Adverse Possession and the Little Missouri Appeals Court That Said She Could In The Face Of FERC

Ameren continues to claim "fee simple" ownership of the project boundary at the Lake of the Ozarks.  Despite decades of occupying and using these properties (as allowed for by the easement in our deeds), they still claim the absolute right of ownership that is known as "fee simple" ownership.  The FERC also notes that it does not allow the interests of private property owners to "override" the public use of the project boundary.  Thus, between the FERC and Ameren what is a property owner to do? 

Let's see... if they are not willing to acknowledge the easements that have been held and honored for decades as an instrument that grants property owners the right to said property...maybe we should look at how Missouri Courts regard adverse possession in situations with the FERC and a utility company like Ameren to get an idea as to whether or not Lake of the Ozarks residents have the reasonable expectation to any protections based on what the state of Missouri says about a dilemma like ours. 

ADVERSE POSSESSION

http://www.websters-dictionary-online.org/definitions/Adverse%20Possession

Defintion:  In common law, adverse possession is the process by which title to another's real property is acquired without compensation, by, as the name suggests, holding the property in a manner that conflicts with the true owner's rights for a specified period of time. Circumstances of the adverse possession determine the type of title acquired by the adverse possessor, which may be fee simple title, mineral rights, or another interest in real property.

Adverse possession requires five elements in regards to the possession of the property^[1]:

1. Actual possession: its a function of the type of property, location, and uses. Paying taxes may or may not be required as proof.....

2. Open and notorious: adverse possessor’s use of the property is so visible and apparent that it gives notice to the legal owner that someone may assert claim.

3. Exclusive: adverse possessor holds the land to the exclusion of the true owner.

4. Hostile or adverse: Objective view: used without true owner’s permission and inconsistent with true owner’s rights.

5. Continuous: adverse possessor must, for statute of limitations purposes, show that property was held continuously for the entire limitations period. Must use as a true owner would for that time. When is the use significant enough to start the running of statute of limitations. This element is focused on adverse possessor’s time on the land, not how long true owner has been dispossessed of it.

In addition, some courts require (by common law or statute):

6. Claim of title or claim of right 7. Good faith or bad faith 8. Improvement, cultivation, or enclosure 9. Payment of property taxes

In simple terms, this means that those attempting to claim the property are occupying it exclusively (keeping out others) and openly as if it were their own. Some jurisdictions permit accidental adverse possession as might occur with a surveying error. Generally, the openly hostile possession must be continuous (although not necessarily constant) without challenge or permission from the lawful owner, for a fixed statutory period in order to acquire title. Where the property is of a type ordinarily only occupied during certain times (such as a summer cottage), the adverse possessor may only need to have exclusive, open, and hostile possession during those successive useful periods, making the same use of the property as an owner would for the required number of years.

Now let's look at this case from the Missouri Courts:
http://caselaw.findlaw.com/mo-court-of-appeals/1012184.html

This case involves a Lady, Ms. Lois Gaar, who filed an adverse possession claim against Empire Electric and won.  This case below is the court's response to Empire's appeal to the ruling made in favor of Ms. Gaar.  NOTE:  This utility is also regulated by the FERC.  I will only hit the highlights.  Please read the whole response above for all details.


THE EMPIRE DISTRICT ELECTRIC COMPANY V. GAAR

MISSOURI COURT OF APPEALS, SOUTHERN DISTRICT, DIVISION TWO

THE EMPIRE DISTRICT ELECTRIC COMPANY, Appellant, v. Lois M. GAAR, Respondent

No. 23242

July 13, 2000

Appellant (EMPIRE ELECTRIC) contended that its land was given to a public use and therefore protected against adverse possession claims by 516.090.1    The trial court rejected Appellant's argument and vested title in Respondent.  This appeal followed.

......Appellant continues to operate the Project and has been licensed by the federal government to do so since 1958.  The Federal Energy Regulatory Commission (FERC)licenses the Project's "to further the public interest by meeting public needs including, but not limited to, the public supply of electricity, flood control conservation efforts, and public recreation." 

