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TIF suit heats up at hearing

Wednesday, March 23, 2011

(Photo)
Monett city officials attended Monday's hearing at the Lawrence County Justice Center on the tax increment financing lawsuit. Shown during a break in the proceedings were, front row from left: attorneys Mary Jo Shaney, Christine Busyhead and Kimberley Gale. Back row: City Administrator Dennis Pyle, Mayor Jim Orr, Commissioners Jerry Dierker and Mike Brownsberger. [Times Photo by Murray Bishoff]
Litigation between the City of Monett and county officials over tax increment financing (TIF) heated up on Monday as attorneys for both sides faced off for the first time since November. The latest hearing, held in Lawrence County Circuit Court, offered new revelations in the contention that Monett's TIF program is legally illegitimate.

Judge Neal Quitno, of Nevada, expected to hear arguments for summary judgment. If there was general agreement on the facts of the case, the judge could rule on major issues and avoid the four-day trial scheduled for April 18. In the course of the nearly four-hour-long hearing, new information surfaced defining the county's case.

Attorney Mary Jo Shaney, from the Kansas City law firm of White Goss Bower March Schulte and Weisenfels, said the City of Monett has been "chasing a ghost" in trying to find out the grounds for the county's claims.

Ivan Schraeder, lead attorney for Lawrence and Barry counties from the Lowenbaum Partnership in St. Louis, got specific in his comments. Schraeder claimed that the comprehensive development plan on which Monett's TIF program is based is not the 1995 study developed by consultant Darrell Gross, but a 1971 plan that projected town development over a 20-year period. Schraeder asserted that Monett's plan was outdated before the first TIF was adopted in 1996 and the plan's conclusions held no foundation.

Citing the ruling in the TIF lawsuit between the town of Shelbina and Shelby County, Schraeder said a TIF cannot use "speculation" but must use "findings" that lead to conclusions. The Monett TIF Commission may have conducted research in the course of making recommendations, but Schraeder said the Monett City Council was obligated to conduct its own research before taking action. Schraeder said there was no foundational information or findings of economic impact attached to city council minutes.

"The statute anticipates two separate findings," Schraeder said. "It doesn't say one rubber stamps the other. The city council copies language of the TIF and made the conclusions their own conclusion."

The Shelbina ruling, Schraeder continued, said a TIF was not allowed to have "aspirational elements," just facts such as a project description and costs. He called language in the Monett documents "futuristic, pie in the sky concepts." Monett's second TIF involving the Lowe's store is different in that it has a specific project detailed and a commitment letter from Lowe's and may have more legitimacy.

Schraeder said the law demands each requirement to be met, not some of them, or the entire TIF is void. The counties had earlier claimed Monett had failed to provide adequate public notice in forming the TIF. Schraeder said documents produced in the discovery process had shown the city met the requirements and the argument was dropped.

Major TIF projects, such as widening Chapell Drive adopted in March 2006 and widening Highway 60, approved in September 2007, constituted amendments to the TIF, Schraeder argued, not sanctioned under parameters laid out in the original TIF. He claimed amendments could not be made the way the city did them.

Moreover, Schraeder said once the Wal-Mart project outlined in TIF #1 had been paid off, the first TIF should have dissolved and the collected tax money returned to the tapped taxing entities. He asserted the city looked for new projects to have an excuse to spend the remaining money.

Monett's defense

Shaney rose to her feet twice during Schraeder's presentation to object to Schraeder introducing new arguments and documents in motions filed with the court in January and in the courtroom. She said that in litigation that has been underway for two years, the late introduction of evidence should not be allowed, let alone arguments made at a hearing for summary judgment on matters already filed.

Judge Quitno said he would note the objections and weigh the evidence accordingly.

The state's TIF law asked for a general description in writing of a redevelopment plan, including estimated costs and anticipated sources of revenue. Shaney said Monett's 1996 redevelopment plan includes an agreement with the Missouri Department of Transportation and the plan to issue bonds for funding. Shaney said the city did what the law required.

Shaney criticized the counties for looking at parts of the TIF process and not the "50,000-foot view" that she referred to as the big picture. She said the counties were marshalling "a drumbeat to second guess all of the decisions that a small town made many years ago."

"Even if a decision is doubtful or fully debatable, you can't undo a decision because you don't like it," Shaney said.

The Merrimac TIF case limited the courts to critiquing administrative decisions, she said. Legislative decisions by cities are presumed to be valid, according to court rulings.

The city requested summary judgment on the grounds that the counties had failed to state their claims as a matter of law or controvert facts laid out in the case.

The judge said he planned to rule on the motions for summary judgment within two weeks. He told both sides to keep their calendars open for a trial.

Other points of argument

* Schraeder argued the original TIF plan called for developing Business Highway 60 around the future site of the Ramey's store, which was not in the city limits at the time and could not be considered in a city TIF.

* Shaney said the counties repeatedly said the city lacked documentation "on the record" as required in the Shelbina case, but the counties would never say what the city lacked. Twelve bank boxes of documents were taken to the counties with all the records and no interest was shown in them.

* The city had asked for a judgment based on the statute of limitations, which gives the counties 30 days to seek relief from the time the TIF is formed. Thomas Stewart, another lawyer with the Lowenbaum Partnership, said the statute of limitations is not triggered until controversy starts. The controversy started when the city sought to collect money from the Barry County 911 sales tax, making the subsequent litigation timely.

* Shaney offered additional arguments on why the city should be allowed to collect a portion of the 911 sales tax in its TIF. She cited the Missouri Supreme Court ruling in the QuikTrip v. Jefferson County case, which said the state legislature had specifically excluded some taxes from collection and did not cite 911 taxes as an exception.

Schraeder said Monett's TIF ordinance made no reference to collecting taxes passed at a later date and could only apply to taxes in existence at the time.

The city's legal team also included Christine Bushyhead from the firm of Mitchell, Kritl and Lieber in Kansas City. Cassville attorney David Cole was present as attorney for the Barry County 911.



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