Area lawmaker involved in land dispute with Cape

A local state representative and former city councilwoman is in a legal dispute with the city of Cape Girardeau.

Since late July, Rep. Kathy Swan and her husband, Reg, have been defendants in a condemnation case.

The Swans declined to comment for this article, and messages left for the attorney representing the city, Mary Eftink Boner, were not returned Friday.

The Swans own land in the Ashland Hills Estates Second Subdivision, which lies in the path of the next section of Veterans Memorial Drive to be built by the city. Cape Girardeau has built the road that runs adjacent to Interstate 55 in piecemeal fashion.

The road will be continued from Scenic Drive to Hopper Road, per Transportation Trust Fund 4 plans. With that addition, motorists would have a more direct path to U.S. 61 and locations along the highway, such as the Missouri Veterans Home.

As the Missouri Office of the Ombudsman for Property Rights explains on its website, a property owner may have "the nicest home in the state and still be in a blighted area and therefore be subject to condemnation." This is possible because Missouri law includes multiple definitions of "blight."

A blighted area could be:

• An area where factors such as dilapidation, overcrowding or lack of adequate facilities are detrimental to safety or health;
• An area which, "by reason of the predominance of defective or inadequate street layout," insanitary or unsafe conditions, deterioration, improper subdivision or obsolete platting or other factors "retards the provision of housing accommodations or constitutes an economic or social liability or a menace to the public health, safety, morals or welfare in its present condition";
• Or an area within a city determined by its governing authority to have become an economic and social liability because of age, obsolescence, inadequate or outmoded design or physical deterioration.

Declaring a property is blighted often is among the first steps used by a government to acquire property for redevelopment. Cape Girardeau's code of ordinances says the city has the power to "acquire interest in real estate for any public use by gift, devise, purchase, lease, dedication or the exercise of the power of eminent domain by condemnation proceedings."

Court documents indicate the city is seeking to acquire by condemnation permanent right-of-way and drainage easements, as well as temporary construction easements on tracts of land owned by the Swans. An amended petition filed by Boner, the city's attorney, on Oct. 1 says the temporary construction easement is to be used only during the construction of the street and stormwater erosion control systems, and use will not extend beyond final acceptance of the project by the city council, or no later than Oct. 1, 2017.

The same document also says the city has attempted to agree with the property owners on the land's fair market value and determine fair compensation but was unable to come to an agreement.

A response to the petition was filed Oct. 6 by the defendants' attorney, Nancy L. Browne. It acknowledges the failure to come to an agreement on compensation for the property, but takes issue with the temporary construction easement.

"Plaintiff's plans for the area to be taken for Plaintiff's alleged temporary construction easement call for substantial changes to be made to the property," the document says, "including but not limited to the removal of all mature trees and significant changes to the grade of the property, both of which will extend beyond final acceptance of the project by the city council of the city of Cape Girardeau upon completion, and both of which will have a permanent effect on the value of the property after completion of the project."

In its conclusion, the responding document requests the petition be dismissed with prejudice at the plaintiff's costs.

Online court records show a bench trial has been scheduled for Nov. 19 at the Cape Girardeau County Courthouse in Jackson. The case is being handled by an out-of-circuit judge. Associate circuit judge Robin Fulton of Madison County was assigned to the case in September.

Until the condemnation process is complete, the city cannot move forward with the Veterans Memorial Drive project. City engineer Casey Brunke said no construction date has been set for the project, but the city is ready to move forward once it gets through condemnation and remains hopeful the process could begin this year.

srinehart@semissourian.com

(573) 388-3641

Pertinent address:

Veterans Memorial Drive and Scenic Drive, Cape Girardeau, Mo.