....The 1992 license states that the Project consists of "all lands to the extent of the licnesee's interest in those lands, enclosed by the project  boundary".  Although Appellant had not entered upon the property in question for the ten year period prior to March 31, 1996, and it had no current plans to use the property in connection with the delivery of hydroelectric power, it included the property within the Project bound Appellant maintained that all property within the Project boundary was put to public use and therefore protected against Respondents adverse possession claim by 516.090, which provides that no statute of limitation shall extend to lands "given, granted, sequestered or appropriated to a public use."

The trial court held a hearing on the matter on August 16, 1999.  The sole issue presented to the trial court was whether Respondent could adversely possess property included within the Project boundary.  On August 24, 1999, the trial court issued Findings of Fact and Conclusions of Law determining that "the property claimed by (Appellant) has not been devoted to a public use."  The trial court found that although the public derives an indirect benefit from Appellant's ability to generate electricity, this does not amount to a public use as contemplated in 516.090.  The trial court then concluded that the statute did not bar Respondent's adverse possession claim.  The court subsequently entered a judgment dismissing Appellant's claim and quieting title in Respondent's name.

......In Points I, III, and IV, Appellant raises the issue of federal preemption.²  In each of these points, Appellant claims the Supremacy Clause of the United States Constitution preempted the trial court from concluding that the disputed property was not dedicated to a public use for the purposes of § 516.090 because the land falls within the Project boundary and FERC had already made a binding determination as to the public utility of the land.

 

The Supremacy Clause ³ empowers the federal government to preempt state laws to the extent it believes that such action is necessary to achieve its purposes.  Silvey v. Mallinckrodt, Inc., 976 S.W.2d 497, 498-99 (Mo.App.1998).   The law of preemption is well-settled:

[The federal government may preempt state laws] by federal statute or by federal regulations which have been properly adopted in accordance with statutory authorization.   Thus, a federal agency acting within the scope of its congressionally delegated authority may preempt state law.

......In its first point on appeal, Appellant contends that the trial court erred in finding the property had not been devoted to public use because FERC, “through its extensive licensing procedure mandated by the Federal Power Act, has determined the entire Project, including the subject property, serves the public interest.”   Appellant suggests that FERC's decision to issue the license amounted to a final and binding determination as to the “public utility” of the land.   Appellant argues that under the Supremacy Clause of the United States Constitution the trial court was preempted from making its independent finding that the land was not put to a “public use” as contemplated by § 516.090.

Appellant fails to cite, and our research failed to reveal, any cases in support of its proposition that the mere issuance of an operating license by FERC bound the trial court to apply § 516.090 to the property at issue.  

 Appellant notes that FERC has issued orders that broadly define the public interest under the Federal Power Act to include “the protection of fish and wildlife and their habitat, the development of public recreation and project reservoirs, and the preservation of environmental amenities.”  Public Utility District No. 1 of Lewis County, Washington, 80 FERC 61,350, page 7, FERC Records & Information Management System (Sept. 25, 1997).   Appellant equates a determination that a project is in the “public interest” in the context of FERC's licensing procedures with “public use” for the purposes of § 516.090.

Appellant concludes that prior to issuing the 1992 license, FERC assessed all land included within the boundaries of the Project in the license application and determined the public necessity and utility of the entire area, “not just the electrical facilities within the Project.”   This contention ignores the language in § 796(11) of the Federal Power Act that defines a “project” to include only “lands or interests in lands the use and occupancy of which are necessary or appropriate in the maintenance and operation of such unit.”  (Emphasis added). This section necessarily limits FERC's determination that the Project serves the public interest to include only those lands that are “necessary and appropriate” for the generation of hydroelectric power by Appellant.

It is undisputed that Appellant had not entered or used the property in question for at least the ten years prior to April 1996.   Appellant does not contend it used the disputed property to generate hydroelectricity or for any other purpose contemplated by the FERC license. When FERC issued the 1992 license, Appellant had never asserted any ownership interest in the subject property.   At that time, Respondent's home and other improvements occupied the land. Appellant was not even aware it had any interest in the land occupied by Respondent until it had the area surveyed in 1996 in contemplation of leasing the land to a third party.   Appellant also conceded it had no plans in the immediate future to use the land to further the purposes of the Project.

