Case: 4:11-cv-01648 Doc.

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MISSOURI EASTERN DIVISION
WESTMORELAND REAL ESTATE, L.L.C., WEST MORELAND SERVICE INC. D/B/A GO WEST MART ) ) ) ) Plaintiffs, ) ) vs. ) ) CITY OF ST. LOUIS, MISSOURI, ) MAYOR FRANCIS SLAY, ) ALDERWOMAN DIONNE FLOWERS ) IN THEIR OFFICIAL CAPACITIES, and ) ST. LOUIS DEVELOPMENT CORPORATION ) ) ) Defendants. )

Case No.

COMPLAINT COME NOW plaintiffs Westmoreland Real Estate L.L.C., and West Moreland Service, Inc. d/b/a Go West Mart (hereinafter collectively referred to as Westmoreland), by and through their counsel, and for their cause of action against Defendant City of St. Louis, Mayor Francis Slay, Alderwoman Dionne Flowers, and the St. Louis Development Corporation state the following. Parties 1. Plaintiff Westmoreland Real Estate L.L.C. is and was at all times relevant herein a corporate entity existing and operating under the laws of the State of Missouri and a citizen and resident of the City of St. Louis, which owns property in the City of St. Louis at 6020 N. Broadway.

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2. Plaintiff West Moreland Service, Inc. d/b/a Go West Mart is and was at all times relevant herein a corporate entity existing and operating under the laws of the State of Missouri and a citizen and resident of the City of St. Louis, which operates a gas station and other retail business on the property in the City of St. Louis at 6020 N. Broadway. 3. Defendant City of St. Louis is a governmental entity created pursuant to the laws and Constitution of the State of Missouri, which has under its auspices and control the St. Louis Board of Adjustment of the City of St. Louis and the St. Louis Zoning and Building Commission. 4. Defendants Mayor Francis Slay and Alderwoman Dionne Flowers are officials of the government of the City of St. Louis, who, acting in their official capacities and under color of state law, carried out the actions described herein. 5. Defendant St. Louis Development Corporation is a corporate entity organized pursuant to the laws of the State of Missouri, which carries out its development functions in conjunction with and as an agent for the City of St. Louis (hereinafter SLDC).

Jurisdiction and Venue 6. The court has jurisdiction over this matter pursuant to 28 U.S.C Section 1331, and its power of pendant jurisdiction. 7. Venue is proper under 28 U.S.C 1391 (b)(1) because the defendants are deemed to reside in the District and pursuant to 28 U.S.C. 1391 (c). Venue is also proper because the events giving rise to this action occurred in this District.

FACTUAL BACKGROUND

8. Since 2002, plaintiffs Westmoreland Real Estate L.L.C. and Westmoreland Service, Inc. d/b/a (collectively hereinafter referred to as Westmoreland or Plaintiffs) have owned and operated at 6020 N. Broadway a Mobil retail gas station, a convenience store that serves food, and a car wash, and have operated at that location for over forty years as a family-owned gas station business.

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9. In 2002, plaintiffs were induced by defendants to incur substantial indebtedness with financial and other institutions through defendants providing plaintiffs seed financing to redevelop and remodel the Mobil retail business, and through assuring plaintiffs they would benefit from and be a part of the industrial development the defendants City and SLDC were planning for the area adjacent to plaintiffs business location. 10. In March 2011, plaintiffs were shocked to learn that defendants had entered into an agreement with a developer to construct on the property directly adjacent to plaintiffs Mobil gas station and retail business a Loves Travel Stops & Country Stores - a billion dollar gasoline retail enterprise, which sets its own retail gas prices rather than purchase through a middleman distributor as plaintiffs and most independent gas station owners must with the agreement calling for the defendants to provide $9 million in financing to Loves through issuing New Markets Tax Credits. 11. In April 2011, plaintiffs presented to defendants an expert study called a Site Feasibility Projection Report that had been prepared by the Angevine Company, which concluded that the defendants planned Loves Travel Center Project would realistically put *plaintiffs+ Mobil out of business, and which assessed the value of plaintiffs business and property as in excess of $6 million. 12. In May 2011, defendant SLDC awarded $9 million in federal New Market Tax Credits to Loves Travel Stops & Country Stores. 13. In May 2011, defendants deliberately failed to provide plaintiffs notice of a May 25, 2011 hearing called by the Citys Board of Adjustment to consider the recommendation of the City Zoning Department that a zoning permit for the Loves Travel Center Project be denied, and although defendants had expert findings and knowledge of the deleterious economic impact the Loves Project would have on plaintiffs business and future livelihood, defendants made an exception to the zoning laws for the Loves Project. COUNT I Due Process Violation

