, but limited its approval of TIF

financing to discrete parts of the overall plan:

Q: (by Mr. Puricelli) President Reed, as I understand it Northside came to the Board of Aldermen with a

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proposed redevelopment project that included Areas A through D, correct?

A: Yes.

Q: And that plan that included that proposed project is what you approved, correct?

A: Yes.

Q: And the projects contained in that, correct?

A: Yes.

Q: But now explain, if you will, the difference between approving that plan and approving TIP financing for projects within that plan.

A: Yes. We approved the plan, and part of what we're gonna do is, again, like we talked about earlier, is activate Projects A and B and the TIP financing within that. As projects come on line, and a good example to look at if you want to see how this thing will operate, is to take a look at Lafayette Square, because that was an area TIP as opposed to just a TIF for a single facility. And as projects come on line then they will receive the benefit of TIF dollars and they're calculated there within once they come on line.

(2/25 Tr. At 64-65; objection omitted).

This structure allows the Board to retain control over the extent to which it will

activate TIP financing as the project progresses, a result that Plaintiffs should favor. In this

fashion, the Board can periodically assess the progress of redevelopment to determine whether it

justifies the continued support of TIP. Accord, Parking Systems, Inc. v. Kansas City Redev.

Corp., 518 S.W.2d 11 (Mo. 1974)(ordinance approved Stages I and II of redevelopment project).

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B. The Board's Approval Of The Ordinances Was Supported By Substantial Evidence Of The Commitments To Finance Project Costs (I.Br. 20B23; A.P.Rr. 7~12)

Section 99.810.1 contains two discrete provisions. First, it provides that a

redevelopment plan "shall include ... evidence of the commitments to finance the project costs,"

among other things. Second, it lists the formal preconditions to a municipality's approval of the

plan, which do not include any condition relating to financing commitments. There is no case

law addressing the structure of §99 .810.1, but its duality was clearly purposeful. The first clause

appears to serve as a checklist to ensure uniformity of submissions and to ensure that plans

submitted to the TIF Commission have a minimum level of information to guide the

Commission's review before the Commission makes its recommendation to the Board. The

checklist would also serve as a statutory basis for the Commission-and, thereafter, the Board-

to request additional information from the applicant if the circumstances of the proposed

redevelopment and submission so warranted. The separate clauses suggest that the legislature

accorded less significance to the checklist than the explicit preconditions found in the second

sentence.

Plaintiffs suggest a far higher standard-i.e. that any redevelopment plan, no

matter its scope or duration, must presumptively include a detailed and comprehensive

commitment to finance every nickel that the redeveloper intends to spend. The Northside

project, like other phased projects in the City, demonstrates that the legislature could not have

intended such a commercially impracticable requirement.

As Chairman Newburger explained, the TIF Commission expects that the

reported financing commitments will be tailored to the commercial reality of the redevelopment

proposal:

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There are two different kinds of TIP applications and proposals that we look at. One kind is for the development of a specific building or maybe a couple of buildings together, and there you have a developer who you can talk about, who his contractor is, and get a lot of detail.

In other TIP proposals, we deal with a region or a broader area than just a building. For example, in the - what do we call it, the Grand Center. I guess we call it the Grand Center. That is a regional TIP and it was adopted several years ago, as opposed to a single building.

*

*

*

The choice - I mean, I think it's three or four years ago, we did the Grand Center. Just recently, they

... finished a building and that all gets the TIP financing, and there are other buildings in Grand Center that aren't done yet, and we understand under those circumstances that what you can say about the financing is less definite that what you can say when it's a given building and somebody is giving a definite amount or a definite lending and financing plan.

(10/29/09 Tr. 108-9).

In the regional context, Chairman Newburger explained, the TIP Commission

does not expect to see a firm commitment:

No TIF project ever has a firm commitment in the sense of a bank commitment, and the reason for that is that the financial institutions are sitting on the side and they're not going to make a commitment until they know what other incentives are in place so that they understand what the value is, so what we do is that we say - we make certain assessments about what the financing is going to be.

We approve the TIP for a maximum amount against that overall view of the project, but what ultimately resolves what the amount of the TIP is comes several steps down the process ....

[d., at 110-11.

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The Northside plan contemplates the redevelopment of 1500 acres over a 23 year

period at a total cost exceeding $8 billion. Every witness asked agreed that it would not be

commercially reasonable to expect any lending institution to issue a firm commitment, on day

one, to lend $8 billion toward the redevelopment project-not because the project was not

feasible, but because no one could predict the evolution of economic conditions or the

redevelopment plan over its 23 year life (10/29 Tr. at 145-46, 159-60 (Griffin) and 110-11 (Newburger); 2/25 Tr. at 104 (Eckelkamp); 3/4 Tr. at 312 (Caplin».5

This, we understood from the very beginning, the plan says it's a twenty-three-year plan and it's proposed in phases, so we weren't looking for-you can't show us the day you're going to have financing, whether you need financing for the whole thing, plus you have to be creative, especially in today's market, with the way you get projects financed anyway, and we know that from some of our other projects so it was-we were looking to make sure that they were leveraging everything, including from the City, from the State, any stimulus money that they might be receiving,

you know, any equity that they had in terms of their property."