In light of these facts, Appellant fails to persuade this Court that in 1992, FERC intended to make a binding determination that the disputed property “serves the public interest” because it is “necessary or appropriate” in the maintenance or operation of the Project.   Furthermore, Appellant offers nothing to suggest that by authorizing FERC to determine whether the land facilitates the “public interest” for the purposes of its licensing procedures, Congress intended to authorize FERC to make a binding determination that the land in question is “given, granted, sequestered, or appropriated” to a public use for the purposes of § 516.090. Accordingly, we cannot conclude that the mere issuance of the operating license by FERC precluded the trial court from determining that the disputed land was not put to a public use for the purposes of § 516.090.

Finally, Appellant's 1992 license appears to recognize the potential that Appellant may face adverse possession claims to some of the Project land.   The license specifically states that the Project consists of “all lands, to the extent of licensee's interest in those lands, . ․” This language lends no support to Appellant's claim of immunity from an adverse possession claim under § 516.090.   Point I is denied.

......4.  Although the public derives an indirect benefit from [Appellant's] generation of electricity and its operation of [the Project], the public may not enter on and use [Appellant's] property in the manner contemplated by R.S.Mo. § 516.090.

Appellant claims the trial court misconstrued “public use” to be limited to “parks, streets, or other areas where people may freely enter.”   We disagree.

.......As articulated in Dudley, the rationale behind the enactment of § 516.090 was to protect against the loss of public lands due to the carelessness or oversight of the people charged with protecting the public's interests.   Section 516.090 has never been applied in any reported case to the situation presented here.   Appellant is a corporation operating for profit and the primary benefit of its shareholders.   One of its business endeavors is producing hydroelectricity.   The land in question has never been used to aid in Appellant's production of electricity, nor does Appellant have intentions to use it for this purpose in the future.

Although there may be some situations where § 516.090 operates to protect lands owned by a utility and used in the production of electricity, Appellant is hard-pressed to apply the rationale behind the enactment of § 516.090 to the facts of this case.   We cannot say the trial court erred in determining the disputed land did not qualify for the “public use” protection under § 516.090. Point II is denied.

Without question, this is not legal advice.   Please read the entire case and seek the advice of legal counsel in matters such as the above in determining whether you may have an adverse possession case based on the Gaar case and any others.  Only the high points were pulled out and referenced.  Please read the whole document.  Undoubtedly, there has been a very convincing precedent set by the courts in Missouri already in a case that is similar to ours here at Lake of the Ozarks when dealing with a private utility and the FERC.  The bonus that we may have is the added protection of the easement as shown in most deeds here on our lake.  Do your own research.   You may use the above case as a tool to investigate what options you could have.

If you have questions about your particular situation an attorney very familiar with the Gaar case and how it applies at LOZ is a man named Tim Sear (816) 753-1000.

The "660" Is The Answer!

As Ameren rolls out the invitation for workshops to” hear from the public” and conduct workshops on their plan to move the project boundary to the “662” has anyone noticed that this valiant PR effort is taking place in the deepest throws of the winter season?  This is not unusual if you look at the meetings on the IMZs of the past.  Never is there an invitation during the season.  Coincidence?  You be the judge.  And, to boot, there has never been any notification to those 4200 homes that fall within the project boundary to make them aware that they should be a part of this conversation.  Ameren is offering a grand solution to a problem that many homeowners do not even know exists.  Should they not be made aware they are a part of a problem?  Those people are the people who should be a part of this workshop.  Those people are the ones who may want to make a comment….if they knew there was a problem with their homes or improvements on their private property. Unfortunately, Ameren has never notified these people.  Why?

This PR effort to convince the lake area residents that the “662” is the best solution for all of us begs for us to revisit the truth. 

At the direction of elected officials and the FERC, Ameren has been handed an edict to save the 1200 homes in jeopardy of being removed as directed by the FERC Order of July 2011.  They are fulfilling this request by proposing the movement of the project boundary to the “662” and offering to “carve out” other homes in the project boundary.  But, if the project boundary stays at 662 lake wide there will still be massive issues for all homeowners at the Lake of the Ozarks.

