DISTRICT COURT, BOULDER COUNTY, COLORADO 1777 6th Street Boulder, Colorado 80302 303-441-3750 Petitioner:

LONGMONT URBAN RENEWAL AUTHORITY

v. Respondents:

DSS UNITER, LLC; DILLARD’S PROPERTIES, INC.; DILLARD TEXAS SOUTH, LLC; EPC TWIN PEAKS, LLC; EPC TWIN PEAKS JJ, LLC; DM PROPERTY INVESTMENTS, LLC; THOMAS PROPERTIES DE, LLC; PINTAR INVESTMENT PROPERTIES DE, LLC; BUCK CO, LLC; VAN VALKENBURGH INVESTMENTS, LLC; JAMES F. JORDAN AND SUSAN RUTH JORDAN, CO-TRUSTEES OF THE JORDAN REVOCABLE TRUST (DATED APRIL 5, 2004); CONDEV WEST, INC. n/k/a DILLARD STORE SERVICES, INC.; STATE OF COLORADO; PUBLIC SERVICE COMPANY OF COLORADO; BOB HULLINGHORST, in his official capacity as Treasurer of Boulder County

Attorneys for Petitioner:

Robert R. Duncan, No. 5733 Donald M. Ostrander, No. 12458 James Birch (Special Counsel), No. 15899 Duncan, Ostrander & Dingess, P.C. 3600 S. Yosemite Street, Suite 500 Denver, Colorado 80237 Phone Number: 303.779.0200 Fax Number: 303.779.3662 E-mail: dodpc.@dodpc.com

COURT USE ONLY Case No. 2013-CV-30828 Division: 3

PETITIONER’S CLOSING ARGUMENT REGARDING JULY 25, 2013 HEARING

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TABLE OF CONTENTS

I. THE TASKS BEFORE THE COURT. 1

II. LURA’S AUTHORITY TO CONDEMN. 2

III. THE PUBLIC USE REQUIREMENT. 4

IV. GOOD FAITH NEGOTIATIONS BY LURA. 4

V. BLIGHT ISSUES. 7

A. Failure of Dillard’s to Timely Challenge the Blight Findings. 7

B. Dillard’s Claims Based on Bad Faith and Sham Must Fail. 8

C. The Extensive Experience of Those Who Conducted the Blight Study.

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D. The Blight Findings Regarding the Urban Renewal Area. 10

E. The Blight Findings Regarding the Dillard’s Property. 11

F. Dillard’s Absolute Veto Power Under the Reciprocal Easement Agreement (the “REA”).

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G. Marketability. 14

H. To Support Its Argument That the 2012 Blight Findings Were Based on Economic or Tax Benefits, Dillard’s Attacks the Activities from 2006 to 2009 Which Did Not Form the Basis for the 2012 Blight Findings.

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I. Providing Sales Tax Information to the County, as Required by Statute, Cannot Constitute Improper Conduct by the City.

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J. LURA Needs the Dillard’s Property to Eradicate Blight. 18

VI. THE IMMEDIATE NEED TO VEST TITLE. 20

VII. THE CONSTITUTIONALITY OF THE VESTING STATUTE. 21

VIII. LOST BUSINESS PROFITS ARE NOT COMPENSABLE IN EMINENT DOMAIN.

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IX. THE LOSS OR GAIN OF EMPLOYMENT IS NOT A RELEVANT OR PROPER CONSIDERATION.

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X. PROCEDURAL ISSUES. 28

XI. CONCLUSION. 28

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Petitioner, Longmont Urban Renewal Authority (“LURA”), by and through its attorneys,

respectfully submits this Closing Argument Regarding July 25, 2013 Hearing.

The Dillard’s entities – Respondents DDS Uniter, LLC; Dillard’s Properties, Inc.; Dillard

Texas South, LLC; and Condev West, Inc. n/k/a Dillard Store Services, Inc. – will be referred to

collectively as “Dillard’s” or “Respondents.”

I. THE TASKS BEFORE THE COURT.

LURA’s Motion for Vesting seeks vesting of title, as well as possession of the Dillard’s

property. Petitioner’s Verified Motion for Vesting at ¶ 6 (requesting “that title be vested as soon

as permitted by law and that it be given possession and use of the Property as soon as permitted

by law”). To accommodate Dillard’s concerns about the timing of possession, in its Reply in

Support of Motion for Vesting (at p. 14), LURA clarified that “LURA does not seek possession

of the property until October 1, 2013.”

Dillard’s seeks both denial of the motion for vesting and dismissal of the entire case.

Dillard’s Hearing Brief at p. 3 (requesting that “Petitioner’s Motion for Vesting be denied and

this condemnation action be dismissed”). Both parties agree that, at the outset of every eminent

domain case, landowners must raise their legal defenses to the acquiring agency’s right and

power to condemn, and the court must rule on those legal defenses.

Based on the foregoing, at this point the Court must decide whether title will vest in

LURA at this point, or the case will go forward as an ordinary eminent domain case with title

vesting at the end of the case. Either way, the Court must also enter rulings at this juncture

regarding Dillard’s legal defenses to the propriety of the eminent domain case. In addition, the

court must resolve Dillard’s challenge to the constitutionality of the vesting statutes.

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II. LURA’S AUTHORITY TO CONDEMN.

LURA seeks to acquire a fee simple interest in Dillard’s property.

The urban renewal statute, C.R.S. § 31-25-105(1)(e), expressly grants an urban renewal

authority such as LURA the power to acquire “any interest in property” by condemnation,

“including a fee simple absolute title,” in the manner provided for the exercise of the power of

eminent domain by any other public body:

[T]o acquire any property by purchase, lease, option, gift, grant, bequest, devise, or otherwise to acquire any interest in property by condemnation, including a fee simple absolute title thereto, in the manner provided by the laws of this state for the exercise of the power of eminent domain by any other public body (and property already devoted to a public use may be acquired in a like manner except that no property belonging to the federal government or to a public body may be acquired without its consent); except that any acquisition of any interest in property by condemnation by an authority must be approved as part of an urban renewal plan or substantial modification thereof ....

§ 31-25-105(1)(e) (emphasis added).

The foregoing statute authorizes LURA to acquire any property within the boundaries of

its Urban Renewal Plan by eminent domain. Similarly, under the 2012 Amended and Restated

Urban Renewal Plan (“the Plan”), LURA is authorized to acquire “any and all property or rights

or interest in such property” by eminent domain. Exhibit 6 at p. 11, § 7.2.