14. This court has jurisdiction pursuant to 42 U.S.C. Section 1983.

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15. Plaintiffs reallege and incorporate herein by reference paragraphs 1 through 13 of this Complaint. 16. The decision of the defendant Citys Board of Adjustment to grant an exception to the zoning ordinances for the Loves Travel Center Project, and the failure to give notice to Plaintiffs of the May 25, 2011 hearing of the Board of Adjustment was in violation of plaintiffs property rights under Section 89.100 Mo. Rev. Statutes, and his due process rights under the Missouri and United States Constitutions. 17. The defendants acted deliberately and with indifference to plaintiffs rights in deciding to provide development rights and financing to Loves Travel Stops & Country Stores, and to except them from the zoning laws. 18. Defendants actions have caused Plaintiffs damages, including loss of business profits.

COUNT II Fifth Amendment Taking Violation 19. This court has jurisdiction pursuant to 42 U.S.C. Section 1983. 20. Plaintiffs reallege and incorporate herein by reference paragraphs 1 through 13 of this Complaint. 21. Because the Loves Project will cause a complete diminution In the value of plaintiffs business and property, the defendants financing and granting a zoning exception for the Loves Travel Center Project constitutes a taking of plaintiffs property valued at in excess of $6 million - without just compensation in violation of his rights under the Fifth Amendment to the United States Constitution. COUNT III Missouri Constitution Taking Violation 22. This court has jurisdiction pursuant to its power of pendant jurisdiction. 23. Plaintiffs reallege and incorporate herein by reference paragraphs 1 through 13 of this Complaint. 24. Because the Loves Project will cause a complete diminution In the value of plaintiffs business and property, the defendants financing and granting a zoning exception for the Loves
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Travel Center Project constitutes a taking of plaintiffs property valued at in excess of $6 million - without just compensation in violation of his rights under Article I Section 26 of the Missouri Constitution. COUNT IV National Environmental Policy Act Violation 25. This court has jurisdiction pursuant to 42 U.S.C. Section 1983. 26. Plaintiffs reallege and incorporate herein by reference paragraphs 1 through 13 of this Complaint. 27. The defendants have granted a zoning exception for the Loves Travel Center Project and sanctioned the development of the project without obtaining either an Environmental Assessment or an Environmental Impact Statement as required by 42 U.S.C. Section 4321 et seq., known as the National Environmental Policy Act of 1969. 28. The Loves Travel Center Project presents grave environmental concerns due to the planned placement of substantial underground gasoline tanks in close proximity to Interstate 70, and the relocation of a salvage facility without any testing performed by defendants for toxic materials. 29. The defendant City of St. Louis Zoning Department determined that the Loves Project violated the zoning laws designed to protect the health and safety of city residents.

COUNT V New Markets Tax Credit Statute Violation

30. This court has jurisdiction pursuant to 42 U.S.C. Section 1983. 31. Plaintiff realleges and incorporates herein by reference paragraphs 1 through 13 of this Complaint. 32. The New Markets Tax Credit enacted as part of the Community Renewal Tax Relief Act (P. L. 106-554) was designed to stimulate economic development in low-income communities through, among other things, providing a federal tax credit for investment in low-income community businesses.
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33. The $9 million in New Market Tax Credits defendants have caused to be issued to Loves Travel Shops & Country stores is in violation of the provisions of P. L. 106-554, because, among other things, Loves revenues cause it to not qualify as a qualified active low-income community business under Section 45D of the Community Renewal Tax Relief Act of 2000.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray this Court for a judgment against all defendants as to Counts I through V, together and separately, in a sum in excess of Fifty-Thousand Dollars ($50,000.00); punitive damages according to proof; injunctive relief under the National Environmental Policy Act and the P.L. 106-554; and for the costs of Court, prejudgment and post judgment interest allowed by law, attorneys fees and for such additional relief as this Honorable Court deems just and proper under the circumstances.

Respectfully submitted, ______________________ Eric E. Vickers #31784 1100 Wyoming St. Louis, Mo. 63118 (314) 420-8700 (314) 875-0447 fax eric_vickers@hotmail.com Attorney for Plaintiffs