(lO/29 Tr. 160 (Griffin». Accord, Devanssay v. McGuire, 622 S.W.2d 323,327 (Mo.App. RD.

1981)("in this economic period it would be nearly impossible to delineate with particularity the

precise sources of financing").

The Redevelopment Plan thus appropriately references various sources of

financing for phases A-D:7

5 Even Professor Boldrin appeared to agree: "If Citibank did that-all right, you know where I'm going-it would be considered ridiculous, so it's just something that makes no sense. No serious bank would look at that and say, yeah, they're going to do that" (2/16 Tr. 74-75). Neither Professor Boldrin nor any other witness testified that it was reasonable to expect any lender to issue a firm $8 billion loan commitment for the project.

6 Alderperson Griffin also reviewed feasibility and market studies well beyond those typically submitted in connection with TIF applications, which indicated a superior level of investment and commitment. Id., at 159.

7 Chairman Newburger testified that paragraph referred to financing for all phases of the redevelopment project (10/29 Tr. 67). Contrary to Plaintiffs' contentions, it is only the Bank of Washington's letter that is, by its terms,

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Appendix B contains a commitment letter from the Bank of Washington to provide financing for RP A A and RP A B. Said commitment letter will be supplemented when subsequent Redevelopment Projects are approved. The Developer also commits to finance Redevelopment Projects Costs through a combination of equity, conventional financing, and TIP Obligations that would be purchased or privately placed by the Developer.

(lEx. 4 at 32). The Plan also references Distressed Area Land Assemblage Tax Credits," historic

tax credits, Brownsfield tax credits, new market tax credits and potential cm and TDD revenues

as sources of funds. ld.

Appendix B contained a letter from the Bank of Washington committing to

finance RP A A and B provided the Board approved TIF financing. The Bank's letter, and its

stated condition of TIP financing, is typical of those submitted in connection with TIP

applications in the City (10129 Tr. 110, 115). However, the Bank's letter was different from

most in one important respect-it followed an existing loan of nearly $30,000,000 (10/29 Tr.

116, 160-61). The Bank's Executive Vice President testified that his letter was far more than an

"empty promise," as characterized by Plaintiffs:

Q: (by Mr. Amon) The letter that you provided for this particular redevelopment plan, is this a firm commitment?

A: I think that it's a firm commitment from the perspective that we were already $28 million into the deal.

Q: And that's what that refers to?

A: No. It's a reiteration of our commitment and, again, as I said before, we continued to finance since we wrote this letter. There's been loan pay-offs and

limited to RPA A and B.

8 The Circuit Court of Cole County recently upheld the constitutionality of these credits.

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we've continued to make additional loans. I made a loan two weeks ago in this.

(21251 Tr. at 106). The Bank's involvement followed the historical (and anticipated future)

incremental investment by the developer and its lender. Id., at 98-99. See also, 3/4 Tr. 312

(Caplin).

The City also looked beyond the Bank's letter and the representations contained

in the Redevelopment Plan. Both the Commission and the Board considered Paul McKee's

existing investment in the redevelopment area as further evidence of the financing commitments,

described by Chairman Newburger as "a considerable equity bundle and much more that we

would ordinarily see" (10/29 Tr. 116~ see also 10129 Tr. 158-59 (Griffin testimonyj)." As

indicated above, the Board made sure that the redeveloper was "leveraging everything,"

including all subsidy and property within the redevelopment area.

The first case to deal with the sufficiency of financing was Parking Systems, Inc.

v. Kansas City, 518 S.W.2d 11 (Mo. 1974), in which the Supreme Court addressed the

sufficiency of a plan approved under a Kansas City ordinance requiring "a determination by the

City Council that 'sufficient funds or securities are immediately available and will be used for

normal financing of the entire development." Id., at 16 (emphasis added). Much the same as

here, the challenging party complained that:

(a) The only entity to furnish funds was the Redevelopment Corporation, a "shell" corporation with a deficit; (b) The Redevelopment Corporation is excused from performance in the event it cannot obtain financing satisfactory to it; (c) No person or entity other than the Redevelopment Corporation was committed to furnish funds except

9 Intervenors remark that Bank considered the real estate "secondary collateral" behind Mr. McKees personal guarantee (l.Br. 20, 23). Northside frankly does not understand why the Bank's characterization of its collateral package has any relevance to whether the Board or Commission appropriately considered this unique and substantial investment as part of the financing commitments.

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Durwood, Inc. which was to furnish $434,000 for the cost of demolition; (d) The City relied on letters from banks addressed to Stanley Durwood, Durwood, Inc., indicating that the banks would make loans if "adequate collateral" was furnished, but the City made no investigation as to what constituted adequate collateral; (e) The only letter concerning availability of funds for construction of improvements was "from Fred Brady to Stanley Durwood, President of Durwood, Inc., indicating that many of their institutional investors would be interested in lending money," and the City "did not regard this as a commitment;" and (f) Durwood, Inc. was "not in a financial condition to furnish funds or collateral to finance the demolition and funds which, when added to the land in the project area, would be sufficient to borrow additional funds to finance even the cost of acquisition of the property in the project area."