The Reciprocal Easement Agreement (REA) held by Dillard’s is an interest in property.

As noted, the statute specifically allows acquisition of “any interest” in property by

condemnation. Moreover, the REA runs with the land. Exhibit OO at p. 42. In acquiring a fee

simple interest in the Dillard’s property, LURA also acquires the REA. See § 31-25-105(1)(e)

(granting the power to acquire any interest in property by condemnation, “including a fee simple

absolute title thereto”).

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Once acquired, LURA may thereafter “sell, lease or otherwise transfer property or any

interest therein acquired by it as part of an urban renewal project for residential, commercial,

industrial or other uses or for public use in accordance with the urban renewal plan....” C.R.S. §

31-25-106(1); Rabinoff v. District Court, 145 Colo. 225, 360 P.2d 114, 116 (1961).

Dillard’s argues that nothing in the statutory blight factors allows the use of eminent

domain to take Dillard’s veto power over redevelopment (as set forth in the REA). Hearing

Transcript at pp. 41-42. That argument confuses the blight factors, which must be present in

sufficient number to find blight in the first instance, with scope of the eminent domain power

once blight is found.

Urban renewal agencies must find a minimum of five blight factors present in an area for

that area to be deemed blighted. C.R.S. § 31-25-105.5(5)(a). But once that blight determination

is made, the urban renewal agency has the power to acquire “any” interest in property in

furtherance of the public purpose of eradicating blight. § 31-25-105(1)(e).

Similarly, under § 38-1-101(2)(b), the question is whether Dillard’s property is

“necessary for the eradication of blight,” not whether Dillard’s property is itself blighted. See

also § 31-25-105.5(2)(a) and (b).

Dillard’s theory seems to be predicated on the notion that every item of property or parcel

acquired by eminent domain must itself be blighted. Under Dillard’s approach, if the item of

property being taken does not fit within one of the statutory blight factors, that item of property

cannot be acquired by eminent domain. This is not the way the statutes read.

The statute authorizing use of eminent domain power states that agencies can “acquire

any interest in property by condemnation, including a fee simple absolute title thereto.” § 31-25-

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105(1)(e). If Dillard’s argument was correct, the statute would say that agencies can “acquire

any interest in blighted property by condemnation.” The statute says nothing of the sort.

Similarly, § 38-1-101(2)(b) states only that the condemning entity must prove the taking

is “necessary for the eradication of blight.” If Dillard’s argument was correct, the statute would

state that the condemning entity must prove the taking is “necessary for the eradication of blight

on the property being acquired.” The statute contains no such restriction.

The Court’s role is to apply the statutes as written, not rewrite them to suit a particular

litigant. Dillard’s arguments are better addressed to the legislature.

III. THE PUBLIC USE REQUIREMENT.

Whether eradication of blight for urban renewal purposes is a public use has already been

decided by the judiciary. Rabinoff v. District Court, 145 Colo. 225, 360 P.2d 114 (1961) (urban

renewal is a public use, even when the acquired property is subsequently transferred to a private

party).

In City & County of Denver v. Block 173 Associates, 814 P.2d 824 (Colo. 1991), the

Supreme Court ruled that the courts should look to the record of the agency hearing:

In examining the stated public purpose for a condemnation, we look to whether the stated public purpose is supported by the record. If so, our inquiry ends. See Slack v. City of Colorado Springs, 655 P.2d 376, 379 (Colo. 1982) (relying on substantial evidence presented at the public hearing to uphold finding of an emergency) ….

Block 173 Associates, 814 P.2d 824, 828-29.

IV. GOOD FAITH NEGOTIATIONS BY LURA.

LURA’s negotiations with Dillard’s are at issue, not the negotiations between the

developer and Dillard’s. Dillard’s spent substantial effort at the hearing attempting to impugn

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the ability of Newmark’s managing director (Ginsborg) to reach agreements with other parties.

Notably, Ginsborg succeeded in negotiating commitments for the proposed redeveloped mall

from major national retailers, including Sam’s Club, Whole Foods, and Regal Theaters, based

upon extensive public input. Hearing Transcript p. 182. While Ginsborg and the Dillard’s

executive, Chris Johnson, were ultimately unable to reach a compromise acceptable to both

parties, the negotiations between Newmark and Dillard’s are irrelevant to the rulings the Court

must enter.

There is no legal requirement that the developer negotiate with the landowner prior to an

urban renewal authority bringing an eminent domain action in an urban renewal context. Hence,

the additional negotiations that were employed here (involving the developer) in an attempt to

reach a suitable compromise cannot held against LURA.

Under the eminent domain statutes, the government agency acquiring the landowner’s

property must negotiate in good faith to attempt to acquire the property prior to filing a Petition

in Condemnation. C.R.S. § 38-1-102(1); Thornton v. Farmers Reservoir & Irrigation Co., 194

Colo. 526, 539, 575 P.2d 382, 389 (1978) (“The prerequisite of a failure to agree upon the

purchase price for the property sought to be condemned generally requires only that the

condemning authority make a reasonable good faith offer to reach an agreement with the owner

of the property for its purchase.”)(emphasis added); City of Holyoke v. Schlachter Farms RLLP,

22 P.3d 960, 963 (Colo. App. 2001) (“In Colorado, the good faith negotiation requirement is

satisfied where the condemning authority makes a reasonable good faith offer to reach an

agreement with the owner of the property and allows the owner sufficient time to respond.)

(emphasis added).

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Applying the foregoing Colorado law, in determining whether LURA negotiated in good

faith, the Court must look to LURA’s negotiations with Dillard’s, not Newmark’s negotiations

with Dillard’s.

As to LURA’s negotiations with Dillard’s, LURA had an appraisal from an MAI

appraiser and offered $3.6 million, 20% more than the appraised amount. Petitioner’s Exhibit 12

at p. 2; Hearing Transcript p. 93, line 20 - p. 94, line 11. LURA offered more than the appraised

amount in order to settle the matter. Hearing Transcript p. 94, lines22 - p. 95, line 5. See also

Exhibit 23 (notes of LURA’s negotiations with Dillard’s) and Hearing Transcript p. 95, line 14 –

p. 96, line 20 (testimony regarding same).

The Colorado eminent domain case law finds good faith where the acquiring agency’s

offer is supported by an MAI appraisal. Board of County Comm’rs v. Blosser , 844 P.2d 1237

(Colo. App. 1992) (rejecting bad faith contention where acquiring agency’s offer was based on

appraisal by MAI appraiser); City of Holyoke, 22 P.3d 960, 963 (“we reject Schlachter Farms'

argument that good faith negotiations necessarily require a condemning authority to increase its

offer whenever the land owner makes a counteroffer”).

