We often jokingly suggest that in eminent domain, "it's good to be the King!" quoting that eminent eminent domain scholar Mel Brooks. We think this catchphrase aptly describes the "most awesome grant of power," City of Oakland v. Oakland Raiders, 220 Cal. Rptr. 153, 155 (Cal. App. 1985), under which the condemnor has a very nearly unfettered ability to take property.
But in recent decision from the Missouri Court of Appeals it was good to be the landowner -- the owner of a Burger King restaurant -- because it had the good sense to hire Robert Denlow, our Owners' Counsel colleague (and occasional Sunday golf partner) (that's Bob in the above video, a 2013 interview). In City of North Kansas City v. K.C. Beaton Holding Co., No. WD76068 (Jan. 14, 2014), the Missouri Court of Appeals, Western District, held that the city, a "third class" non-charter city under Missouri's municipal laws, could not take the property because the legislature has not delegated it the power of redevelopment.
The city wanted to redevelop the area surrounding the Burger King, and prepared blight studies which concluded that a preponderance of the area was blighted, although the Burger King property itself was not. The city instituted an eminent domain action, and the owner objected to the taking. The trial court concluded that the area was blighted, but that the city could not take the property. Both parties appealed to the Western District.
The court found it dispositive that under the Missouri Constitution, non-charter cities have the power to condemn property to eliminate blight, but that the Missouri Legislature has not adopted statutes implementing that provision. The court rejected the city's argument that its general power to condemn property "for any other necessary public purposes" was sufficient it allow it to condemn here. The court concluded that blight elimination was not included within the general grant of power in light of the legislature's leaving out blight elimination. Slip op. at 8-10. The court therefore affirmed the trial court's determination that the city could not take the Burger King property.
The court also dismissed the cross-appeal, concluding that Burger King was not a party "aggrieved" by the trial court's judgment because it obtained the relief it sought -- dismissal of the eminent domain complaint -- but disagreed with the trial court's conclusion that the city properly adhered to the process of finding the property was blighted. Since Burger King "had it its way" (sorry, we just had to give in to the temptation of just one Burger King reference), it could not challenge the judgment on appeal.
But no mind: as Bob noted in this summary of the case, "[n]o other city to my knowledge has ever tried to do this [avoided the redevelopment law by using general purpose condemnation]. And I’ve been doing this for more than 30 years," and that was enough for a win for the property owner.
City of North Kansas City v. K.C. Beaton Holding Co., No. WD76068 (Mo. App. Jan. 14, 2014)