!d., at 17.

The Supreme Court held that, even under the stringent language of the ordinance,

the redeveloper need not prove that it has "the required amount of money in the bank, or a

sufficient amount of securities in hand," Id., at 19. The Supreme Court held that the sufficiency

of the financing was at least debatable, citing the following testimony that parallels the evidence

in this case:

A. The requirements that the Council made over and above the requirements of the statute were that we be satisfied that the applicant at least had the ability to acquire the land and clear the blight in question and that could have been, that information could have been supplied a number of different ways. I suppose if they had a pile of money on the table that would have satisfied me. In this case letters of commitments and other evidence was supplied that eventually was satisfactory.

Q. There never was any evidence submitted that they had the cash on hand, available to acquire the land and clear the blight?

A. No, I think not

Q. So, in fairness when you get down to it, in this particular

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case, it was the letters from the banks, was it not that calmed any doubts that you had?

A. No, it was a combination of what was presented * * * which included letters from banks. It included appraisals of the relative value of the land and the cost to clear the blight therefrom and it included what amounted to some live testimony at hearings before the Committee and eventually one hearing before the City Council and as I [said] in all honesty it was a combination of all those items that finally convinced me that this applicant did meet the test as required by the ordinance.

Id., at 21-22.

Plaintiffs rely principally upon the Eastern District's opinion in Maryland Plaza

Redev. Corp. v. Greenberg, 594 S.W.2d 284 (Mo.App. E.D. 1979). In Maryland Plaza, against

an ordinance requiring a detailed statement of the proposed method of financing, the redeveloper

refused to identify its lending sources and submitted a plan supported by its bare representation

that "[a]t the present time it is contemplated that debt financing will be on a structure-to-structure

basis." Maryland Plaza, 594 S.W.2d at 289. The court contrasted its situation with Parking

Systems, and the testimony quoted above. The Eastern District has questioned the reach of

Maryland Plaza in its later decisions.

In Devanssay v. McGuire, 622 S.W.2d 323, 327 (Mo.App. E.D. 1981), the

Eastern District stated that "[ w]e do not read Maryland Plaza to impose any particular

requirements on the statement of financing or to hold that the validity of the Board's action can

be determined only from the information contained in the financing section of the plan or only

from the body of the plan itself." The Court found it could "presume a certain expertise in the, ..

Board of Aldermen of the potential of financing in the City of S1. Louis and through

governmental agencies." Id., at 328. See also, Tierney v. The Planned Ind. Expansion Auth. of

Kansas City, 742 S.W.2d 146, 153 (Mo. 1987)("The holding [in Maryland Plaza] has perhaps

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been somewhat qualified in [Devanssay], which appears to relax the requirements for detailed

financial information, and holds that the legislative body's conclusion that adequate information

has been furnished is entitled to substantial weight").

Northside has not located any cases construing §99.81O.1's requirement that a

plan must include "evidence of the commitments to finance the project costs" or any case law

addressing the significance of the fact that such evidence is not a precondition to approval of a

plan. Nevertheless, the evidence in this case fits squarely within that found sufficient in Parking

Systems, where the ordinance did require a municipal determination that "sufficient funds or

securities are immediately available" to finance the project.

Further, the discretion afforded the Board would mean little if the Board could not

assess the adequacy of the plan in context of its scope and duration. While it might be

reasonable to expect something approaching a firm, all-encompassing commitment to finance the

redevelopment of a single building, it is not commercially reasonable to expect any financial

institution to commit to a 23 year, $8 billion loan covering the redevelopment of 1500 acres.

Even Professor Boldrin, whose colorful testimony included a critique of the financing

commitments, limited himself to just that--criticism. He did not suggest any alternative, despite

his reputed position as advisor to national and international financial institutions.

In absence of such evidence, it is, at the least, fairly debatable that Northside's

plan demonstrated the necessary evidence of financing commitments.

C. The Board's Approval Of The Ordinances Was Supported By Substantial Evidence That The Redevelopment Area Was Blighted.

Section 99.805(1) provides:

(1) "Blighted area", an area which, by reason of

the predominance of defective or inadequate street layout, unsanitary or unsafe conditions, deterioration of site improvements, improper subdivision or obsolete platting,

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or the existence of conditions which endanger life or property by fire and other causes, or any combination of such factors, retards the provision of housing accommodations or constitutes an economic or social liability or a menace to the public health, safety, morals, or welfare in its present condition and use; (emphasis added)

In short, "[a]n area is blighted if the 'predominance of an enumerated factor or

factors leads to any of the enumerated resulting circumstances, all of which must be considered

in light of the area's 'present condition and use. '" Great Rivers Habitat Alliance v. St. Charles

County, 246 S.W.3d 556,561 (Mo.App. W.D. 2008). In what is an important point lost on

Plaintiffs, the Court must view the redevelopment area as a whole when assessing blight:

School District claims that the City's findings of defective or inadequate street layout are almost exclusively confined to the portions of the Redevelopment area that are scheduled to be developed in Phases I and II of the Redevelopment Plan, and that the findings as to the improper subdivision or obsolete platting factor apply exclusively to Phase II of the Redevelopment Plan, and that the lack of water and sanitary sewer systems and dumping of trash is confined to the Wallach Farm portion of the Redevelopment Area.