LURA made an offer 20% higher than the appraised amount and allowed Dillard’s a

reasonable opportunity to respond. Dillard’s did, in fact, respond with a counteroffer. Dillard’s

demanded $5 million, but submitted no appraisal in support of that demand. Hearing Transcript

p. 98, line 20 - p. 99, line 9; Hearing Transcript p. 262, line 2 – p. 264, line 2 (Chris Johnson

testifying). Further negotiations would have been futile. Hearing Transcript p. 100, line 23 – p.

101, line 3.

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The extent of negotiations required was discussed in Thornton v. Farmers Reservoir &

Irrigation Co., 575 P.2d 382, 392 (Colo. 1978):

Lengthy or face-to-face negotiations are not required. The making of a reasonable offer to purchase in good faith by letter and allowing the property owner time to respond is sufficient. If the property owner remains silent or rejects the offer without making an acceptable counter-offer, a condemnation action may be instituted.

At the hearing, Dillard’s presented no evidence that it had insufficient time to consider

LURA’s offer or that the amount offered by LURA constituted bad faith. Indeed, Dillard’s Vice

President of Real Estate, Chris Johnson, did not believe LURA’s offer was made in bad faith.

Hearing Transcript p. 262, line 2 – p. 264, line 2.

V. BLIGHT ISSUES.

A. Failure of Dillard’s to Timely Challenge the Blight Findings.

As a threshold matter, it is uncontroverted that the required notices were sent prior to the

governmental actions taken here. LURA put on evidence regarding this point, Hearing

Transcript p. 169, line 17 – p. 172, line 10, and no contrary evidence was presented.

Furthermore, Dillard’s did not timely bring a C.R.C.P. 106 action. Under the urban

renewal statutes, the landowner may bring a challenge to the blight determination “not later

than” 30 days after the determination by filing a Rule 106 action. The urban renewal statute

precisely defines the “blight determination” that is subject to challenge by Rule 106 action as the

determination that “the property is located in a blighted area or the property itself is blighted.”

See C.R.S. § 31-25-105.5(2)(a) and (b).

Dillard’s Vice President of Real Estate, Chris Johnson, indicated he was too busy to fly to

Colorado and attend public hearings. Hearing Transcript p. 278, line 13 – p. 279, line 8.

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However, a store manager or assistant manager from the Longmont store could have easily

attended the blight hearing and observed. There was no need for the Vice President of Real

Estate in particular to be present.

It is undisputed that Dillard’s did not challenge the blight findings. Hearing Transcript p.

253 (Chris Johnson testifying).

Dillard’s failed to timely file a Rule 106 action regarding the determination that “the

property is located in a blighted area or the property itself is blighted.” Based on the foregoing,

in addressing challenges to the blight findings, courts are limited to a review of the record before

City Council. Block 173 Associates, 814 P.2d 824, 828-29. LURA further incorporates the

arguments from its Hearing Brief and its Reply in Support of Motion for Vesting.

B. Dillard’s Claims Based on Bad Faith and Sham Must Fail.

Dillard’s has the burden of both pleading and proving any claims based on fraud, sham,

or bad faith. Colorado State Board of Land Commissioners v. District Court, 163 Colo. 338,

342, 430 P.2d 617, 619 (1967). Here, Dillard’s First Amended Answer to the Petition in

Condemnation contains no facts which, if true, would amount to fraud, bad faith, or sham.

At the hearing, Dillard’s clarified that it was asserting no claim for fraud. Hearing

Transcript p. 258, lines 5-7. As noted, Dillard’s has the burden of pleading and proving specific

facts showing sham and bad faith. Dillard’s has done neither.

In ruling on Dillard’s affirmative defenses of bad faith and sham, the Court should keep

in mind that both claims involve some element of fraud. See Black’s Law Dictionary p. 127 (5th

ed. 1979) (defining “bad faith” as “The opposite of good faith, generally implying or involving

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actual or constructive fraud ….”); see also Webster’s New World Dictionary p. 1232 (3rd ed.

1988) (defining “sham” as “A trick or fraud.”).

C. The Extensive Experience of Those Who Conducted the Blight Study.

Brad Power has decades of experience, including with the Boulder Urban Renewal

Authority for 18 years (serving 12 years as director of the Renewal Authority) and prior to that

the Denver Urban Renewal Authority. Hearing Transcript 45/24 -47/14. Power’s experience

included development of a number of urban renewal districts, including conducting blight

conditions analysis. Id. Power holds a Masters Degree in Urban and Regional Planning, is a

member of the American Planning Association and the International Council of Shopping

Centers, and as one of the 140 trustees of the Urban Land Institute (a 30,000-member institute).

Hearing Transcript 47/17-48/17; see also Petitioner’s Exhibit 1 (Power’s resume). Power

conducted several blight studies prior to the one done here for Longmont. Hearing Transcript

50/3-51/21.

David Starnes holds a Masters Degree in city planning and is a member of the Urban

Land Institute, the American Institute of Certified Planners, and the American Planning

Association. Hearing Transcript p. 160, lines 13-16; p. 163, lines 12-16; see also Exhibit 13

(resume). Starnes has a decade of experience with a national consulting firm advising hundreds

of clients throughout the United States on matters similar to the work he does now for the City of

Longmont. Hearing Transcript p. 161, line 15 – p. 162, line 12. That work on behalf of public

and private clients in different municipalities and different states included “evaluat[ing] a variety

of properties for conditions of blight.” Hearing Transcript p. 162, line 17 – p. 163, line 5.

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D. The Blight Findings Regarding the Urban Renewal Area.

Based on work done in August and September 2012, the updated Conditions Survey (i.e.,

blight study) found 10 factors of blight in the Twin Peaks Mall Urban Renewal Area. Hearing

Transcript 71/2 – 76/23; Exhibit 4. After notice and hearing, the Longmont City Council

considered that finding and determined that the area is currently blighted. Exhibit 7.

The 2012 blight study took a comprehensive look at numerous subcategories of

conditions relating to blight. See pp. 23-24 of Exhibit 4; Hearing Transcript p. 165, line 19 – p.

167, line 6. The study found 158 instances indicative of blight in 2012. Hearing Transcript p.

166, line 16 – p. 167, line 6.

