'Heritage value' appeal heard before students

The owner of historic property along Bloomfield Road should not be entitled to "heritage value" compensation for land taken to construct street improvements and a recreational trail, an attorney for the City of Cape Girardeau told a panel of appellate judges Wednesday.

But an attorney for the owners of the Elmwood Farms property argued the trial judge was correct in ordering the city to pay an additional $45,000 to property owners Patrick and Cheryl Evans.

It was one of four cases heard by appellate judges who held court on stage at Cape Girardeau Central High School's Kinder Hall in front of hundreds of students. The judges held court at the school in an effort to showcase the judicial system to students.

A three-judge panel headed by Lisa Page, chief judge of the Missouri Court of Appeals Eastern District, Southern Division, heard the city's appeal. Judges Sherri Sullivan and Angela Quigless also served on the panel.

After hearing arguments, the judges took the case under advisement. A decision could come within 30 days, according to court officials.

If the appeals court rules in favor of Elmwood Farms, the city will have to pay the additional $45,000, plus interest that has accrued while the case has been litigated, Elmwood Farms' attorney, James F. Waltz, said following oral arguments.

Judge Rob Fulton ruled in October 2017 the city must pay heritage value in addition to the $90,000 the city previously agreed to pay to settle the land condemnation.

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 a recreation trail did not prevent the property owners from using the property in "substantially the same manner" as before the July 2016 taking of the land.

Attorney Mary Boner, representing the city, told the appeals court Patrick Evans used "the front portion of his property as a hay field."

She argued the transportation project did not change the use of that land.

But Waltz, attorney for the property owners, said the relocation of the road and construction of a recreational trail have altered the historic site.

The city took property that included a front gate, dating from 1874, he said. The gate is in the middle of the easement and borders the city trail, Waltz said in a brief filed with the 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 judges.

Before Fulton's ruling, another circuit judge had weighed in on the case.

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."

Boner wrote in her brief to the appeals court that Lewis' ruling "is the law of the case such that the property owner does not get a second bite at the apple."

But Waltz argued that when he filed legal "exceptions" in the case after Lewis' decision, it created a new lawsuit. As a result, Lewis' ruling had no bearing on the case going forward, he said.

In addition, the Cape Girardeau City Council approved the $90,000 settlement in August 2017. As part of the settlement, the parties agreed to let Judge Fulton decide whether heritage value should apply.

The appellate judges questioned Boner's position that Judge Lewis' decision should carry weight in this case.

Page, the chief judge, agreed with Waltz the settlement agreement stipulated the heritage value issue would be tried and decided by Judge Fulton.

mbliss@semissourian.com

(573) 388-3641