Missouri high court overturns ruling blocking eminent domain

JEFFERSON CITY, Mo. — On Tuesday the state Supreme Court overturned a lower court's ruling that would have blocked many communities from using eminent domain for private development supported by tax breaks.

The ruling could affect cities and towns where as many as two-thirds of Missourians live. It also clears the way for the St. Louis suburb of Arnold to take the dentist office of Homer Tourkakis — if the city can prove the property is blighted.

Property rights groups condemned the ruling, warning that it could prompt more local governments to take private property. And Tim Sandefur, an attorney who represented Tourkakis, called the decision "a disaster."

"This is scary," said Ron Calzone, the chairman for Missouri Citizens for Property Rights. "This is a scary, scary decision."

But attorney Jerry Carmody, who represents the city of Arnold and has represented property owners and condemning authorities in other eminent domain cases, said those fears were overblown. Carmody said the bigger surprise came when a trial court interpreted the state constitution to allow only some Missouri cities to use eminent domain.

The Supreme Court's ruling "just confirms what we have always understood the case to be — that all municipalities in the state of Missouri have the power to use eminent domain within constitutional and statutory restrictions to eradicate blight," he said.

Carmody said Arnold plans to continue seeking Tourkakis' property.

At issue is an attempt by Arnold to make room for a redevelopment project near Interstate 55 and Highway 141. In 2005, the city approved an ordinance declaring Tourkakis' office blighted and tried to use a law allowing tax increment financing, in which a portion of future tax revenue is diverted to pay for the project. Part of that provision also lets municipalities use eminent domain to take blighted properties, as long it's not prohibited elsewhere in state law.

The Missouri Municipal League, in a written statement, said redevelopment often doesn't require using eminent domain.

"Missouri municipalities use eminent domain only as a last resort when a few property owners seek to hold up the redevelopment of a blighted area," executive director Gary Markenson said.

The state constitution allows that "laws may be enacted, and any city or county operating under a constitutional charter may enact ordinances, providing for the clearance, replanning, reconstruction, redevelopment and rehabilitation of blighted, substandard or insanitary areas" using eminent domain.

During oral arguments in January before an overflow audience, Tourkakis' attorneys argued that means noncharter cities such as Arnold can't use eminent domain.

A charter city is a municipality that had at least 5,000 people when it was incorporated and whose residents have approved what amounts to a local constitution. Missouri has 37 charter cities, including large ones such as Kansas City, St. Louis and Springfield, and smaller ones such as Ellisville, Palmyra and St. John.

Charter cities get their power from the state constitution, and noncharter ones get theirs from laws approved by the legislature.

The Supreme Court, by a 6-1 margin, ruled that the state constitution doesn't limit eminent domain power to charter cities. That's because the legislature can pass bills that apply to noncharter cities.

Writing for the court, Judge Mary Russell said noncharter cities get the authority to use eminent domain from laws, including the one allowing tax increment financing.

"The legislature has the right to authorize the exercise of the sovereign power of eminent domain," Russell wrote. "Unless restricted by the constitution, the power is unlimited and practically absolute."

Judge Richard Teitelman, in a dissenting opinion, wrote that the state constitution requires noncharter cities to get express approval from the legislature to use eminent domain. He said Arnold hasn't received that.

Sandefur and Calzone each said the high court's decision means property rights groups need to amend the state constitution to protect property owners. Missouri Citizens for Property Rights already has been circulating petitions to amend the state constitution in two places to bar the use of eminent domain for most private uses.

"As sick as I am with the decision, I'm even madder," Calzone said. "And I'm more resolved to do something."

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Case is City of Arnold v. Homer R. Tourkakis, SC88647.

On the Net:

Supreme Court: http://www.courts.mo.gov/page.asp?id27