The determination of blight in the Twin Peaks Mall Urban Renewal Area is consistent

with the observations of Dillard’s own real estate executive, Wes Cherry. In December of 2011,

Cherry, wrote that “the center [i.e., the Mall] is awful and our store performs poorly.” Hearing

Exhibit RR.

The 2012 blight study found 10 blight factors present in the area. Under C.R.S. § 31-25-

105.5(5)(a), only five blight factors need be present to exercise eminent domain powers.

The urban renewal statute lists the specific blight factors that may be considered. C.R.S.

§ 31-25-103(2). On cross-examination at the vesting hearing, Dillard’s did not challenge the

applicability of any specific statutory blight factor to the overall Twin Peaks Mall Urban

Renewal Area.

Instead, Dillard’s challenged the blight study done by Leland Consulting Group in 2009

(Exhibit 3). But that was not the study that formed the basis of the Longmont City Council’s

finding of blight. City Council relied on the 2012 study, which entailed a completely new review

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of the conditions in the area by Power and Starnes. Hearing Transcript p. 78; p. 88, line 23- p.

89, line 5. Notably, the 2009 Leland study found 11 blight factors, while Power and Starnes

found 10 in 2012. Id.

Nor did Power and Starnes rely on the 2007 study done by Leland. Hearing Transcript p.

79; see also Hearing Transcript p. 80-82 (discussing methodology used by Power and Starnes).

E. The Blight Findings Regarding the Dillard’s Property.

The 2012 blight study also found 6-8 blight factors present regarding the Dillard’s

property. Hearing Transcript p. 85; see also p. 12 of Petitioner’s Exhibit 4; see also Hearing

Transcript pp. 85-88 (discussing specific blight factors found regarding Dillard’s property).

At the vesting hearing, Dillard’s questioned whether certain blight factors applied to the

Dillard’s property in particular. On cross-examination, Dillard’s challenged the conclusions

regarding the street layout, lot layout, unsanitary or unsafe conditions, and defective or unusual

conditions of title. Hearing Transcript pp. 130-141. There was ample testimony to support the

challenged blight conclusions. Id.; see also Hearing Transcript pp. 69-89.

Dillard’s presented the testimony of Chris Johnson regarding certain blight factors.

Johnson testified that he personally did not agree with some of the conclusions regarding the

presence of particular blight factors on the Dillard’s property. Hearing Transcript p. 236-37.

That a Dillard’s executive, who is an accountant with less than a year of experience as a real

estate executive, holds a particular personal belief does not entitle Dillard’s to substitute its

judgment for City Council’s judgment. Dillard’s did not present its own blight study by

qualified authors, either prior to City Council’s determination of blight or at the vesting hearing.

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The 2012 blight study found 6-8 blight factors present on the Dillard’s property.

Ultimately, even under the most generous review of the evidence presented by Dillard’s, there

still remain the requisite 5 blight factors under § 31-25-105.5(5)(a).

Notably, despite having notice of the blight hearing, Dillard’s presented no evidence to

City Council prior to the blight determination to challenge the conclusions in the 2012 blight

study. Dillard’s also presented no evidence at the vesting hearing to indicate City Council acted

in bad faith in approving a blight study containing the blight factors that Dillard’s has now

decided to challenge. Under these circumstances, Dillard’s cannot prevail.

In any event, there was never a requirement that the City Council find blight on Dillard’s

property in particular. The blight determination is an either/or proposition – i.e., that “the

property is located in a blighted area or the property itself is blighted.” See C.R.S. § 31-25-

105.5(2)(a) and (b) (emphasis added). A finding of blight in the urban renewal area will suffice.

F. Dillard’s Absolute Veto Power Under the Reciprocal Easement Agreement (the “REA”).

One of the statutory blight factors is “defective or unusual conditions of title rendering

the title nonmarketable.” C.R.S. § 31-25-103(2)(g). Dillard’s expended a great deal of time at

the vesting hearing addressing this factor.

The witnesses disagreed on whether an REA granting absolute veto power is “unusual” in

the retail marketplace. Allen Ginsborg of Newmark Merrill Mountain States Twin Peaks LLC

(“Newmark”), the developer, testified absolute veto power is uncommon in today’s market.

Hearing Transcript pp. 190-91. Dillard’s Vice President of Real Estate, Chris Johnson, testified

all of Dillard’s stores enjoy this veto power and that national fashion department store chains

(like Neiman Marcus, Macy’s, and Dillard’s) could obtain this absolute veto power. Hearing

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Transcript pp. 228-29. At most, this testimony shows only that a small niche of the marketplace

(a few national fashion department stores) can obtain such REAs, making them “unusual” in the

broader marketplace.

The key question, however, is whether the governing body that found blight, the

Longmont City Council, was informed, prior to finding blight in October 2012, that REAs

granting absolute veto power are the usual form of REA in the marketplace. Dillard’s presented

no such evidence at the vesting hearing.

Instead, Dillard’s relies on Exhibit Z, a memo presented to LURA 6 months after the

blight determination. That memo, dated April 9, 2013, refers to the right to approve changes to

the development of a mall as typical. Because the memo was provided months after the blight

determination, it has no relevance when determining whether the blight determination was made

in bad faith. Moreover, the memo does not say whether that right is typical in older REAs but not

new ones. It also does not address whether it is typical for one anchor in a dying mall to exercise

the right to prevent redevelopment.

The record reflects that Allen Ginsborg of Newmark has brought in major anchor

retailers for the redevelopment, including Whole Foods, Sam’s Club, and Regal Theaters. These

national retailers were not given absolute veto rights in an REA. Hearing Transcript p. 191, lines

1-2 (Ginsborg testifying that he’s “never negotiated anything that gives either party absolute veto

rights”). Thus, large national retailers like Whole Foods, Sam’s Club and Regal Theaters do not

get absolute veto rights under current conditions in the marketplace. This lends further support

to the conclusion that it is an “unusual” condition of title to afford a tenant absolute veto rights as

part of an REA.

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G. Marketability.

Under the relevant statute, C.R.S. § 31-25-103(2), in determining whether an area is

blighted the governing body must consider the area “in its present condition and use.” The

question is whether, “in its present condition and use,” the blight factors exist.

Dillard’s suggests the Twin Peaks Mall was “marketable,” and thus could not meet

statutory blight factor (g) (“defective or unusual conditions of title rendering the title

nonmarketable”) where the developer (Newmark) had recently purchased the Twin Peaks Mall

(with the exception of the Dillard’s property). According to Dillard’s, the fact that the developer

purchased the Mall with the Dillard’s REA in place meant the Mall was marketable.

