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Court clarifies how to determine heritage value' in condemnations.

Byline: Nicholas Phillips

In a case of first impression, the Missouri Court of Appeals Eastern District has clarified how a judge may award "heritage value," or the amount of special damages owed to a landowner who in a condemnation loses land that has been in his or her family for a half-century or more.

The panel's March 5 opinion, authored by Chief Judge Lisa P. Page with Sherri B. Sullivan and Angela T. Quigless concurring, specified which portions of land involved in a condemnation are relevant to the judge's decision.

This case arose from a dispute between the owners of Elmwood Farms, a historic property in southeast Missouri, and the City of Cape Girardeau.

According to court filings, the property now known as Elmwood was acquired by Spanish land grant in 1798 and has belonged to members of a common family line for 220 years. It encompasses 70 acres, 17 of which abut Bloomfield Road in the southwest part of Cape Girardeau.

In 2016, the city sought to widen that road, add curbs and gutters, and build a walking trail. Through condemnation, the city took 1.42 acres of Elmwood's property for road right-of-way and 0.55 acres for a permanent trail easement.

After Elmwood's owners protested the amount of damages awarded to them, they entered into a stipulation for consent judgment with Cape Girardeau granting Elmwood Farms $90,000 as fair market value for their condemned property. The parties agreed to leave the question of heritage-value compensation for Judge Robin E. Fulton to decide. That judge decided to award Elmwood $45,000 in heritage value. The city then appealed.

The city argued that the judge erroneously stated the legislature's intent behind the statute codifying just compensation. Under that law, if a piece of property owned within the same family for at least 50 years is taken by condemnation, and the taking prevents the family from utilizing the property in substantially the same way it was utilizing it on the day of the taking, the family would be entitled to the fair market value plus the heritage value.

In the city's view, legislators intended for the judge to gauge whether the taking of the land constrained utilization only in the property that remained after the taking. The appeals judges disagreed. The legislature, they concluded, wanted the judge to focus on constraints to utilization not just in the remaining property but in the condemned property as well which is to say, the entire property.

The panel also gave approval to the way the judge arrived at his decision. He heard evidence, considered the record as a whole and applied a "before" and "after" test: Before the taking, the landowners were using the property one way, but after, the exercise of their landowner rights was restricted.

James F. Waltz, attorney for Elmwood, lauded the decision as one that "should give some guidance as to what judges are entitled to do" in determining heritage value. He added: "It was pretty much what we thought would happen and should happen."

Mary Eftink Boner, who represented Cape Girardeau, said she was disappointed by the decision. She had noted in her brief that the Bloomfield Road project required the removal of 16 trees the landowner said had provided shade and aesthetics. But that tree removal, in her view, didn't result in a loss of utilization.

"'Utilizing' is an action word," she said. "Passive uses such as looking at a tree do not rise to the level of utilizing." She added that the landowner had been using that part of the property only to mow hay an activity that the condemnation has not blocked him from continuing on the land that remains.

The case is City of Cape Girardeau v. Elmwood Farms L.P., f/k/a Elmwood Farms Limited Family Partnership L.P., ED106181

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Publication:Missouri Lawyers Media
Date:Mar 7, 2019
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