The $30 million water fight: Why Branson says it owes nothing

A massive legal battle continues in Taney County, Missouri, involving a property developer, the City of Branson, and a $30 million jury verdict. The city of Branson recently filed its appeal documents regarding the judgment. The following reports on some of the information contained in those documents.

The dispute centers on a large tract of land owned by Cushman Properties, LLC. In 2022, a jury awarded Cushman this staggering sum after the developer claimed the City “took” their land rights by failing to build a water tower. The City of Branson is fighting back, asking the court to throw out that verdict. The City argues that the jury was misled, the damages are illegal and the entire lawsuit is based on a misunderstanding of what a city government is actually required to do.

The core of Cushman’s lawsuit relies on a legal doctrine known as “inverse condemnation.” This usually happens when the government does something that destroys the value of private property—like flooding land to build a dam or blocking access to a road—without formally buying the land. Cushman argued that when the City abandoned plans to build a water tower in July 2022, it effectively destroyed the potential to develop its land for commercial use.

However, the City argues that “doing nothing” is not the same as taking property.

In their legal motions, the City asserts that inverse condemnation requires an affirmative act—an invasion or occupation of the land. They argue that simply changing a plan or deciding not to build a discretionary project is not a constitutional violation. The City claims that if governments were liable whenever they canceled a project, they would effectively become “insurers” of every private developer’s business plan, creating a dangerous precedent for taxpayers.

A significant point of contention is the “2001 Sewer Services, Facilities, and Annexation Agreement.” The judge initially ruled that the contract created a duty on the City to provide water service suitable for commercial development. The City argues this ruling was dead wrong and wants the judgment amended.

According to the City, the text of the 2001 agreement explicitly places the burden of infrastructure on the developer, not the taxpayer. Paragraph 2 of the contract states that the Owner (Cushman) is responsible for the design and construction of water lines and facilities on the property, as well as the “water volume requirements generated thereby.”

The City argues its only obligation under the contract was to build specific sewer lines, and that obligation ended strictly “to the point of Owner’s property line.”

The City contends that asking the taxpayers to build a water tower to boost pressure inside private property contradicts the clear public-private divide established in the contract.

A key part of the developer’s argument was that the City failed to provide water pressure of at least 50 PSI (pounds per square inch). However, the City points to the testimony of Kendall Powell, a former utilities director and the plaintiff’s own witness. Powell testified that 50 PSI is not a legal requirement. The International Residential Code only requires a pressure range of 20 to 30 PSI, which the City’s system meets.

Powell admitted that 50 PSI is just a level where people complain less, not a legal standard. Furthermore, the City emphasizes that it never refused to connect the property to water; the system works and is available, just not necessarily at the high pressure the developer prefers, without adding their own pumps or infrastructure.

Perhaps the City’s strongest argument concerns the $30 million damages award. Under Missouri law, when property is damaged, the payment is generally capped. It is limited to the lesser of two amounts: the land’s lost market value or the cost to repair the damage.

The evidence showed that building the water tower—the “repair” that would fix the problem—would cost about $4.5 million. The City argues that a $30 million verdict is legally irreconcilable because it vastly exceeds the cost to fix the issue.

The City claims the jury relied on speculative testimony from valuation witness Robert Huels, who estimated what the land would be worth in a hypothetical future rather than its current fair market value.

Finally, the City argues the lawsuit is too old. Statutes of limitations set deadlines for filing lawsuits. The City argues that if Cushman believed the City had a duty to provide high-pressure water, that dispute arose years ago when the City’s position on infrastructure became clear, not in 2022. By waiting until 2022 to sue, the City argues the developer is trying to revive a “stale” breach-of-contract claim by dressing it up as a constitutional crisis.

The City of Branson contends that it fulfilled its legal duties by bringing utilities to the property line. They argue that the developer’s inability to build a commercial district without spending their own money on infrastructure is a business problem, not a constitutional taking. By appealing to the contract’s text and state laws on damages, the City hopes to overturn what it views as an illegal $30 million windfall.