Such piecemeal analysis of the Redevelopment Area as a whole is not contemplated under the statute. School District's argument fails to analyze the Redevelopment Area as a whole, which is required by the statute. See Section 99.810.1(1). School District improperly divides the whole Redevelopment Area into separate parcels to bolster its argument that the City'S findings of blight are factually unsupported.

Meramec Valley, supra, 281 S.W.3d at 836-37 (emphasis added). The area may include property

that, standing alone, is not blighted, but which is necessary to the overall redevelopment project.

Centene Plaza Redev. Corp. v. Mint Properties, 225 S.W.3d 431,435 (Mo. 2007).

The Board appropriately concluded that the redevelopment area was blighted.

Development Strategies' blighting analysis (LEx. 6) provided comprehensive support for the

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Board's finding. Development Strategies' report incorporated Cole & Associates' parcel by parcel analysis (D.Ex. L) and Environmental Operations, Inc.'s preliminary environmental assessment (I.Ex. 6A), and presented a comprehensive and objective evaluation of the redevelopment area.

Intervenors' attempts to isolate individual areas, properties or elements within the study not only constitute impermissible attempts to assess the area piecemeal, they sometimes are nonsensical. For example, Intervenors complain that Development Strategies and Cole & Associates evaluated sidewalk conditions by looking at the sidewalks (LBr. 25), which frankly seems like a pretty good way to do it. Intervenors posit that "vacant property that is not being used for any purpose cannot be inadequate for its current use (or non use)" (LBr. 26). This logic would, of course, hold true for vacant buildings and homes, making it virtually impossible to blight anything anywhere.

Even if the Court did not have the benefit of Development Strategies' report (which Intervenors introduced), the Court should affirm the Board's conclusion based upon Intervenors' other evidence alone. Eighty-five percent of the redevelopment area falls within the 5th Ward, "probably the poorest part of the City of St. Louis," according to Professor Boldrin (2/16 Tr. 37). Intervenors introduced the 5th Ward Plan (LEx. 10), which catalogues the very same conditions reported nine years later by Development Strategies--deteriorated buildings (2- 6, 2-7), deteriorated streets (2-9), inconsistent land uses (2-12), asbestos contamination (2-15), lead paint contamination (2-16), and other environmental concerns, including superfund sites (2- 18,2-21). In truth, blight should never have been an issue in this case-"it is dear to me, and I think to anybody that looks at that area, that it is blighted" (3/3 Tr. 243-44 (Geisman)).

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D. The Board's Approval Of The Ordinances Was Supported By Substantial Evidence That The Redevelopment Area Has Not Been Subject To. Growth And Development Through Private Enterprise And W ould No.t Reasonably Be Anticipated To. Be Developed Without The Ado.ption Of Tax Increment FinancingL(the "but for" test)

Under §99.810.1(3), the Board may approve a redevelopment plan if it concludes

that the redevelopment area "(1) has not been subject to growth and development through

investment by private enterprise and (2) would not reasonably be anticipated to be developed

without the adoption of tax increment financing" (numbers added). Similar to the blighting

analysis, the but for test contemplates, in fact requires, that the Board consider the potential for

growth in the redevelopment area as a whole-isolated pockets of progress do not satisfy the

test:

Moreover, in giving plain meaning to the TIP statute, Board was to consider the "redevelopment area on the whole" in making its blighting and but-for analysis. Thus, Board was to consider the entire redevelopment area in determining whether it would be developed without TIP. Board was not to focus on piecemeal or sporadic redevelopment on only portions of the redevelopment area. As illustrated in the next subpoint, the evidence presented created a debatable issue as to whether TIP was necessary for redevelopment.

JG St. Louis West v. City of Des Peres and West County Center, LLC, 41 S.W.3d 513, 521

(Mo.App. E.D. 200l)(first emphasis in original). See also, Meramec Valley, 281 S.W.3d at 838

("The plain words of the TIP statute do not permit the piecemeal examination of the entire

Redevelopment Area when applying the but/for test, or the blighting analysis, for that matter").

The Court makes its own "independent determination of whether the legislative body's decision

was fairly debatable." Meramec Valley, 281 S.W.3d at 538.

