Dillard’s makes final argument in mall case

BOULDER – Attorneys for Dillard’s Inc. (NYSE: DDS) filed their closing statement on Monday in the eminent-domain case brought by Longmont officials, contending that the city staff’s admission that blight at Twin Peaks Mall could be cured with the Dillard’s store remaining on the property is grounds for a ruling in favor of Dillard’s.

Also filed Monday was Dillard’s closing statement regarding whether the Longmont Urban Renewal Authority should be granted the title to Dillard’s before a jury sets the price for the property. Both sides also filed arguments regarding when a potential jury trial should take place.

Longmont elected officials, acting as the Longmont Urban Renewal Authority, filed the condemnation case in May in connection with the planned $80 million redevelopment of Twin Peaks Mall after mall owner NewMark Merrill Mountain States was unable to negotiate a deal with Dillard’s. Dillard’s owns its 94,000-square-foot building and seven acres of land and, through a reciprocal easement agreement, holds veto rights to any redevelopment plans.

LURA, which filed its initial closing statement on Aug. 2, is required to file final closing arguments by Aug. 19, at which time Judge D.D. Mallard could rule on whether LURA can take the property by eminent domain, which is the right of a public authority to take property from a private landowner after making appropriate compensation. If the ruling is in LURA’s favor, the judge would also rule whether LURA could take title to the property by Oct. 1.

LURA had asked in its closing statement to take title by Oct. 1 to keep the project moving before tenants begin canceling their leases. A construction loan for redevelopment depends on NewMark Merrill holding title to the Dillard’s property. Once NewMark Merrill receives the loan, LURA has pledged $27.5 million to help with the project.

Should LURA be granted the right to condemn the property, Mallard ruled on Aug. 2 that the amount the city must pay Dillard’s will be determined by a five-day jury trial. LURA argued for a trial the week of either Sept. 23 or Nov. 18, while Dillard’s contended that its legal team would not have time to prepare a case before the week of Dec. 16. Because an agreement wasn’t reached by Monday, Mallard will set the trial date.

In its closing argument Monday, Dillard’s attorneys pointed to the testimony of Brad Power, Longmont director of economic development, in which he acknowledged that there had been discussions with Dillard’s about remaining on its property and that NewMark Merrill’s redevelopment plan to cure blight conditions at the mall could “be implemented with Dillard’s remaining on the property.”

Coupled with similar testimony from NewMark Merrill’s Allen Ginsborg, Dillard’s argued that LURA had not proved a link between curing blight in the area and taking Dillard’s property.

Among Dillard’s other major closing arguments was that the city failed to prove that the property is “being taken without regard to the factors of economic performance and tax revenue enhancement.” Attorneys argued that the city had been exploring ways to mitigate declining tax revenues at the mall since 2006, before there was mention that the area might be blighted.

Attorneys for Dillard’s could not be reached for comment Tuesday, and city of Longmont spokesman Rigo Leal said the city does not comment on ongoing litigation.

NewMark Merrill wants to redevelop Twin Peaks Mall and rename it Village at the Peaks, with opening slated for early 2015. A 100,000-square-foot Sam’s Club and a 30,000-square-foot Whole Foods Market (Nasdaq: WFM) grocery store have signed on to anchor the new shopping center along with a 12-screen Regal Entertainment Group movie theater.

City officials offered to purchase the Dillard’s property for $3.6 million earlier this year, but Dillard’s has requested $5 million. An appraisal done by the city in November valued the property at $3.03 million.

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