International Municipal Lawyers Association - Local Government Blog

Kelo Concerns Cause Court to Convene Commissioners | December 22, 2008

Posted by: Dwight Merriam, Partner, Robinson & Cole, LLP

One of the fallouts of the Kelo decision (Kelo v. City of New London, 545 U.S. 469 (2005) available at was the dog pile of 42 states which adopted new legislation and constitutional amendments that crushed the old ways of eminent domain. 

When Kelo was decided I had T-shirts made with Susette Kelo’s pink house on the front. The house has been saved, you know, moved to the other side of town and maintained in its famous pinkness under agreement for 99 years. Click here ( to see it all, including the bronze monument and the house in its new location.  Maybe it will become one of those New England sites school children visit – Faneuil Hall, Plymouth Rock, Concord’s Old North Bridge, Susette Kelo’s pink house…

On the back of the T-shirts I had printed “Winning the Battle, But Losing the War?” because I thought that with the split opinions in the Connecticut Supreme Court and U.S. Supreme Court and all the publicity, this decision was destined to foment change.  So it did, beyond what most of us imagined.

One of those changes was in Missouri where the state legislature added a valuation kicker in the form of “heritage value” as an element of compensation.  The Missouri Bar has a useful overview of the changes.  Click here or go to  Here’s how it works.  If the property has been in the same family for at least 50 years, and this includes business property with fewer than 100 employees, then the compensation is 50% more than the fair market value.

On December 16, 2008, the Missouri Supreme Court had its first shot at interpreting how this compensation kicker was to be determined.  C. F. White Family Partnership v. Roldan.  Click here go to  The Missouri Supreme Court held 7-0 that the trial court erred in failing to have the court-appointed eminent domain commissioners decide whether property met the criteria for payment of heritage value. Section 523.039(3) provides, in relevant part, that: “The property owner shall have the burden of proving to the commissioners or jury that the property has been owned within the same family for fifty or more years.”  The Court found this language dispositive.

The Court then voted 6-1 to issue a writ directing the trial court to have the commissioners make the determination.  The holdout justice, Judge Breckenridge, makes the argument that the commissioners become “functus officio” because of the jury trial on valuation. 

“Functus officio” sounded quite awful, something like what you don’t want your veterinarian diagnosing in your prize heifer, so I looked it up.  You learn something every day.  Basically, her point is that jury will now have to decide the issue anyway, so why bother to put the question back to the commissioners.

There are other procedural twists and turns discussed in the decision.  The practical lesson from this case is that even the simplest of notions can be difficult to make operational when tinkering with decades old procedures.  Other states will likely have their own challenges in implementing their post-Kelo laws. 

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1 Comment »

  1. […] This case, and its context as a post-Kelo remedy is discussed by Dwight Merriam, Esq. on the IMLA blog this week here. […]

    Pingback by Missouri Supreme Court Enforces Heritage Value as Part of Just Compensation in Eminent Domain Matters « LAW OF THE LAND — December 25, 2008 @ 1:15 pm

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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.







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