Appeals court: Cape city must pay 'heritage value' in Bloomfield Road condemnation case

A Missouri appeals court has upheld a trial judge’s decision the City of Cape Girardeau must pay “heritage value” compensation to the owners of a Bloomfield Road property.

The case, which dates back more than two years, involves the city’s taking of Elmwood Farms land along Bloomfield Road for street improvements and construction of a walking trail.

Attorney James F. Waltz, who represented property owners Patrick and Cheryl Evans, had argued trial Judge Ron Fulton was correct in ordering the city to pay an additional $45,000, pushing the total compensation to $135,000.

The three-judge panel of the Eastern District Court of Appeals unanimously agreed in its ruling Tuesday.

The city contended the trial court erred in its interpretation of the legislative intent and language of the state law and in permitting a second hearing on the question of heritage value.

But the appeals court rejected all of the city’s arguments.

City attorney Eric Cunningham expressed disappointment in the ruling.

“Anytime a court rules against you, you are disappointed in the decision,” he said.

City officials have not decided whether to appeal the case to the Missouri Supreme Court. But Waltz expressed doubt the high court would consider the case. Waltz said he believes the appellate ruling will bring an end to the case.

In the appeals court ruling, Chief Judge Lisa Page wrote state law requires the trial court to assess heritage value if the taking “prevents the owner from utilizing property” in the same manner it was used before the taking.

Judge Fulton’s interpretation of the law “was consistent with the plain language of the statute,” Page wrote.

In the nine-page ruling, Page wrote the city and Elmwood Farms’ owners previously had agreed, as part of a settlement in the original condemnation case, to allow the issue of heritage value to be decided by a judge.

The city agreed to pay $90,000 in compensation, but opposed paying an additional amount for heritage value.

Page wrote the city appealed “something it specifically consented to: the judicial determination of heritage value. The city cannot now assert that following such procedure was in error.”

Waltz said, “The city never challenged the facts.” Rather, he said, the city challenged the process.

Walz said there was plenty of evidence offered at trial relocation of the road and construction of a recreational trail altered the historic site.

The city took property that included a front gate, dating from 1874. The gate is in the middle of the easement and borders the trail, Waltz wrote in a brief to the appeals court.

Trees were removed, the entrance to the property was narrowed and the grade of the street was changed, all of which resulted in “a great loss” of aesthetic value, Waltz told the appeals court when it heard the case Oct. 31 at Cape Girardeau Central High School’s Kinder Hall.

Under a state law, enacted in 2006, a court must approve a 50 percent increase in the condemnation payment if it is found the land had heritage value.

In order to qualify, a property owner must show the land has been in their family for at least 50 years.

Both sides agreed in this case the Spanish-land-grant property was settled by a Cape Girardeau pioneer family and has been in the same family for more than 200 years.

But the city contended the taking of land for reconstruction and widening of Bloomfield Road and the addition of the recreation trail did not prevent the property owners from using the land in “substantially the same manner” as before the July 2016 taking of the land.

Attorney Mary Boner, representing the city, told the appeals court last year the front part of the property was used as “a hay field.” The project did not change the use of the land, she argued.

As part of the initial condemnation process, court-appointed commissioners had concluded in 2016 the city should pay $55,030 to Elmwood Farms. But the property owners argued for much greater compensation.

Judge Ben Lewis upheld the commissioners’ decision in July 2016.

In his decision, Lewis said the owners were not entitled to heritage value on top of the regular compensation because the historic home “will not be disturbed or diminished by the road improvement or the walking trail.”

But after further litigation, stipulated in the settlement agreement, Judge Fulton ruled in October 2017 that Elmwood Farms was entitled to heritage value.

The same year, the city settled a condemnation case with state Rep. Kathy Swan and her husband, Reg.

The city agreed to pay $112,500 for taking of the Swans’ property for the Veterans Memorial Drive construction project after the Swans sued the city, arguing the city had not offered fair compensation for the land. The city also agreed to other settlement terms related to site maintenance and access.

mbliss@semissourian.com

(573) 388-3641