On March 13, 2020 Missouri governor Michael Parsons issued Executive Order 20-02 declaring that a state of emergency exists in the State of Missouri due to the COVID-19 pandemic. His declaration is effective until May 15, 2020 and may be extended. Missouri governors are empowered to declare an emergency under §44.100 of the Missouri Statutes. A declared emergency imparts to the governor certain extraordinary powers including the power to seize some property under certain circumstances. At this time, Governor Parsons has not indicated an intent to exercise that authority. However, in states where the impacts of the pandemic have been greater than currently exists in Missouri, governors have indicated that they would use similar powers granted by their different statutes in order to provide resources to health care workers.
Under normal conditions, when the State needs to purchase or temporarily use private property for a public purpose, it must institute eminent domain, or condemnation, procedures. Those procedures require that property owners received advance notice of a taking that includes a written offer for the property right to be acquired or used. The offer must be supported by an appraisal report or other financial data. After providing the necessary notices to the property owner, the State would then file a petition with the local circuit court to have the compensation due to the property owner determined by court-appointed commissioners. The judge that is assigned the case would also has the responsibility to determine that the property acquisition is for a public purpose and that the State has provided the owners with the necessary notices including a good faith offer. Even under the best of circumstances, it would take the State approximately four to six months from the first notice to the time that it takes ownership of the property it needs
Governor Parsons’ emergency powers established by Missouri Statute 44.100. Those powers include the ability to “seize, take or requisition” the following property:
- any means of transportation and fuel required to operate it (excluding railroads),
- any communication system,
- stocks of fuel, and
- facilities for housing, feeding and hospitalization of persons.
These powers are limited to circumstances that are necessary for the “effective protection of the public.” The normal notices, protections and procedures provided property owners in eminent domain cases do not apply.
Even though the preliminary notices and procedures for eminent domain cases do not apply, owners of property that is “seized, taken or requisitioned” under state emergency powers do have the right to damages and compensation. The same statute that empowers the governor to declare a state of emergency also provides that property owners may petition the circuit court to appoint commissioners to “assess the damages which the owners may have sustained by reason of the appropriation.” The statute also states that damages will be determined in the same manner eminent domain cases. This would presumably include the right to a jury trial. If a property owner believes that their property has been seized but that the seizure was not necessary for the protection of the public, that owner may be able to seek an injunction to stop the seizure.
The attorneys at Denlow & Henry are experienced eminent domain attorneys that can assist private property owners faced with any potential taking issues in Missouri related to the COVID-19 pandemic.