Law and Disorder

The Arcade, I presume?: Do the feasibility study

 By A.J. Wagner

At the opening of the May 2 meeting called by Dayton Metro Library for public input into the library’s building plans, we were informed that discussion of the Arcade or any other option would be limited. After all, we were told the Arcade advocates were working on faulty presumptions.

How ironic. The Arcade advocates are asking the board to consider a study to put the presumptions to rest. They are not asking for the Arcade to become the library at this time. The advocates understand the need for a thorough feasibility study to determine the costs and possibilities so that a good decision can be made. Four individuals were given two minutes each to ask for further study and we were cut off. The board has spoken. Their presumptions stand. Facts are not welcome.

The board provided a letter to the media that outlines their position. The letter is strong on presumptions, making it wrong on the law. Thus, it is the subject of this week’s “Law and Disorder.”

The letter asserts: “The Arcade is not one building but a multi-use complex. If we were to acquire the property, we would be taking responsibility for space we do not need and are not equipped to fill or to manage.” This presumes, incorrectly, that the library does not have the option of buying a part of the Arcade complex. They do.

The letter asserts: “We do not have unrestricted ownership of the property where the Main Library is situated … [W]e would not reap any proceeds if we left that property and moved elsewhere.” The truth: Gunther Berg, owner of the Arcade, has offered to buy the old library as a part of any deal. The actual costs of these transactions are presumed to be high, but for now are unknown. A feasibility study would nail this down.

The letter asserts: “We have been steadily moving away from leasing space for our facilities because of the loss of control that entails. Maintaining control of the Main Library is non-negotiable.  More important, even if we were prepared to make that compromise, no entity has stepped forward to take on the complicated, risky and financially draining work of restoring the Arcade.” The truth: The library currently sits on land leased in perpetuity from the City of Dayton and Berg brought a renowned historic architect to Dayton a few weeks ago to look at, and potentially, manage the project. Further, the library has yet to hire an architect to take on the complicated, risky and financially draining work of restoring the current library.

The letter asserts: “For structural reasons and because the corridors are very much part of the historic fabric of the buildings, tearing down walls or moving them may not in all cases be possible. At best, doing so likely would be cost prohibitive.” The presumptions are italicized. A study can resolve the real possibilities.

The letter asserts: “Maintenance and energy costs would be significant at the Arcade.” Without a study, we do not know how significant. Modern construction techniques will make the Arcade energy efficient. How efficient? Do the study.

The letter asserts: “In previous redevelopment attempts of the Arcade, unanticipated costs have been significant.” The Board proposes rehabbing the existing library with the same potential risks. What are the risks? Do the study.

The letter asserts: “Our legal counsel is unequivocal that we cannot take the money generated from the sale of general obligation bonds issued for a public purpose and then loan it to a private developer.” By purchasing the property, this issue would be overcome. No loans need to be made to the developer from the funds. A study could show how to do this within the law.

The letter says: “It’s also important to understand that, as a public entity, Dayton Metro Library is not eligible to receive historic tax credits.” A study of the use of tax credits would show how the library could obtain credits and sell them to other entities saving millions in construction costs. How much? Do the study.

The letter asserts: “As you can see, the case for remaining at our current site is overwhelming … The libraries we are creating across Montgomery County must serve citizens for decades to come, and we have to maximize the dollars taxpayers have entrusted to us. Please be assured that we have done our due diligence regarding this incredibly important decision.” Without a study, there is no due diligence.

Because of space limits, I have not addressed all elements of the letter. But in the end, we are not asking for the library to be moved, we are asking for a study of all of these elements to determine the feasibility of moving the library. The study will cost nothing. Please do it.

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein. 

A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

3 Responses to “Law and Disorder” Subscribe

  1. Geoff Burkman May 9, 2013 at 8:27 pm #

    I posted once already, but apparently got modded out. I’ll try again. How could such a study possibly cost nothing? Simple question; is there a simple answer?

  2. Thomas E. Ruddick May 14, 2013 at 4:39 pm #

    Alas, A.J., many of these statements are less assumptions than you assume.

    Will the cost of renovating a 100 year old concrete-and-steel building now plagued with toxic mold be higher than renovating a more recent, maintained building? Almost certainly. Anyone who watches HGTV would know that. An early estimate for simple restoration of the Arcade was $30 million; since then the building has deteriorated, costs have gone way up, and it doesn’t even account for the alterations that a library would require. No need for a study.

    Will utilities costs for a 70 X 90 foot circular rotunda be higher than for rooms with more standard ceilings? Yes. No need for a study.

    Will locating at the Arcade involve no convenient parking, no free parking for staff, no drive-up window? Absolutely. No need for a study.

    Is the Arcade complex far larger than the main library branch needs? Look up the square footage. No need for a study.

    Here’s one assumption I make. If someone hires a consulting firm to do a “feasibility study” and specifies its about moving the main library to the Arcade, it’s likely the consulting firm will understand the agenda of those paying the fees and will come back with “why sure, it’s feasible.” If you really want an unbiased opinion, hire a firm to make an assessment of the Arcade itself and to recommend its future–and specify that all options are on the table, including demolition. That’s the study that ought to be done.

  3. Thomas E. Ruddick May 15, 2013 at 8:49 pm #

    Geoff, the costs will be covered by the interest groups who want to promote the Arcade as the new main library location. Sandy Mendelson has offered to pay for it himself if the study will also consider other buildings, including one that he owns that, I guess, he wants to get rid of. As I noted in my comments, consulting firms aren’t stupid–they understand that people hire them hoping for certain results, and so to maintain their chances of getting more work in the future, they strive to deliver for whoever is paying them–thus a “feasibility study” from the Arcade supporters likely will come to a foregone conclusion.

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