However, the uncontroverted evidence at the hearing was that Newmark purchased the

Twin Peaks Mall out of foreclosure in 2012. Hearing Transcript p. 185-86. A foreclosure sale is

not a transaction in the open market, but a distressed, forced sale outside the marketplace. E.g.,

CJI-Civ 4th 36:3 (market value is the price a property sells for on the open market where the

owner was willing to sell, the purchaser was willing to buy, “but neither was under an obligation

to do so”). Moreover, the 2012 sale to Newmark is the only transaction that reflects the “present

condition and use” (see § 31-25-103(2)) of the Twin Peaks Mall – i.e., a dead or dying mall, with

several anchors gone, 50% of the shops gone, the property deteriorating, and the remaining

anchor tenant (Dillard’s) exercising its absolute veto power as an obstacle to redevelopment.

Hearing Transcript p. 214, line 24 – p. 215, line23; see also Exhibit RR.

Even Dillard’s own real estate executive (Wes Cherry) agreed “the center [i.e., the Mall]

is awful and our store performs poorly.” Hearing Exhibit RR. It would be a perverse result to

allow one landowner who believes the Mall is “awful” to block redevelopment of the Mall.

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At the hearing, Dillard’s cited a prior sale of the Mall in 2006 to Panattoni, but provided

no evidence to show that that sale was a sale in the ordinary marketplace. Nor was that sale

made under the “present condition and use” of the Mall. Only the 2012 sale to Newmark meets

that standard.

Finally, while Dillard’s challenges the blight finding that the REA constituted a

“defective or unusual condition of title rendering the title nonmarketable,” Dillard’s never

presented this challenge to the Longmont City Council prior to the Resolution finding blight.

Dillard’s cannot prove that the blight finding reflects “bad faith” or constitutes a “sham” finding

where the City Council had no evidence before it on which to conclude that the title was

marketable in the ordinary marketplace in 2012.

H. To Support Its Argument That the 2012 Blight Findings Were Based on Economic or Tax Benefits, Dillard’s Attacks the Activities from 2006 to 2009 Which Did Not Form the Basis for the 2012 Blight Findings.

Dillard’s contended the blight findings were based on a desire for economic

redevelopment and additional sales tax revenue, instead of remedying blight. As evidence of this

alleged improper purpose, Dillard’s relied on a 2006 retail opportunities study focusing on retail

“leakage” that might be recaptured by redevelopment of the Twin Peaks Mall, as well as a 2008

economic development workshop that estimated an increase in sales tax from redevelopment of

the Mall. However, these 2006-2008 events were not considered in 2012 during the drafting and

adoption of the updated blight conditions survey and the Amended and Restated Urban Renewal

Plan. Hearing Transcript p. 149, line 2 – p. 153, line 8. Nor were the blight findings from the

2009 blight study used in the 2012 blight study at issue here. Id.

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The 2006 retail study, 2007 blight study, and 2009 blight study were not presented to

City Council when it made its determinations in 2012 and 2013 regarding blight and eminent

domain. Hearing Transcript p. 152, line 21 – p. 153, line 8.

Dillard’s evidence impugned the motives and methods of the prior City Council and the

participants in the blight study that was done prior to the blight study at issue here. However,

only two of the seven-member Longmont City Council who served during the 2006-2008 time

period still remained on Council in the 2012-2013 time period. Id. The City Attorney, City

Manager, and the two people conducting the 2012 blight study (Power and Starnes) all came on

board after the 2006-2008 time period. Id.

Dillard’s focuses on prior, irrelevant matters. See, e.g., Dillard’s Exhibits K (2007 letter

from prior landowner to City Manager); L (2007 City Council communication); M (2008

documents regarding party who conducted prior blight study, Leland); R (2006 Retail

Opportunities Study); S (2008 Development Workshop); and Y (2008 City Council

communication); N-1 (2007 blight study). Seven of Dillard’s 15 hearing exhibits deal with these

prior, irrelevant matters. Dillard’s provides no link between the two time periods and instead

suggests to this Court to presume one exists.

Dillard's attack upon LURA's work in the 2006-2009 time frame is an implicit admission

by Dillard's that LURA's recent work in 2012 to amend the urban renewal plan was solid (and

indicates that Dillard's is reaching for defenses). By focusing so much effort on the prior blight

studies and prior events that are not at issue, Dillard’s implicitly acknowledges the strength and

unassailability of the 2012 blight study.

17

I. Providing Sales Tax Information to the County, as Required by Statute, Cannot Constitute Improper Conduct by the City.

Dillard’s complains that certain estimates of tax revenues were generated by the City and

provided to the County. See Exhibit HH (Boulder County Impact Report for Twin Peaks Mall

Area). These estimates are required by statute. Hearing Transcript p. 117, lines 14-21 (Brad

Power testifying the document is “required by the state statute … to be provided to the county”);

Hearing Transcript p. 154, lines 3-22 (same); Hearing Transcript p. 167, line 25 – p. 168, line 12

(same).

Indeed, the first page of Exhibit HH notes: “This report …. responds to the requirements

outlined in C.R.S. § 31-25-107(3.5).” Those statutory requirements, set forth on page 2 of

Exhibit HH, include the requirement to provide the Board of County Commissioners various tax

and revenue information.

It would be unfair to penalize the City and LURA for providing information to the

County that is required by law. If merely complying with state statutes regarding information

required to be provided to county governments constituted a basis for precluding implementation

of an urban renewal plan, no urban renewal plan could ever be implemented.

In a similar vein, Dillard’s also relies on its Exhibit P (sales tax information), which

Dillard’s counsel indicated “was produced by the City in response to our requests about the

generation of sales tax from the Twin Peaks Mall.” Hearing Transcript p. 116, lines 11-16. The

testimony reflected that the City’s finance department tracked sales tax data for all “geographic

areas for the entire city.” Hearing Transcript p. 115, line 15 – p. 116, line 5.

Thus, it should be no surprise that the City was able to produce data, when requested to

do so, about sales tax revenues for a particular area within the city. What is missing is any

18

evidence showing that City Council considered this data when making its blight findings in

2012.

J. LURA Needs the Dillard’s Property to Eradicate Blight.

As noted above, there is no requirement that the governing body find blight on every

property within the urban renewal area. The blight determination is an either/or proposition –

i.e., that “the property is located in a blighted area or the property itself is blighted.” See C.R.S.

§ 31-25-105.5(2)(a) and (b) (emphasis added).