Why?  Well, the variable water’s edge is the 660.   To move the boundary to this point would allow the majority of issues of encroaching structures (such as decks, boat houses, gazebos, septic lateral lines, septic lift stations, pools, landscaping, etc.) to be immediately resolved since ownership goes to where a property owner’s lot meets the lake.  Simple.

If this does not happen there WILL be issues.

There will still be a small strip of land that will sit between your lake home and the lake.  Although an easement of record does and has existed since the 1930s, it apparently does not matter to Ameren since they are claiming “fee simple ownership” of these lands even though they do not pay taxes on this property.  This strip of land Ameren clearly claims ownership of will separate your lake front home from the lake, thus making your property a second tier property.  This can be said fairly since you do not “own” to the water’s edge.  You will have to trespass over Ameren’s property to get to the lake.  Whether by 2 feet or by 20 feet, if you do not own the property (or find your easement honored) that adjoins the lake you will be expected to pay for it in one way or another.  Let’s look at how.

Here is what you will be required to do if any structure is considered by Ameren as encroaching:

1. A completed registration form (provided by Ameren Missouri’s Lake Ozark office upon request).

2. Payment of a $400 registration and use fee.

3. A survey clearly defining the portions of the non-conforming structure(s) within the project. Said survey shall include the elevation-based project boundary, the highest estimated flood elevation of the lake, property ownership information and any other information deemed necessary by Ameren Missouri to characterize the scope of the nonconforming structure. (survey should cost from $700 -$1200)

4. A copy of each deed, title abstract, or similar instruments of title of record relating to the real property lying beneath the non-conforming structure.

5. Copies of building permits, zoning approvals and any other local state and federal permits obtained for the non-conforming structure.

6. A description of the environment in the area of the non
conforming structure including but not limited to:

            a. Common fish and wildlife species

               b. Threatened and endangered species

c. Wetlands, critical habitats, or other significant features

d. Historic properties

e. Trees and other vegetation

f. Water quality

g. Existing land and water uses in the area, including public recreation

h. A description of the non-conforming structure’s existing and  potential impacts on the environment

Environmental Assessment Fees (described above)

4.1b Environmental Review

" All applications received that require review of an environmental assessment shall be assessed an environmental review fee. "

THIS WILL ALL BE THE FULL RESPONSIBILITY AND EXPENSE OF THE PROPERTY OWNER. 

DON ‘T MISS THE OBVIOUS!!!! IF YOU DON’T OWN TO THE WATER’S EDGE, YOUR DOCK WILL BE SITTING ON THE “PROJECT BOUNDARY” THAT AMEREN CLAIMS TO “OWN”….  even though you pay taxes on it.

Stay with me here…if it is found that you have any encroaching structures (this could be your lateral lines to your septic or a patio) this is what you will have to look forward to according to Ameren:

Non Conforming Structures

“Ameren Missouri will review the registration and application materials and consider whether it is appropriate to convey an interest in project property (typically through a permit or lease) to an applicant, the interest will allow the applicant to continue the use of such non-conforming structure and to transfer such interest.”

Here is what Ameren says about “non conforming” structures:

“ Even where Ameren Missouri has conveyed an interest in project property to an applicant, Ameren Missouri generally will not encourage the survival of the non-conforming structure related to the transfer, as all non-conforming structures in the project boundary are declared by Ameren Missouri to be incompatible with other permitted shoreline structures and uses.”

2. Should a non-conforming structure be destroyed by any means to an extent of more than sixty percent (60%) of its total replacement cost at the time of the destruction, a grantee shall not reconstruct the non-conforming structure except as otherwise provided herein.

3. A grantee may not enlarge, alter, increase, expand, or extend the non-conforming structure(s) for which the interest is conveyed, such that the non-conforming structure(s) occupy a greater area than occupied on the effective date of this section.

4. In the event a grantee violates any of the foregoing terms, conditions, covenants or restrictions, or in the event a non-conforming structure is determined to be unsafe, unlawful or abandoned and cannot be restored, repaired or rebuilt in conformity with the provisions herein, then Ameren Missouri may terminate the interest conveyed and may require the non-conforming structure be removed.

