Section 24 Scope of Hearing and Preferential Setting in Certain Redevelopment Cases

• Library: Condemnation Practice 2009

The condemnation hearing is an evidentiary hearing conducted by the circuit court for the single purpose of determining whether the condemnation sought in the petition is authorized by law. Therefore, the scope of relevant evidence is usually narrow. To prove that the taking is authorized by law, the condemner must usually only establish the following:

• Due notice has been given of the pendency of the petition to the necessary parties. Section 523.040, RSMo Supp. 2008

• The condemnor has the constitutional, statutory, or ordinance authority to acquire the property by eminent domain. State ex rel. Gove v. Tate, 442 S.W.2d 541 (Mo. banc 1969)

• The condemnor has complied with the constitutional and statutory prerequisites to the exercise of its power of eminent domain. State ex rel. Devanssay v. McGuire, 622 S.W.2d 323 (Mo. App. E.D. 1981)

• The purpose of the taking is for a public use. State ex rel. Clothier v. Yeaman, 465 S.W.2d 632 (Mo. banc 1971)

At the hearing, the burden of proof is on the condemner, who may not rest on its pleadings but must provide affirmative evidence of the lawfulness of the taking. A landowner seeking to defeat the condemnation must be prepared to adduce evidence to disprove one of the above elements.

In addition to the foregoing elements, in a redevelopment case in which the taking is based on a legislative determination that a defined area is “blighted,” if this determination is challenged by the landowner, the trial court must find that the declaration of “blight” was supported by “substantial evidence.” Section 523.261, RSMo Supp. 2008; Centene Plaza Redevelopment Corp. v. Mint Props., 225 S.W.3d 431 (Mo. banc 2007).

For the court to make such a finding, the evidence must show that the condemning authority considered each parcel of property in the defined area individually as to whether each met the statutory definition of blight and that a preponderance of the properties within the targeted area are blighted. Section 523.261 and § 523.271, RSMo Supp. 2008. See Allright Props., Inc. v. Tax Increment Fin. Comm’n of Kansas City, 240 S.W.3d 777 (Mo. App. W.D. 2007).

If the legislative determination of blight is challenged in a condemnation proceeding, § 523.261 requires the trial court to give...