Hence, there was never a requirement that the City Council find blight on Dillard’s property

in particular. A finding of blight in the urban renewal area will suffice.

Apart from the blight determination, there is a second step – that the agency acquiring a

landowner’s property by eminent domain must prove by clear and convincing evidence that this

landowner’s property is “necessary for the eradication of blight.” See § 38-1-101(2)(b).

LURA needs the Dillard’s property to eradicate blight on the Dillard’s property itself. As

noted above, the 2012 blight study found 6-8 blight factors present regarding the Dillard’s

property. Hearing Transcript p. 85; see also p. 12 of Petitioner’s Exhibit 4; see also Hearing

Transcript pp. 85-88 (discussing specific blight factors found regarding Dillard’s property).

LURA needs to acquire the Dillard’s property to eradicate that blight.

Even assuming arguendo that the blight determination regarding Dillard’s property did

not stand, LURA still needs the Dillard’s property to eradicate blight in the Twin Peaks Mall

Urban Renewal Area.

In that respect, the Dillard’s property is needed for several independent reasons: (1) to

obtain land use approvals and construction financing for the urban renewal project; (2) to

19

implement the changes needed to the street and the circulation network for both vehicular access

and pedestrian access; and (3) to replat the mall property for the project. Hearing Transcript pp.

66, 69-70.

The Longmont City Council approved the 2012 Amended and Restated Urban Renewal

Plan (“the Amended Plan”). See Exhibit 7 at p. 5, § 16. The Amended Plan (Exhibit 6)

addresses the objectives of improved vehicular and pedestrian access (§ 7.1), adding streets and

bicycle paths (§ 6.5), positioning buildings and amenities to serve as gateways, and acquiring the

land necessary to proceed (§ 7.2). The Amended Plan is necessary to eliminate and prevent the

spread of blight. Exhibit 6 at § 4.0. Hence, the three independent reasons listed above for

acquiring the Dillard’s property are all consistent with the Amended Plan.

Dillard’s focuses its primary challenge on the fact that LURA needs to acquire the REA

in order to obtain approvals for the project without the impediment of Dillard’s absolute veto

power under the REA. Even assuming arguendo that the REA is not itself a blight factor,

Dillard’s fee interest (including the REA) must nonetheless be acquired in order to move forward

with the urban renewal project. Without Dillard’s fee interest, LURA cannot obtain the needed

approvals for the project.

As noted above, the statute authorizing use of eminent domain power states that agencies

can “acquire any interest in property by condemnation, including a fee simple absolute title

thereto.” § 31-25-105(1)(e). The statute does not limit agencies to acquiring “any interest in

blighted property by condemnation.” Hence, whether the REA is itself a blight factor is

irrelevant.

20

Dillard’s presented no evidence that LURA’s judgment regarding any of the independent

reasons for needing the property constituted a sham or reflected bad faith.

Some testimony reflected that a redevelopment plan could have been implemented with

Dillard’s remaining at the Mall. E.g., Hearing Transcript p. 146, lines 5-9. In that event,

eminent domain could have been avoided. In other words, the blight conditions on the Dillard’s

property itself could have been resolved without eminent domain, but only if Newmark and

Dillard’s had come to an agreement on a redevelopment plan. Hearing Transcript p. 146, lines

10-17. However, Newmark and Dillard’s were not able to reach a mutually acceptable

agreement as to how to proceed with redevelopment. Hearing Transcript pp. 147-48.

VI. THE IMMEDIATE NEED TO VEST TITLE.

As Allen Ginsborg (managing director of Newmark) testified, the title is needed

immediately to secure construction loan financing, proceed with obtaining government

approvals, and secure the needed land swap for construction of the movie theater. Hearing

Transcript p. 187-88 and 192-94. Ginsborg further testified that, unless the project proceeds very

soon, tenants have advised they will cancel their leases. Hearing Transcript p. 194.

Brad Power’s testimony further reflected that the City of Longmont will not issue its

$27.5 million in Certificates of Participation until the construction lending has been secured.

Hearing Transcript p. 60, line 11 – p. 61, line 2.

Accordingly, LURA requires that title to the Dillard’s property vest immediately in order

to proceed with the urban renewal project. Absent immediate vesting of title, the redevelopment

project is in jeopardy.

21

VII. THE CONSTITUTIONALITY OF THE VESTING STATUTE.

The Constitution provides that, until compensation is paid to the owner, or into court, the

landowner’s property shall not be needlessly disturbed, “or the proprietary rights of the owner

therein divested.” COLO. CONST. ART. II, § 15.

The rights associated with holding title to property are not the only “proprietary rights.”

The rights to possess and use property are also “proprietary rights” that, under the Constitution,

must not be “divested” prior to compensation being paid to the owner or into court. This is

shown by McClain v. People, 9 Colo. 190, 11 P. 85 (1886).

In McClain, the Colorado Supreme Court unequivocally ruled that a landowner’s

“exclusive possession and enjoyment of property are undoubtedly ‘proprietary rights.’"

McClain, 9 Colo. 190, 194, 11 P. 85, 87 (emphasis added). Dillard’s makes this same point.

Dillard’s Hearing Brief at p 8. Thus, the “proprietary rights” that must not be “divested” prior to a

jury or commission trial include not just the rights that flow from holding title, but also

“undoubtedly” the right to possession of the property.

At issue in McClain was the eminent domain statute, now found at § 38-1-105(6), that

allows an acquiring agency to take possession of the landowner’s property “during the pendency

[of the eminent domain proceedings] and until the final conclusion of such proceedings” – i.e.,

prior to the trial on valuation / just compensation. The condemnor brought eminent domain

proceedings to construct a right-of-way over McClain’s property. The trial court granted

immediate possession. McClain resisted possession, and was cited for (and ultimately found

guilty of) contempt. The Supreme Court affirmed.

22

McClain argued the statute allowing possession of a landowner’s property during the

pendency of the proceedings was unconstitutional in that it disregarded Article II, § 15 of the

Colorado Constitution.

The Supreme Court observed that possession by the condemnor “suspends” the landowner’s

proprietary rights, and noted that “in many cases” this amounted to a “temporary suspension.”

McClain, 9 Colo. 190, 194, 11 P. 85, 87. But the McClain court implicitly acknowledged that the

possession at issue in McClain was not “temporary”. “Temporary” possessions consist of “running

surveys, locating lines, and the like.” McClain, 9 Colo. 190, 193, 11 P. 85, 87. In contrast, the

condemnor wanted possession of McClain’s property to construct a right-of-way. That was, by

nature, a permanent possession.