Ameren also grants themselves “absolute discretion” to change the rules at any time when they see fit.

" Since every possible situation cannot be anticipated, Ameren Missouri reserves the absolute right and discretion to make appropriate exceptions or modifications to Ameren Missouri’s requirements, to make special rulings, and impose additional requirements, including the requirement that the applicant provide a survey to verify the facility was installed in conformance with the permitted location."

The 660 protects property owners.  It is just as simple as that.  Without that protection there will continue to be issues.  Just read Ameren’s own words and the recent FERC Orders discussed in this blog.  It is obvious.  Show up to the Ameren workshops and make your public comments known.  Ask for the 660.  It is the simple solution for property owners for a multitude of reasons.

To Lease Or Not To Lease. That Is The Big SCARY Question.

Do you wonder why Ameren's recent response to the FERC order from July of 2011 was a request for "clarification"? Well, if you realize that on June 8, 2009, the FERC put out an order that was an "ORDER CONDITIONALLY APPROVING CONVEYANCES FOR NON PROJECT USE OF LANDS", (the document is located on the side bar if you would like to review it in it's entirety; look for FERC ORDER June, 2009) then it could appear that Ameren wanted to make absolute certain and have complete clarification that the FERC intended for Ameren to honor the ORDER from 2009 to LEASE BACK PRIVATE PROPERTY OWNERS HOMES TO THEM before it turned the lake on its ear with the idea of pushing leases for "encroaching structures".

Taken directly from
FERC Order issued on June 08, 2009


#4. Page 2:
Ameren is proposing to grant conditional lease agreements to the eight single family dwelling property owners with buildings either totally or partially in the project boundary. However, we understand that these eight buildings have been in this location since the 1960s, and it was recently discovered that these were located in the project boundary.

Unbelievable. Some 50 years later there is some huge revelation and now all rules are changed? I wonder if Ameren can show with specificity that they have paid the tax bill on all eight of these structures for the past 50 years? If not, it can be fairly assessed that there should be an adverse possession claim for these properties based on the fact the taxes have been kept current by property owners through "tacking" for 50 years.

#12. Page 3

....A vegetative buffer along the shoreline would provide a visual buffer for lake users from the development. Providing more of a buffer would benefit the water quality of the lake and provide mitigation for the location of these properties, and their lawns, and associated development inside the project boundaries.

There would be required ,as a condition of this lease, a visual buffer so lake users would not be bothered by having to look at these houses. It would be at the property owners expense and full obligation to protect the lake users from having to look at these homes that have been there for 50 years. The Commission believes the priority should be to protect those "lake users" while keeping their utmost responsibility to the overall public who use the lake for recreation. At the same time they promise to potentially infringe on private property owners by ruining their views, impeding their private access, and giving them no say in what their preferences might be on how they want their lots to look because the FERC "does not allow for the interests of private property owners to override the public use and enjoyment of project lands and waters" according to them in their own words.

The order goes on to instruct Ameren to prepare and file a shoreline vegetation and erosion control plan and to ensure that the licensee is not stepping outside of the very specific guidelines Ameren will have to follow in order to "manage and control" said properties. The FERC, by way of the order, says Ameren will have these rights when it comes to the property being leased.

#14. Page 4

1. Grantor reserves the right of ingress and egress for project operation and maintenance, and to affect the premises by flowage.
2. Grantee would ensure that the structures are maintained in good repair...

3. Grantee would cooperate with all federal, state, and local laws ordinances and regulations.

In reading the FERC order and the request for rehearing from Ameren, the directive of leasing and managing encroaching structures is used over and over again. With leases come yearly fees. Make no mistake this will cost private property owners big. And with the FERCs recent press release telling us that it had no intention to adversely affect private property owners....then it must be asked what they consider private property owners to be if owners who have paid taxes on residences since the early 1960s do not make their radar. We are all in trouble if these homeowners somehow do not count.

FERC does grant "conditional" approval of the leases. However, UNDERSTAND what happened to those property owners who had leases on Crescent Bar Island in Washington state....

