ST. LOUIS - The Missouri Court of Appeals, Eastern District has affirmed judgment in favor of the Missouri Highways and Transportation Commission involving an office building owner who sought $5 million in damages over the construction of a sound wall on Interstate 64 in Chesterfield.
Scott Family Properties sued the commission claiming he was not given an opportunity to comment on the construction of the wall in 2015 adjacent to a building he owns. Scott claimed that violated Department of Transportation policy.
His St. Louis County Circuit Court lawsuit seeking $5 million in damages asked for inverse condemnation based on nuisance, claiming his ability to attract tenants was damaged.
The commission moved to dismiss the claim, arguing that state law does not recognize a protectable interest or right in the public visibility of one's property.
Circuit Judge Joseph S. Dueker granted the commission's motion, finding that Missouri precedent was on its side of the argument.
On appeal, Scott argued that such precedent doesn’t apply if the commission’s action was unlawful.
The three judge panel included Judges Lisa Van Amburg, Colleen Dolan and Sherri Sullivan.
"…[E]ven accepting Scott’s premise that the Commission’s procedural omissions were unlawful - or at least unreasonable – in satisfaction of the second element of nuisance, Missouri precedent still precludes an affirmative finding on the third element: injury," Van Amburg wrote.
She further wrote that to prevail on a claim for inverse condemnation, a landowner “must plead and prove an invasion or appropriation of some valuable property right” that “directly and specially affects the landowner to his injury.”
"Even assuming that the Commission’s procedural omissions were unreasonable, Scott cannot establish injury to a recognized property right so as to satisfy the elements of inverse condemnation based on nuisance. The trial court’s judgment dismissing Scott’s petition is affirmed," she wrote.