Thus, if only “temporary suspension” of proprietary rights pass constitutional muster (as

Dillard’s suggests), the Supreme Court would have reversed the trial court in McClain. Rather,

the additional discussion by the McClain court reflects the dispositive factor – whether there are

adequate protections for the landowner’s right to compensation.

Specifically, the Supreme Court expressly found that, in enacting the immediate possession

statute, the legislators concluded that “a prior final investigation and award of damages by

commissioners or by a jury is not essential.” McClain, 9 Colo. 190, 195, 11 P. 85, 87 (emphasis

added). The reason a jury or commission award was deemed “not essential” by the legislature is

because a security deposit would comply with the spirit of the constitution:

But the legislators concluded that while a prior final investigation and award of damages by commissioners or by a jury is not essential, yet a careful regard for the interests of land-owners, and possibly also for the spirit of the constitutional provision before us, rendered security of some kind an important prerequisite to such disturbances as those now under consideration. Hence they enacted a wise limitation upon the powers of the court or judge in the premises.

23

Id.

The “wise limitation” on trial courts’ powers was to require a security deposit, and “only

upon the prior deposit of such sum by petitioner with the clerk of the court” could possession be

granted. Id.

Subsequently, in Swift v. Smith, 119 Colo. 126, 201 P.2d 609 (1948), the Colorado

Supreme Court reviewed the McClain opinion. The Swift court concluded that the dispositive part

of the McClain decision was the deference to the legislature’s apparent determination that a final

award by the commissioners or a jury “is not essential” where the interests of the landowner are

protected by a security deposit. Swift, 119 Colo. at 134, 201 P.2d at 613.

On other occasions, the Colorado Supreme Court has denied constitutional challenges

under Article II, section 15 (the provision Dillard’s cites). In Sternberger v. Continental Mines

Power & Reduction Co., 68 Colo. 129, 186 P. 910 (1920), writ of error dismissed, 257 U.S. 617,

42 S. Ct. 95 (1921), a condemnor filed an eminent domain case “to condemn a right of way

across land of … respondents …, to erect poles, wires, etc., for an electric power line.” 68 Colo.

at 129, 186 P. at 910. The trial court entered an order “before service of summons and without

notice to respondents, permitting petitioner to take possession of the right of way.” 68 Colo. at

130, 186 P. at 910.

When the landowners subsequently appeared and contested the amount of the security

deposit, the trial court increased the security deposit. Id. The case then went to a trial before a

valuation commission.

24

On appeal, the landowners argued the immediate possession order violated the

constitutional prohibition against taking property without just compensation, because possession

was taken “before compensation was paid or ascertained.” Id.

The Colorado Supreme Court easily rejected that argument, concluding that if this

violated the Constitution, it was a mere technical violation that did not injuriously affect the

landowners’ rights on the merits:

Whether such an interlocutory order violates the constitutional provisions or not, it does not vitiate the rest of the proceedings for condemnation; and if in those proceedings, respondents have, as in this case, had notice and have had their compensation judicially ascertained, the case will not be reversed because of such order, unless it be shown that it has injuriously affected their rights upon the merits.

No … injury is shown here.

Id. (emphasis added).

Obviously, Sternberger involved a permanent possession (for “a right of way across land

of … to erect poles, wires, etc., for an electric power line”). Under McClain this permanent

possession “undoubtedly” took the landowner’s “proprietary rights” (to possession and use), and

the taking occurred without a jury or commission first determining just compensation.

But the Colorado Supreme Court easily rejected the landowners’ constitutional challenge,

because: (1) it involved at most a technical violation that did not interfere with the trial on the

merits, and (2) the landowners ultimately had their say on the amount of the security deposit.

The same is true here – (1) entry of an Order vesting title prior to the jury trial on compensation

will not “injuriously affect” Dillard’s rights on the merits in the jury trial, and (2) Dillard’s will

have a full and fair opportunity to participate in the proceedings that set the amount of the

security deposit.

25

Here, as in Sternberger, “No … injury is shown.”

Notably, the Colorado Supreme Court continues to defer to the legislature when

determining whether a statute violates the just compensation provision of the Colorado

Constitution (Article II, Section 15, the provision on which Dillard’s relies). For example, in E-

470 Public Highway Authority v. Revenig, 91 P.3d 1038 (Colo. 2004), the Supreme Court

rejected an argument that a statute limiting a landowner’s recovery of just compensation was

unconstitutional, stating:

Applying both the presumption of constitutionality and the requirement that the landowner must prove the statute unconstitutional beyond a reasonable doubt, we defer to the General Assembly's method for calculating just compensation ….

Revenig, 91 P.3d at 1044.

Here, landowners are afforded even greater protections than existed when McClain was

decided in the 1800’s. The vesting statute requires a determination of compensation by a

commission of three freeholders after viewing the property and hearing testimony. No such

statutory protections were involved in McClain. Rather, the McClain court merely considered

whether a trial court may order possession after conducting its own investigation and reaching its

own determination of the amount of compensation. The Colorado Supreme Court has since

confirmed that a mere “investigation” by the trial court is needed prior to entry of an order of

possession. Swift v. Smith, 119 Colo. 126, 201 P.2d 609 (1948).

Additionally, the eminent domain statutes now require the acquiring agency to inform

landowners whose property has an estimated value of $5,000 or more that the agency will pay the

reasonable costs of an appraisal. C.R.S. § 38-1-121(1)-(2). This must be done during negotiations

(i.e., before the eminent domain case is even filed) as part of the notice of intent to acquire the

26

property. LURA complied with that requirement. Petitioner’s Exhibit 12; Hearing Transcript pp.

92-93. Dillard’s has had ample time to obtain an appraisal of its own, at LURA’s expense, but has

not done so.

Moreover, if the preliminary compensation (and the deposit into the court registry)

ultimately proves to be less than the final compensation, landowners now have a claim for pre-

judgment interest at the statutory rate of 8% under C.R.S. § 38-1-116.

Furthermore, the Court’s ruling here can have far reaching consequences. Government

agencies often need immediate possession and use of the landowner’s property at the outset of an

eminent domain case to construct their projects. Undersigned counsel has represented RTD,

CDOT, and the E-470 Public Highway Authority in numerous cases. The overwhelming number of

major projects, such as construction of a highway or light rail line, involve possession of multiple

properties at the outset. Possession in these cases is not temporary. Rather, once possession is

acquired, permanent light rail or highway facilities are constructed atop the properties.