FERC has just order the removal of 400 condominiums and is not willing to renew their leases. Based on the happenings in the state of Washington and their experience with how leases can go bad when dealing with FERC know this should never be an option for owners at Lake of the Ozarks, know that you have rights as private property owners. There is a magnificent document called the Constitution that governs us and has for years, the fifth amendment is powerful. Read it. Inscribe it in your heart. And, then do not let anyone talk you into "leasing or managing" something that is already yours. Stand united. Get educated. Know the truth.

The Faces Of Those The FERC Order Has Hurt

Watch this news story.  If you want to see who this nightmare has really hurt, well here they are.  These people only represent a small portion of lake residents who are suffering and will suffer at the hands of the FERC and Ameren if the madness does not stop.

http://www.ky3.com/news/ky3-story-lakes-110811,0,7348838.story

FERC Press Release....We Misinterpreted? You Be The Judge.

Did you read FERC’s revised order and press release sent out on November 19?  Did you laugh?  It is unbelievable that a federal agency had to send out a press release to tell us that we MISUNDERSTOOD their original order of July 26, 2011.  Do they really think we are that dumb?  Apparently they do.  Let’s take a look.

Taken from FERC’s website:

Frequently Asked Questions

Will FERC be taking away my property rights?
No. Nothing in Ameren’s Shoreline Management Plan, the July 26 order or this order has any impact on property rights. Whatever rights landowners have in lands within the boundaries of the Osage Project – whether conferred by deed, lease, easement or other conveyance – have not been and will not be altered by FERC’s actions.

Really?  Well, I would ask those guys at the FERC how they best define “property rights”.  In Missouri we feel that when you make statements like this...:

"....the Commission does not allow the interests of private property owners to override the public’s use and enjoyment of project lands and waters appropriate actions to resolve such non-conforming structures and encroachments with the goal of removing them from the project boundary"…

...they probably don’t interpret those rights the same as we do.  Did you get that?  The FERC does not ALLOW the interests of private property owners to override the public use and enjoyment of project lands (the project boundary in your back yard).  That says  your rights do not matter if you own private property.   Your rights do NOT trump the interest of the public according to the FERC.

Taken from FERC site:

Did FERC reject Ameren’s proposal to “grandfather” existing structures? Did FERC reject Ameren’s Shoreline Management Plan (SMP)?
No. In the July 26 order, FERC generally approved Ameren’s proposal, which specifically provided that many existing structures would not be “grandfathered,” and made a few procedural changes. In this most recent order, FERC makes clear that it is accepting Ameren’s new proposal to “grandfather” existing structures that were built before March 28, 2008.

First of all, be aware of what the “no” in this answer really means.  There were two questions asked above.  Let us be crystal clear, FERC did reject grandfathering structures in their first order because those structures did not conform with the purposes of the project boundary according to the FERC;  Ameren did NOT ASK to grandfather structures, thus the answer here would be “yes”.  The second question is whether the FERC rejected Ameren’s SMP.  The answer is “yes”.  They did not accept it as written or we would not be here now. 

 There is a map with 4200 structures identified and put out by Ameren that the FERC has a copy of.  They could not have been that "out of the loop" to not know what all of those yellow and red dots meant.  Could they?  Ameren's SMP was submitted in 2008.  If the FERC did not know what all of those 4200 little dots meant should they have clarified that in the past 3 years?

   In the July 26 order, FERC generally approved Ameren’s proposal…the word “generally” makes this definition very ambiguous. They admit they were NOT going to “grandfather” structures in the original order.   And, the “procedural changes” part means something that is not good for homeowners.  Let us look at what the July 26 order REALLY says with reference to these two issues:

Non-Conforming Structures

FERC ORDER JULY 26, 2011

36. AmerenUE indicates a considerable number of structures have been located within the project boundary along the shoreline of the lake over the last 75 years, some prior to adoption of formal permitting procedures and policies and some since, which do not conform to current shoreline management standards and could not be permitted under AmerenUE’s current guidelines or license. Examples of such non-conforming structures include, but are not limited to, floating habitable enclosures, dwellings partially or wholly within the project boundary, decks extending more than three feet over seawalls, and floating commercial businesses. AmerenUE does not propose to grandfather any of these pre-existing structures, but has developed proposed guidelines to manage such nonconforming structures.