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1. The redevelopment area has not been subject to growth and development through investment by private enterprise

The history of this redevelopment area demonstrates a lack of consistent or

comprehensive development absent subsidy. The 5th Ward plan (lEx. 10) pointed out that:

The Fifth Ward has been the subject of many planning and redevelopment efforts over the course of several

decades ... [S]ome initiatives in this area have never been realized or have only had components of the overall project implemented. (2-22)

Development Strategies' blight study affirmed that "[t]he Redevelopment Area

has experienced significant disinvestment for many decades" and that "little has changed in

many portions of the Redevelopment area over the last 40 years" (l.Ex. 6 at 2; see also LEx. at 4-

6). That has been the experience of those familiar with the area. Alderwoman Triplett was

aware of only incremental development on the north side, and pointed out that roughly one-third

of the redevelopment area had previously been blighted (2/25 Tr. 58, 23-24; see also, 3/3 Tr. 77

(25% of the area already blightedjtMarksj), Other witnesses confirmed that there had been little

to no development in the redevelopment area absent subsidy (2/25 Tr. 209, 212,214 (Marks); 3/3

Tr. 76 (Marks); 3/3 Tr. 251 (Geismanj). As Alderman Bosley put it, "Nobody ever came,

period" (2125 Tr. 135).10

Intervenors offered photographs of some activity within the redevelopment area.

President Reed pointed out that many of the Intervenors' examples of sporadic development

themselves benefitted from subsidy (2/25 Tr. at 61-62) and, in fact, some of the photographs

advertised the availability of tax abatement (l.Ex. 11). It is not clear that there has been any

activity in the area absent subsidy. Moreover, Intervenors certainly did not offer any evidence

10 Even Professor Boldrin would not offer an opinion about the likelihood of future development: "How much will take place in the next five or ten years, sir, I don't know" (2/16 Tr. 36).

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analyzing activity in the redevelopment area as a whole as was their burden. The closest

Intervenors came was the sth Ward plan, which confirms the lack of activity and calls for "large

scale planning ideas ... as a catalyst for development" (I.Ex. 10 at 6-1, 6-5, 6-6).

Intervenors' piecemeal analysis fails to raise any legally meaningful issue of fact

or law and, in any event, the Board's conclusion that the redevelopment area has not been subject

to growth and development through investment by private enterprise was supported by

substantial evidence.

2. The redevelopment area would not reasonably be anticipated to be developed without the adoption of tax increment financing

Intervenors bear the burden of proof and must present "concrete evidence that

supported redevelopment in the area without TIF." JG St. Louis, 41 S.W.3d at 520. It is not

enough for Intervenors to simply argue with the Board's conclusions or engage in a battle of

experts:

We acknowledge Plaintiffs' argument that the statements made by City's experts were mere conclusions and not supported by substantial evidence. Independently reviewing the record, we find, however, that the experts provided bases for their opinions and that each had experience in the field of urban planning and redevelopment.

After fully and independently considering all of the evidence and being mindful of our standard of review, it is evident that the but-for test was an issue upon which the experts had differing opinions. To the extent this was a debatable issue upon which Board decided the test was satisfied, this court cannot substitute its judgment for that of Board. Plaintiffs have failed to establish that the decision was arbitrary or induced by fraud, collusion or bad faith. Point two is denied.

JG St. Louis, 41 S.W.3d at 521.

The redevelopment plan explains the need for TIP financing:

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The extraordinary costs associated with land acquisition and public works and infrastructure needed to redevelop the area have made such redevelopment economically infeasible without the use ofTIF. Also, the extraordinary cost of site preparation and environmental remediation are significantly higher than private developers can typically pay to develop residential and commercial property in this market. ... Consequently, an imbalance between expense and revenue is created that makes comprehensive redevelopment economically infeasible unless eligible redevelopment project costs are reimbursed or financed as allowed under the TIP Act.

(LEx. 4 at 6). Larry Marks explained that, while developers expect to absorb costs associated

with typical site work (i.e., grading, etc.), developers do not reasonably expect to rebuild the

entirety of a City'S streets, sewers or other public amenities servicing that site (3/3 Tr, 73).

Those unexpected costs reduce the developer's rate of return below that which might otherwise

justify the enormous investment required under the redevelopment plan (LEx. 4, Addendum B;

3/4 Tr. 274-75 (Caplin».

Intervenors did not dispute that TIF financing was an accepted and appropriate

method of subsidizing the public portion of redevelopment projects. Professor Boldrin agreed

with the use ofTIF financing for streets, sidewalks and other public infrastructure (2116 Tr. 109-

10):

Q: (by Mr. Puricelli) And of that, $345,000,000 is going to be used for public infrastructure, right?

A: That's what it says.

Q: All right. I think you just told me that's a good thing.

A: Yes.

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(2116 Tr, 110 (Boldrin)). Intervenors also introduced the 5th Ward Plan, which indicated that TIF

financing would be the "primary source" of infrastructure improvements (LEx. 10 at 19-4, 19-

23) and reinforced the need and proper use of TIF:

Given the necessity of substantial reliance on incremental tax revenue raised from the new development as the primary revenue source to fund the Ward projects, completion of planned public projects will be a multi-year effort and progress will occur slowly (19-1)

(I.Ex. 10), This is one point upon which Northside, Intervenors and Professor Boldrin agree: It

is not reasonable to expect a redeveloper to bear the financial burden of a complete rehabilitation

of public infrastructure that, under ordinary circumstances, would exist to support a commercial

or residential development.

Most of Intervenors' arguments relating to the second prong of the but-for test are

either simply that-argument without any supporting evidence-or mischaracterizations of the

record.

