Burger King prevails in North Kansas City eminent domain case

North Kansas City has lost an appeal over its attempt to condemn a Burger King in what it contends is in a blighted area. The fast-food restaurant is the only property the city doesn’t control in a 57-acre parcel slated for redevelopment.

In a unanimous decision, the Missouri Court of Appeals for the Western District late Tuesday denied the city’s attempted use of Missouri Revised Statute 88.497 to declare the entire area blighted and, thus, to condemn the Burger King.

That statute says third-class cities may take private property in particular instances, including for “establishing, opening, widening, extending or altering any street, avenue, alley, wharf, creek … and for any other necessary public purposes.”

It was the last clause that the city hung its legal argument on, arguing that the area was blighted, and that eliminating blight fell under the “any other necessary public purposes” clause.

But the court disagreed, saying using that particular statute in an attempt to take control of the Burger King is inappropriate.

“The right of eminent domain must be expressly given or necessarily implied in the statute, and we will not imply or infer such right from ‘vague or doubtful language,’” the court wrote.

“The right of eminent domain must be expressly given or necessarily implied in the statute.”

Indeed, in the opinion, the court suggested other avenues the city might have tried, including the Urban Redevelopment Corporations Law or the Real Property Tax Increment Allocation Redevelopment Act.

When reached for comment, Thomas E. Barzee Jr., city attorney for North Kansas City, hung up. Reached again, he declined to comment on the case, saying he never discusses his client’s cases with the media.

Robert Denlow, of Denlow & Henry in St. Louis, represented the entity that owns the Burger King, K.C. Beaton Holding Co.

“They did something novel: They didn’t use any of the existing redevelopment statutes, like tax increment financing,” Denlow said. “Instead, they wanted to void all redevelopment statutes and used a different one to take the Burger King, but the trial judge said no, and now that’s been affirmed.”

Denlow said that, at one point, the city had made an $850,000 offer for the property. However, Denlow said the owner didn’t want to sell.

“That was well below any valuation of a fast-food place like Burger King,” Denlow said. “It’s the most successful of the 24 Burger Kings he owns.”

Denlow declined to reveal annual revenues for the restaurant.

Meanwhile, he said the situation is filled with irony.

“Every city is looking for tax revenues, and my client is a good corporate citizen, paying taxes and employing people, and yet they’re being attacked,” Denlow said. “Burger King has said all along it doesn’t want to stop progress, it wants to be a part of it.”

The case is City of North Kansas City, Missouri v. KC. Beaton Holding Company LLC et al., WD-76110