If the courts adopt the view that only a “temporary suspension” of proprietary rights may

occur without a final determination of just compensation, then no major construction project

involving permanent possession of properties early in the project (such as the E-470 tollway

construction, the RTD FasTracks project, or major CDOT projects) could ever occur.

No major public works project involving construction across multiple properties could be

accomplished without permanent possession of numerous parcels early in the proceedings, prior

to the ultimate award of just compensation following the valuation trial. This would overturn

what has been approved by the legislature and in practice for many decades.

27

Dillard’s also argues that a vesting of title will prevent activities such as the sale or

encumbrance of the Dillard’s property. However, the agency acquiring property by eminent

domain typically records a lis pendens at the outset of the eminent domain case. The lis pendens

recorded by the condemnor is, of course, a matter of public record. As a practical matter, that lis

pendens prevents any mortgage, sale, encumbrance, etc. regarding the property being acquired.

LURA recorded a lis pendens regarding the Dillard’s property. See lis pendens, attached

at Exhibit 1-A. An online search of the records for this landowner (DSS Uniter) shows LURA

recorded a lis pendens. See Boulder County Recorder’s information, attached at Exhibit 1-B

(found at https://recorder.bouldercounty.org/countyweb/login.do?countyname=boulder).

Finally, assuming arguendo that the Court holds the vesting statute unconstitutional, the

eminent domain case would still go forward, unless the Court also accepts Dillard’s arguments

that the entire eminent domain case must be dismissed.

VIII. LOST BUSINESS PROFITS ARE NOT COMPENSABLE IN EMINENT DOMAIN.

Under longstanding Colorado law, a landowner’s lost business profits and relocation

costs cannot be considered in an eminent domain proceeding. See Petitioner’s Reply in Support

of Verified Motion for Vesting at pp. 14-15, citing Auraria Businessmen Against Confiscation,

Inc. v. Denver Urban Renewal Authority, 183 Colo. 441, 446, 517 P.2d 845, 847-48 (1974)

(“goodwill and profits traditionally have not been regarded as elements of just compensation

under either the due process or just compensation clauses of the federal and state constitutions….

changing the rule to correct supposed inequities is properly a matter of legislative action and not

judicial declaration.”).

28

Thus, it is up to the legislature to provide payment for lost business profits, not the

judiciary.

IX. THE LOSS OR GAIN OF EMPLOYMENT IS NOT A RELEVANT OR PROPER

CONSIDERATION.

Dillard’s notes that, if the Dillard’s store closes, 45 of Dillard’s employees will lose their

jobs. However, economic factors cannot be considered. C.R.S. § 31-25-107 (3)(b) (decision

must be made “without regard to the economic performance of the property to be acquired.”).

Thus, it is no more proper to consider the potential loss of 45 Dillard’s jobs than it is to consider

the number of people who would be employed at Sam’s Club, Whole Foods, and the other

retailers brought to the Twin Peaks Mall as a result of redevelopment.

X. PROCEDURAL ISSUES.

If the Court grants LURA’s Motion for Vesting, LURA respectfully requests that a

vesting Commission be appointed as soon as possible. Title cannot vest until the Commission

has determined preliminary compensation and the Court has approved that amount.

XI. CONCLUSION.

For the foregoing reasons, the Court should reject Dillard’s defenses and grant LURA’s

Verified Motion for Vesting.

29

Respectfully submitted this 2nd day of August, 2013.

DUNCAN, OSTRANDER & DINGESS, P.C.

/S/ JAMES BIRCH’S DULY SIGNED PHYSICAL COPY OF

THIS DOCUMENT IS ON FILE AT THE OFFICE OF DUNCAN, OSTRANDER & DINGESS, P.C. PURSUANT TO CRCP RULE

121, SECTION 1-26(9) By:

Robert R. Duncan, No. 5733 Donald M. Ostrander, No. 12458 James Birch (Special Counsel), No. 15899

ATTORNEYS FOR THE PETITIONER LONGMONT URBAN RENEWAL AUTHORITY

CERTIFICATE OF DELIVERY

I hereby certify that on this 2nd day of August, 2013, a true and correct copy of the PETITIONER’S CLOSING ARGUMENT REGARDING JULY 25, 2013 HEARING was sent via ICCES or placed in the United States mail, first class, postage prepaid, and properly addressed to the following: Leslie A. Fields, Esq. Sarah Mastalir Kellner, Esq. Faegre Baker Daniels 1700 Lincoln Street, Suite 3200 Denver, Colorado 80203 DSS UNITER, LLC, DILLARD’S PROPERTIES, INC., DILLARD TEXAS SOUTH, LLC AND

CONDEV WEST, INC. N/K/A DILLARD STORE

SERVICES, INC.

DUNCAN, OSTRANDER & DINGESS, P.C. /s/ Lori B. Crosby By:

Exhibit 1-A Case No. 2013CV30828 Page 1 of 3

Exhibit 1-A Case No. 2013CV30828 Page 2 of 3

Exhibit 1-A Case No. 2013CV30828 Page 3 of 3

7/30/13 transAddDoc.jsp

https://recorder.bouldercounty.org/countyweb/transaction/transAddDoc.do?readonly=true&searchSessionId=searchJobMain&countyname=Boulder&usage=ADV… 1/1

Document Type: LIS PENDENS

Document Status: Recorded and Verified Document

Reception Number: 03314215

Book:

Page:

Recorded Date: 05/23/2013 12:59:24 PM

Recording Fees: $21.00

Number of Pages: 3

Remarks:

Notes:

Name Information

Grantor:

LONGMONT URBAN RENEWAL AUTHORITY

Grantee:

DSS UNITER LLC DILLARDS PROPERTIES INC DILLARD TEXAS SOUTH LLC EPC TWIN PEAKS LLC DM PROPERTY INVESTMENTS LLC PINTAR INVESTMENT PROPERTIES DE LLC THOMAS PROPERTIES DE LLC VAN VALKENBURGH INVESTMENTS LLC BUCK CO LLC JORDAN SUSAN RUTH TRUSTEE JORDAN JAMES F TRUSTEE CONDEV WEST INC JORDAN REVOCABLE TRUST COLORADO STATE OF EPC TWIN PEAKS JJ LLC DILLARD STORE SERVICES INC BOULDER COUNTY TREASURER PUBLIC SERVICE COMPANY OF COLORADO

Address / Legal Description

Legal Description:

L 1H B TR U BLD TWIN PEAKS MALL SUBDIVISION REPLAT H

Exhibit 1-B Case No. 2013CV30828