Intervenors argue that the grant of redevelopment rights will allow Northside to

monopolize development in the area (I.BI. 29). However, the Redevelopment Plan only allows

Northside to redevelop 75% of the area and explicitly recognizes the Board's ability to subsidize

other development in the area (I.Ex. 3 at 13; 3/4 Tr. 253 (Geisman)).

Intervenors argue that Northside's anticipation that the redevelopment will spark a

spike in growth rates has "no foundation in any reality and actual market data" (LBI. 29). Russ

Caplin testified that Northside predicted the spike based upon the market reactions to

redevelopment projects in Chicago, Miami and Denver (3/4 TI. 272-74,281-82). Further,

Intervenors place undue emphasis upon the temporary growth spike. Those spikes are ratcheted

down and ultimately replaced by a 2% growth rate over the life of the project. The more

important analysis compares the ultimate costs with the predicted values over the life of the

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project. The hope in any development project is, obviously, that value will exceed costs.

However, a gross difference might suggest that estimates of one or the other are off base. Here,

without TIF financing, values only marginally exceed costs which demonstrates that the

predicted growth rates are, if anything, conservative (3/4 Tr. 274, 287).

Intervenors argue that Development Strategies' 2008 market study is

"meaningless" (LBf. 30). The study is, as the Court will note, comprehensively documented and

scholarly. With the exception of Professor Boldrin's "back of the envelope" guesses, Intervenors

did not submit any competing vision of the St. Louis market.

Intervenors argue that, to the extent that Northside uses land assemblage tax credit

proceeds to pay down Bank of Washington debt, the proceeds will not benefit RP A C or D (LBf.

30). The argument ignores the fact that the lions' share of the Bank of Washington loans

represented land acquisition costs, a substantial portion of which financed the acquisition of land

in RPA C and D (lEx. 3 at Ex. I (listing of developer-owned properties)).

Intervenors assert that Northside's financial projections "show no rate of return"

and that Mr. Caplin "admitted" that return on cost is not a proper way of assessing the rate of

return on development projects. First, Mr. Caplin testified that the projections do allow a

calculation of the return on equity (3/4 Tr. 298, 311). The fact that the calculation is not obvious

to Plaintiffs' counsel is not important to the Court's analysis. Mr. Caplin did not "admit" that

return on cost was not an appropriate measure. To the contrary, he confirmed that the return on

costs is an accepted and important test of development feasibility (3/4 Tr. at 274-75, 294).

E. The Board's Approval Of The Ordinances Was Supported By Substantial Evidence That The Redevelopment Plan Conformed To The City's Comprehensive Land Use Plan (I.Br. 31-36; A.P.Br. 21-24)

Section 99,810.1(2) requires the Board to find that "[tjhe redevelopment plan

conforms to the comprehensive plan for the development of the municipality as a whole."

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Conforms means "to be in agreement or harmony." City of St. Charles v. Devault Management,

959 S.W.2d 815,824 (Mo.App, E.D. 1997)

Chapter 99 does not define "comprehensive plan." The Missouri courts generally

refer to Chapter 89, which governs city planning commissions. Section 89.340 authorizes the

City Planning Commission to adopt a city plan:

The commission shall make and adopt a city plan for the physical development of the municipality. The city plan, with the accompanying maps, plats, charts and descriptive and explanatory matter, shall show the commission's recommendations for the physical development and uses of land, and may include, among other things, the general location, character and extent of streets and other public ways, grounds, places and spaces; the general location and extent of public utilities and terminals, whether publicly or privately owned, the acceptance, widening, removal, extension, relocation, narrowing, vacation, abandonment or change of use of any of the foregoing; the general character, extent and layout of the replanning of blighted districts and slum areas. (emphasis added)

Section 89.360 acknowledges that the plan should and will evolve with the

changing demands of the municipality: "The commission may adopt the plan as a whole by a

single resolution, or, as the work of making the whole city plan progresses, may from time to

time adopt a part or parts thereof. any part to correspond generally with one or more of the

functional subdivisions of the subject matter of the plan." A city's comprehensive plan need not

be a single document. State ex rel. Westside Development Co., Inc. v. Crist, 935 S.W.2d 634,

640 (Mo.App, W.D. 1994).

For planning purposes, the planning commission may build flexibility into the

plan using terms such as "flexible guideline" and the like, and the Court will honor the

commission's directive, City of St. Charles v. Devault Management, 959 S.W.2d 815,823

(Mo.App. E.D. 1997), citing Treme v, City of St. Louis, 609 S.W.2d 706 (Mo.App. E.D. 1980),

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The City adopted a comprehensive plan in 1947. Mayor Slay recognized that the

plan was out-dated and commissioned a community development block grant for the creation of

a modern land use plan (3/4 Tr. 252 (Geismanj). As a result of that effort, on January 5,2005,

the City Planning Commission adopted a Strategic Land Use Plan for the City of St. Louis

(D.Ex. K; 3/4 Tr. 252 (Geisman). In its preamble, the Strategic Land Use Plan stated:

In 1947, more than fifty years ago, the City of St. Louis adopted a land use plan. The City has been living with this out dated land use plan ever since.

Now, the City'S Planning and Urban Design Agency is proposing a new land use plan.

