Before Arnold city officials announced on Aug. 26 that they were abandoning a controversial road project, the city demanded that the Water Tower Place owners drop the lawsuit the company had filed to stop the Arnold Parkway project.
In addition, two Arnold city councilmen were working on legislation that would have allowed residents to vote on whether the project should proceed, and another councilman spoke out against the project.
Stephen Rovak of the Dentons law firm of St. Louis, who is representing the Arnold Retail Corridor Transportation Development District (ARC TDD) sent a letter on Aug. 23 to Caroline L. Hermeling of the Husch Blackwell law firm of St. Louis calling for the Water Tower Place Shopping Center owners to withdraw their lawsuit. Hermeling filed Water Tower’s lawsuit on Aug. 12 in the Jefferson County Circuit Court.
As of Tuesday, the Water Tower lawsuit was still filed in Jefferson County, but City Administrator Bryan Richison said the city had still never received the lawsuit.
Rovak demanded the lawsuit be dismissed immediately and with prejudice, meaning it could not be refiled, claiming the suit is “wrong on the facts” and “wrong on the law.”
Ward 1 Councilman Jason Fulbright, whose ward includes the 38 homes and other businesses that needed to be acquired for the road project, said he and Ward 2 Councilman Brian McArthur were working on a resolution for a ballot measure to ask residents if the city should move forward with the road project if eminent domain was going to be used.
“It is a moot point now, but the people spoke out, and they were definitely heard,” Fulbright said. “People were upset that this was being done, especially without a vote by the people. We understood and agreed.”
Ward 1 Councilman EJ Fleischmann was the first council member to publicly comment on the road project. On his councilman Facebook page, he wrote on Aug. 24 that he would not support the road project because of the potential use of eminent domain.
“I’m proud of the constituents for standing up for something they believe,” he said after Arnold announced it was ending the road project on Aug. 26.
Water Tower lawsuit
Water Tower’s lawsuit says Arnold acted in secret for three years to develop the road plan and acquire property for the project, which the Water Tower owners said is ill-defined and ill-justified.
The lawsuit also says Arnold officials failed to show the need for the road.
Plans for the road project were made public in an Aug. 8 story in the Arnold-Imperial Leader. However, city officials had notified residential and commercial property owners about the plan as early as May, according to the Water Tower lawsuit.
Arnold officials wanted to build the Arnold Parkway – a 2-mile, two-lane road – to connect Hwy. 141 and Richardson Road. They said the road would cost approximately $75 million and would be funded with revenue from the sale of bonds through the ARC TDD.
In order to build the road, the ARC would have needed to acquire a large portion of the Water Tower shopping plaza on Michigan Avenue off Jeffco Boulevard, 38 homes, businesses near Hwy. 141 and a storage facility near Richardson Road.
Water Tower spokesman Lance LeComb said on Aug. 29 that a final decision about whether to continue with the lawsuit had not been made.
“In spite of the city’s announcement, we are not naive enough to believe this matter is over,” he said. “The people and businesses of Arnold need to have ironclad guarantees that city government can never again coerce them through eminent domain.
“What the city’s announcement means for our legal strategy and for our engagement with our neighbors and the broader Arnold community must be thought through to ensure the TDD and the city’s autocratic behavior is stopped for good. When we are ready to share that information, we will do so via the appropriate legal and community channels.”
The letter
Rovak’s letter said the lawsuit has a host of “factually inaccurate allegations.”
The lawsuit argues the proposed project is not allowed because approximately 75 percent of the road is not inside the ARC TDD, because it is an additional project that was not included when the ARC TDD was formed and because the road project was not authorized by the Missouri Department of Transportation, Jefferson County Circuit Court or the ARC TDD property owners who voted to approve the TDD’s formation in 2008.
Rovak said the lawsuit’s allegations are based on a 2007 petition that formed the ARC TDD but was modified in February 2023 when a recording error was discovered in the original filing.
The ballot language that the majority of ARC TDD property owners approved in March 2008 said the sales tax revenue may be used for “other publicly accessible roadways, parking facilities and transportation-related improvements benefitting the District.”
However, when the petition to form the ARC TDD was filed in September 2007 before the vote, it said, “other publicly accessible roadways, parking facilities and transportation-related improvements within the District.”
Arnold city attorney Bob Sweeney said using the word “within” in the 2007 petition instead of “benefiting,” which was on the ballot language, was a mistake and was discovered in 2022 as the city reviewed potential road projects. On Feb. 2, 2023, the change to “benefiting” instead of “within” was approved in Jefferson County Circuit Court.
“It was a drafting error,” Sweeney said. “It wasn’t caught in the original petition. I suspect it was not caught because it wasn’t needed at the time. Everything that was going on was within the TDD, so there was no close look at that. It just didn’t match the ballot language.”
Rovak’s letter also said the lawsuit’s claim that efforts to purchase land for the road project were “ultra vires” (beyond the power) and done in “secret” is nonsense.
He said the Arnold Acquisition Company (AAC), a limited-liability company (LLC), was formed to acquire the land legally, and representatives from the AAC and the Desco Group, which manages the Water Tower shopping plaza, had met and it was clear in those conversations the intent to acquire a portion of the plaza.
“Any limitations regarding public disclosure of contact with your client are only the result of the Confidentiality Agreement required by your client and The Desco Group, which is in their Possession,” the letter said. “As to the other property owners, and other parties, including prospective tenants, there is a record of correspondence which clearly evidences the efforts of the defendants to disclose and discuss the Outer Road Project.”
The letter also calls for the Water Tower owners to retract a statement sent to media members announcing the lawsuit, which Rovak said contained the same false statements made in the lawsuit. He said a community meeting arranged by Water Tower representatives created a “dangerous situation” that led to “threats to persons and property.”
“I am demanding that your clients issue a retraction of that press release and issue a new release that sets out the actual facts with respect to the authority of the ARC TDD and the validity of the Outer Road Project, all with a program of dissemination that will ensure it goes to an audience as wide as the original release itself,” Rovak said in the letter.
Sweeney said if the Water Tower owners do not dismiss the lawsuit, it will cost taxpayers. He said Rovak is being paid with funds collected from the ARC TDD’s 1 percent sales tax and not the city of Arnold.
“This is the kind of public expenditure of limited resources that is a waste,” Sweeney said. “Just doing simple public information research would have prevented (Water Tower’s lawsuit).
“It troubles me that you got a big law firm (Husch Blackwell) taking action that causes public money to be wasted and there are individuals cheering that on. That is so peculiar. You are rooting on these limited funds to be spent.”