Pg. 12 of FERC Order July 26, 2011

37. In addition to not grandfathering pre-existing structures……Ameren UE also intends to notify property owners who appear to claim ownership (You will have to pay for your own survey to prove whether or not you  own your property and then jump through all of the hoops if it is found you are in their project boundary/your easement.  ***Read earlier posts for details***) of non-conforming structures prior to this deadline.  Upon registration of a non-conforming structure, AmerenUE would consider four options for appropriately managing the non-conforming structure:

MANAGE=FEES FOR YOU THE PROPERTY OWNER

(1) remove and relocate the non-conforming structure outside of the project boundary;  (TEAR DOWN YOUR HOUSE)

 (2)seek revision of the project boundary to exclude the non-conforming structure;(DID NOT HAPPEN THEN….BUT,  COULD POSSIBLY NOW BECAUSE WE ARE WIDE AWAKE AND MAD.)

 (3) take action to affirm or secure rights necessary to manage and control the non-conforming structure; (THIS IS THE AVENUE IT APPEARS AMEREN WAS PURSUING.  THIS MEANS SINCE THey HAD TO ‘MANAGE AND CONTROL’ YOUR PROPERTY YOU WOULD BE CHARGED A LEASE OR PERMIT FEE ON AN ANNUAL BASIS FOR YOUR PROPERTY).

or
(4) convey an interest (THIS DOES NOT SAY CONVEY “THE” INTEREST, BUT ‘AN’ INTEREST)  in project property to an applicant, which will allow
the applicant to continue the use (YOU COULD STILL “USE” YOUR HOUSE) of the non-conforming structure and to transfer the interest. AmerenUE would file an annual report with the Commission for all nonconforming structures for which interests have been conveyed (SO CLEARLY THIS WILL COST YOU ON AN ANNUAL BASIS SINCE THEY HAVE TO REPORT TO THE COMMISSION ABOUT YOUR STRUCTURE ANNUALLY ) under this section, including information on the nature of the interest conveyed, the location of the nonconforming structure, and the nature of the use of the non-conforming structure.

40. As such, AmerenUE should be required to develop a plan and schedule to inspect and identify all lands within the project boundary; identify existing non-conforming structures and encroachments; identify the project purposes being served by the underlying lands, and take appropriate actions to resolve such non-conforming structures and encroachments with the goal of removing them from the project boundary. In the majority of cases, the existing non-conforming structure/encroachment should be removed in a timely manner and the site restored to pre-existing conditions.     ( So we “misunderstood” did we?  What is the goal?  Check it out for yourself.  It is all there.  Look at the July 26, 2011 order on page 13.  Majority means almost all to me…removed in a timely manner means that those structures must be taken out so the site can be restored to what it looked like back in the 1920s).

The FERC press release also said, “The agency said that it has not required any shoreline homes and structures with valid deeds, permits and easements to be removed”.  The key word in this statement is “valid”.  I had the privilege of being a part of a conference call with the FERC officials and Senator McCaskill (the link appears on the sidebar).  I asked Mr. Katz from FERC the very pointed question as to whether or not he acknowledged our easement at Lake of the Ozarks that has been attached to the majority of deeds since 1932.  His response to me was  “that is a matter for the courts.”  Based on his answer does the FERC believe that our deeds are “valid”?  They will NOT answer that question with a direct yes or no.  They revert to their spin and try to make us believe that they are on our side.  I believe that their lack of commitment to answer the most simple questions with simple and understandable answers speaks volumes. 

Realize that you must read a press release with a careful set of eyes, and then go back to the original documents and find the truth.  It is all there if you care to look for it. 

Dream House Turns Into Their Worst Nightmare

 After Richard and Joyce Hudson got their letter from Ameren in 2010 saying they did not own their home they were confused.  They had jumped through all of the appropriate hoops.  They had gotten all of their building permits in order, they thought surely there had been a mistake.  They had no reason to believe the land they had purchased and built their dream house on belonged to Ameren. 