*

*

*

Adopted by the City's Planning Commission on January 5, 2005, this straightforward Land Use Plan will become the basis for additional planning and development initiatives involving collaboration between elected officials, City departments, neighborhood residents and developers, to overlay more fine-grained visions of the broader framework presented by this Plan. (emphasis added)

The Strategic Land Use Plan indicated that prior neighborhood plans, like the 5th

Ward Plan, "have been taken into account in preparing this broader-level Land Use Plan." The

Strategic Land Use Plan provides: "This Plan, like the City itself, is not a static object. Rather,

it is intended to provide a foundation and a roadmap for positive change."

Since its adoption, the City has referred to the Strategic Land Use Plan in

connection with TIF and other redevelopment projects (2125(1) Tr. 19,2/25(2) Tr. 18-19

(Triplett); 2/25(2) Tr. 206, 207, 3/3 Tr. 68 (Marks); 3/3 Tr. 252, 254 (Geismanj).

The Redevelopment Plan provides that it COnfOlTIlS to the Strategic Land Use

Plan, as does the Board's enabling ordinance (I.Ex. 4 at 10; LEx. I at 3)Y The Amon Plaintiffs

II Intervenors assert that there is no record that the City Planning Commission reviewed Northside's plan for

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argue that some other language or finding was necessary, apparently suggesting that the Board

had to layout the details of its comparison between Northside's plan and the Strategic Land Use

Plan (A.P. 22, 23). There is no such requirement in the statute. The Redevelopment Plan

contains a description of its projects and a land use plan that, in fact, are in agreement and

harmony with the flexible guidelines of the Strategic Land Use Plan (I.Ex. 4 at 20; 3/3 Tr. 68-69

(Marks». Neither Intervenors nor Amon Plaintiffs argue to the contrary.

F. The Board's Approval Of The Ordinances Was

Supported By A Cost Benefit Analysis That Satisfied §99.810.5

Section 99.810.1(5) provides that the Board must find that a redevelopment plan

includes:

(5) A cost-benefit analysis showing the

economic impact of the plan on each taxing district which is at least partially within the boundaries of the redevelopment area. The analysis shall show the impact on the economy if the project is not built, and is built pursuant to the redevelopment plan under consideration. The costbenefit analysis shall include a fiscal impact study on every affected political subdivision, and sufficient information from the developer for the commission established in section 99.820 to evaluate whether the project as proposed is financially feasible;

Northside has found no case law interpreting the requirements of §99.81O.1(5).

Northside submitted Development Strategies' Cost-Benefit Analysis to the TIP

Commission and Board (I.Ex. 8). The Cost-Benefit Analysis indicates that

These projections are for a concept that is not yet constructed or leased and for a use that is new to this market. In order to project the performance of the Projects, assumptions must be made regarding future events, such as assessment values, tax rates, project build-out, and/or

conformance with the Strategic Land Use Plan (I.Br. 33). That is not true. Intervenors examined Alderperson Griffin on the topic, who testified that the City Planning Commission reviewed Northside's plan (3/3 Tr. 189). Intervenors also assert that Alderperson Triplett testified that the Strategic Land Use Plan did not constitute the City'S comprehensive plan. Again, not true. See 2/25(1) Tr. 19,25.

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absorption. These projections are based on currently available information and assumptions, including the Developer's pro forma, in order to build a cost benefit model.

(I.Ex. 8 at 1-2). Development Strategies has worked on approximately thirty TIP projects in the

metropolitan area, ten of which were City projects (3/3 Tr. 67). Development Strategies

prepared its Cost Benefit Analysis consistent with the analyses presented in connection with

those projects (3/3 Tr. 102).12 Development Strategies based its assumptions upon, among other

things, their 2008 market study (D.Ex. M), meetings with City officials (3/3 Tr. 71-72,103),13

and meetings with Northside's redevelopment team (3/3 Tr. 71 (Marks); 314 Tr. 263, 267

(Caplin».

The Cost Benefit Analysis described the economic impact on the respective

taxing districts under the build and no build scenarios by projecting the expected real estate tax,

PILOTs and EATs revenues for each under both scenarios (I.Ex. 8 at 3-10; 2/26 Tr. at 218-20,

223-26). That is, of course, the measure of profitability for a taxing district. Intervenors

complain that the Cost Benefit Analysis does not factor in "displacement costs" (LBr. 36).

Marks explained that Northside's plan considers existing business "an anchor you want to build

from" and that the influx of new uses would make up for any incidental displacement of existing

uses (2/26 Tr. 231, 232).

Intervenors also complain, based primarily upon Professor Boldrin's testimony,

that Northside's and Development Strategies' projections are not credible (IBr. 36-37).

Development Strategies' market study is a comprehensive, detailed document (D.Ex. M). Even

12 Despite their criticisms of Development Strategies' Cost Benefit Analysis, neither Intervenors nor Amon Plaintiffs offered any expert or lay testimony concerning the proper format or contents of a §99.810.1(5) cost benefit analysis. Professor Boldrin spent about an hour reviewing the Cost Benefit Analysis (2116 Tr. ] 01) and did not see fit to prepare his own. Apparently, that is the work of investment bankers, not economists (2/16 Tr. 104).

