Jury awards Cushman Properties $30M in property rights case against city of Branson

A Taney County jury issued a 12-0 verdict worth $30 million against the city of Branson on Oct. 24 in a case pertaining to a dispute over water infrastructure and commercial land development.

The three-year-old civil lawsuit was brought by Branson-based plaintiff Cushman Properties LLC, which according to a news release characterized the dispute as one centered on constitutional property rights law. The city of Branson intends to appeal the verdict, calling it a “stunning decision,” according to a statement provided by the municipality.

A case summary presented to jurors as part of the official court record indicates the lawsuit was triggered by a dispute over Cushman Properties’ ability to develop some 292 acres it owns near Branson’s western edge, at the intersection of the Highway 76 entertainment strip and Missouri Highway 376.

Attorney Ric Ashe represented the family-owned company led by David Cushman and his sons, James and Andrew. According to the news release sent by Ashe’s law firm, Branson’s water system currently serves only 90 acres of the Cushman property. In 2018, the city rejected a major development project that would have upgraded infrastructure. In response, Cushman Properties demanded the city either provide water service or de-annex the property from city limits.

The release states that the municipality initially agreed to design and construct a new water tower and related upgrades, spending over $250,000 in engineering fees toward that goal, before abandoning the water tower project in mid-2022.

Ultimately, Cushman Properties argued that Branson had not provided suitable water supply to roughly 202 acres of the property in question, despite its duty by law, making it impossible for the company to use the value of the land. The company and Ashe argued this constituted a taking by the government, without compensation. The jury found that 202 acres of land in Branson with more than a mile of frontage along Branson’s Highway 76 commercial and entertainment strip was valued at some $30 million, according to the news release from Ashe’s law firm.

Ashe said via email that under U.S. constitutional doctrine, the law of inverse condemnation requires the transfer of the property to the city in exchange for compensation awarded by the jury.

“When and how the property is transferred is slightly unclear,” Ashe said. “Because the city intends to appeal, my plan is to submit a signed deed along with the judgment, along with some language making it clear that the deed isn’t effective until payment is made.”

The city of Branson denied it had any duty to provide water service suitable for commercial development on those 202 acres and asserted it provided water service to the property, according to the case summary.

In a statement provided to Springfield Business Journal on Oct. 27, the city of Branson adamantly disputed the jury’s conclusion.

“Last week’s stunning decision would turn settled precedent on its head, ignores undisputed evidence and reaches a conclusion that no reasonable reading of the law and facts would support,” the statement reads. “We intend to appeal immediately and are confident that a higher court will correct this undeniable error.”

An appeal had not been filed as of press time.

An agreement dating back to November 2001 cited by court records indicates Branson had agreed to provide water service to the Cushman property in exchange for the land’s annexation within city limits. Ashe said in the release that David Cushman agreed to sell waterfront property needed to develop Branson Landing in exchange for the annexation and city services, as well.

Court records show that prior to the jury beginning its deliberations, Taney County Judge Jeffrey M. Merrell announced the court’s ruling that under the annexation agreement, Branson had a duty to Cushman Properties to provide “a supply of water suitable for fire protection and commercial development.”

In the release, Ashe says inverse condemnation protects landowners against government actions that would deprive them of value linked to their properties.

“It’s a matter of constitutional law,” Ashe said in the release. “If the government takes away your right to develop your land, it’s the same as taking the land itself. And when that occurs, the Constitution requires the owner be paid the value of the taken property.”

Merrell has asked Ashe to provide a formal written judgment that is “consistent with the verdict” that was rendered by jurors.

Development history
The Cushmans have long sought to develop the subject land, which has been in the family since the 1940s.

In April 2018, David Cushman and his CP Branson LLC entity were rejected for a public financing plan requested from the city of Branson for the Branson Adventures project, according to past SBJ reporting.

CP Branson had sought $115.6 million in tax increment financing and sales tax revenue for Branson Adventures, which had an expected cost of nearly $446 million.

At the time, Cushman told SBJ that the board’s decision “sends a clear and negative signal to anyone considering bringing transformative business to this market.”

Cushman said at the time, “The fact that we have delivered countless data, answered even more questions and delivered the world’s foremost tourism economists to Branson didn’t matter. Branson today, tomorrow and after will be as these aldermen wished.”

Branson Adventures called for a hotel, a customizable whitewater rafting course and an indoor waterpark, among other amenities, on the land Cushman owns near the Highway 76 and Missouri Highway 376 intersection.

The 2018 opposition of the Branson Adventures project was not the first time that Cushman was handed a rejection for public financing from the city of Branson.

In 2006, Cushman unsuccessfully sought tax increment financing for a proposed $600 million Pinnacle Falls attraction, located on the same acreage, according to past reporting.

The European-hillside themed Pinnacle Falls called for a 300-suite hotel, indoor water park, specialty shops and restaurants, interactive fountains and a roughly $45 million aquarium.