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24 ship's desire to control airport operations."286 The court some project delays that ultimately result in higher held that the purpose of a condemnation must be exam- project costs as well."291 ined when the record suggests "discriminatory or ille- In Missouri, the Missouri Highways and Transporta- gal" purpose.287 On remand, the trial court would have tion Commission (MHTC) "continues to use eminent to consider whether there was a public purpose that domain but the post-Kelo laws have affected its use. was sought to be achieved by the condemnation.288 The condemnation process now takes additional time In sum, although several takings since Kelo have and costs significantly more money."292 Missouri re- been challenged on the basis that they were pretextual, ported that between fiscal year 2008 and fiscal year the courts for the most part have held that the takings 2011 to date, the Missouri DOT has spent an additional were not pretextual, especially when a highway project $7.8 million in heritage293 and homestead294 payments was involved. As seen, however, a case may be re- as provided in the new post-Kelo statutes.295 "[T]he new manded to the trial court if a pretext claim has not been post-Kelo laws statutorily redefined the concept of `fair examined carefully in light of evidence suggesting that market value' in a manner that will increase property a taking was for other than a public purpose. acquisition costs."296 Nevada reported that its post-Kelo laws have made IX. THE EFFECT OF POST-KELO LAWS ON the department "consider potential settlements that we TAKINGS FOR TRANSPORTATION PROJECTS may have rejected in the past, thereby increasing ac- quisition cost. We are also experiencing several inverse A. Post-Kelo Reforms' Effect on Cost and Timely condemnation cases...."297 The full effect of the changes Delivery of Projects in Nevada are not known because the amendments were added recently and because the downward trend in real property prices has reduced right-of-way pro- 1. Cost of Projects gram costs.298 As for whether any post-Kelo reforms have affected Wyoming also cited higher costs as an effect of post- the cost of transportation projects, the DOTs in Califor- Kelo reforms because of increased steps and time nia, Iowa, Missouri, Nevada, and Oregon stated there needed for an acquisition, including more attorney time has been some post-Kelo impact. by staff and consultant attorneys.299 Table 3. Post-Kelo Reforms' Effect on the Cost of Transportation Projects 291 Id. 292 Transportation depart- 21 (81 percent) MHTC's Survey Response, dated Mar. 10, 2011. 293 ments reporting no effect on A "heritage value" is "the value assigned to any real the cost of transportation property, including but not limited to real property owned by a projects business enterprise with fewer than one hundred employees, that has been owned within the same family for fifty or more Transportation depart- 5 (19 percent) years, such value to be fifty percent of fair market value...." ments reporting some effect MO. REV. STAT. 523.001(2). on the cost of transportation 294 A "homestead taking" is projects any taking of a dwelling owned by the property owner and functioning as the owner's primary place of residence or any tak- California stated that "[b]ecause of greater potential ing of the owner's property within three hundred feet of the for project delays the effort to avoid eminent domain owner's primary place of residence that prevents the owner from has increased somewhat. The Department has seen a utilizing the property in substantially the same manner as it is rise in costlier administrative settlements."289 Califor- currently being utilized.... nia's experience is that "[t]he Department has a greater MO. REV. STAT. 523.001(3). 295 pre-disposition to settling [right-of-way] matters rather MHTC's Survey Response, dated Mar. 10, 2011. 296 than risk potential schedule delays going through an Id. The Missouri statute provides that "fair market eminent domain process and is willing to pay higher value" is administrative settlement amounts than `pre-Kelo' the value of the property taken after considering comparable days."290 Moreover, when "eminent domain is necessary, sales in the area, capitalization of income, and replacement cost less depreciation, singularly or in combination, as appropriate, the [Order of Possession] hearing process has caused and additionally considering the value of the property based upon its highest and best use, using generally accepted ap- praisal practices. If less than the entire property is taken, fair market value shall mean the difference between the fair market value of the entire property immediately prior to the taking and 286 Id. at 315, 976 A.2d at 1119. the fair market value of the remaining or burdened property 287 Id. at 320, 976 A.2d at 1122. immediately after the taking.... 288 Id. at 320, 976 A.2d at 112324, cert. denied, 2010 N.J. MO. REV. STAT. 523.001(1). 297 LEXIS 123 (Jan. 19, 2010). Nevada DOT's Survey Response, dated Mar. 14, 2011. 289 298 Caltrans' Survey Response, dated Mar. 18, 2011. Id. 290 299 Id. Wyoming DOT's Survey Response, dated Mar. 22, 2011.