13 These meetings actually led to changes in some of the absorption rates (3/3 Tr. 103).

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so, Northside and Development Strategies modified some of their assumptions after consulting with the City (3/3 Tr. 103). In contrast, Professor Boldrin incorrectly assumed that Development Strategies had not performed any market study (2/16 TL 38). He did not perform his own market analysis (or any substantive analysis, for that matter), instead offering only his "back of the envelope" calculations (2/16 Tr. 39, 49). As indicated, Professor Boldrin did not understand Northside's plan or the TIF statute and (correctly, in Northside's estimation) conceded that "Now, again, I may be wrong" (2116 Tr. 40). Professor Boldrin's unsubstantiated musings hardly count for much, especially considering that the Court would have to affirm the Board's conclusion even if Professor Boldrin had done the work necessary to present an "issue upon which the experts had differing opinions." JG St. Louis, 41 S.W.3d at 521.

Both Intervenors and Amon Plaintiffs take issue with Northside's projections attached to the Cost Benefit Analysis as Addendum B (I.Br. 39-41; A.P. Br. 26-28). Mr. Caplin laid out the bases for his assumptions and that testimony stands as the only, substantial, uncontroverted evidence on the issue. Although Plaintiffs questioned the projected growth and absorption rates, they did not present any alternative assumptions or any authoritative materials undermining Caplin's analysis or approach. Plaintiffs' counsel apparently disagree with Caplin's numbers, but, again, that fails to even raise an "issue upon which the experts had differing opinions." JG St. Louis, 41 S.W.3d at 521.

Intervenors renew their assertion that "[t] Return on Cost analysis shown is analytically meaningless, since the actual return depends on the amount of the developer's investment - which is not disclosed" (lBr. 40; see also A.P.Br. 25-6). As already indicated, this is wrong on two counts. The projections do allow a calculation of the return on equity (3/4 Tr. 298, 311). Further, return on cost is an accepted presentation in the development community and

- 30-

constitutes an important check on the reasonableness of the value and cost projections. See

discussion supra at 24-25.14

The Board's approval of the Cost Benefit Analysis was supported by substantial

evidence.

G. The Board's Approval Of Tbe Ordinances Was Supported By Substantial Evidence

Of The Sources Of Funds To Pay Costs (A.P. 27N28)

Section 99.810.1 provides that a redevelopment plan must include "the anticipated

sources of funds to pay the costs," Like the financing commitment requirement, §99.81O.1 does

not make the delineation of sources of funds a precondition to the Board's approval of a plan.

Amon Plaintiffs state that, when asked whether the plan contains a description of

the sources of funds, Professor Boldrin testified: "No" (A.P.Br. 27). Professor Boldrin probably

said that (Amon Plaintiffs do not provide a cite to the record). He was, as the saying goes, often

wrong but never in doubt. The Redevelopment Plan describes the sources of funds (LEx A at

32).15

III. THE COURT SHOULD NOT AWARD ATTORNEYS' FEES AND COSTS TO PLAINTIFFS

This case does not present the special circumstances necessary to trigger an award

of attorneys' fees and costs. Plaintiffs' allegations of "intentional misconduct" are nothing more

than a recitation of Plaintiffs' disputed arguments on the merits-this time, complete with

14 Counsel for Amon Plaintiffs adds his own opinion that a developer might expect to receive a 50% return before TIF and 32% after and concludes that TIF is not necessary after all (A.P.Bf. 26). Counsel's opinion assumes a hypothetical "capital investment" that, by his own characterization, is a guess. Further, counsel refers to "leveraged" amounts, which are undefined but apparently different from direct capital infusions. There is nothing in the record to explain counsel's approach or to suggest that counsel's return analysis bears any relationship to the actual finances of the project or reasonable and customary development practice.

15 Addendum B to the Cost Benefit Analysis quantifies the publicly funded sources of funds. As previously indicated, it would not be commercially reasonable to expect a prediction of the precise terms of private financing over the life of this plan. See discussion supra at part LB.

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inflammatory adjectives. Plaintiffs' allegations are offensive and border on libelous. The Court

should not award fees and costs.

By: __ ~~ -+~ __

Paul J. Puricelli 7733 Forsyth, Ste. 500

St. Louis, Missouri 63105 Ph: (314) 721-7011

Fax: (314) 721-8660 pjp@stoneleyton.com

#32801

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CERTIFICATE OF SERVICE

The undersigned counsel certifies that the foregoing was mailed, postage prepaid and emailed on Apri112, 2010 to:

D.E. Amon

3201 Washington Ave. St. Louis, MO 63103

Daniel B. Emerson Assistant City Counselor City Hall, Room 314 1200 Market Street

St. Louis, MO 63103

Eric E. Vickers

7800 Forsyth, Suite 700 St. Louis, MO 63105

W. Bevis Schock

7777 Bonhomme, Suite 1300 St. Louis, MO 63105

James W. Schottel, Jr. 906 Olive, Suite PH S1. Louis, MO 63101

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