When they got their certified letter from Ameren in early 2010 that said their records showed they owned their property, and advised them to contact a surveyor prior to building anything since Ameren owned their lot.  But, they had applied for and gotten all necessary permits in 2008.  The county knew there was a house there.  Why did Ameren not say something at that time if they already knew where their project boundary was? 

Imagine the Hudson's frustration when they saw an Ameren representative state on TV in the last month that "everyone was made aware of this project boundary change in the SMP filed in March of 2008."  No one ever told them until their letter arrived in 2010.   How was "everyone" supposed to know about this?  Osmosis? 

Their life has been in a constant state of turmoil since the realization that this was not just a bad dream, but their reality. 

How can this be?  They have faithfully paid their taxes as did the owner prior to them had for decades.  Ameren has not.  The County Assessor verified in a recent town hall meeting that Ameren pays their taxes to the water's edge.  The responsibility of the home owner starts where the land and water meet.  However, Ameren keeps chanting the mantra that they own this property and a multitude of others "fee simple".  Fee simple means absolute ownership, but the first responsibility of ownership is to pay your taxes on that property.  Thus, it would stand to reason that the owners who have received letters that they don't own their property would find those letters to make no sense since their tax bills are current.  Or...if Ameren can verify that they have been paying taxes on those properties for decades as can the property owners can it would stand to reason that, potentially, the county has been receiving double payments on the same parcels for close to 70 years plus.  That could potentially be one heck of a refund owed property owners all over the lake if this can be substantiated by Ameren.

The Hudson's represent only a handful of the 1200 who have been "notified".  That has been one of the biggest contentions against Ameren since they know who those 1200 owners are, but they have not made any of them aware other than a very select few.  No one understands exactly why since the Hudsons got their certified letters back in 2010, almost a year and a half before the FERC Order was issued.  Why have the rest of the 1200 been kept in the dark?

The Hudsons have found it very frustrating trying to sound the alarm.  Most people must have thought that they were a little crazy when they told them that even though they had paid their taxes, and had applied for and received all pertinent permits to build, then they received the letter that notified them that even after they followed all of the rules set before them, they did not own their dream house.  People must have thought that they surely had just misunderstood.  I am certain some thought they must have got it wrong when they and their neighbors were screaming bloody murder.  It made no sense.  It still doesn't. How does this happen in the United States of America?  Even when they along with others have tried to get the attention of our Governor, they have only been met with the sound of crickets.   How alone and desperate they must feel. 

October 28, 2011

Governor Jay Nixon

Missouri State Capital

Jefferson City, MO

Re:  Our lake property at Camdenton, Ameren Project Boundary, FERC

Since enjoying the lake area for over 15 years by owning 3 condos and now building our retirement home on the Niangua arm in Lake Valley Estates, we are shocked and bewildered by the certified mail from Ameren we received in January 2010 stating Ameren owned our property.  We purchased the property in June 2008 from a friend, received the deed and got a building permit in Sept 2008 to build our home.   An Ameren representative stated on TV in the last month that everyone was made aware of this project boundary change in the SMP filed in March 2008.  Why didn’t somebody tell us in June 2008 and in September 2008???

Now our investment may be worthless. We live in the United States believing our rights are protected.  We are in our sixties and have worked to have everything we have.  We taught our children to work hard, be responsible, pay your bills and life would be fair.  Please tell us this letter is a big mistake.

In November last year we moved to our lake home.  Our property is located 44 miles from the dam.  How are we interfering with the operation of the power from the dam?  We have met our neighbors and understand some of the homes here were built in the 1980s.  In 1993 the flooding all over Missouri did not flood the lowest home.  Did anything impede on the Ameren UE Power at that time?

So can this be in fear of flooding?  With the many catastrophes that have happened in past years we could all be blown away by a tornado!  Is the government going to tell us we all have to live in basements next?

Earlier this year I sent e-mails to FERC and Ameren asking what was going on.  They returned calls with good intentions in work.   When the SMP was passed by FERC our fears became greater.  If this isn’t a big mistake by Ameren or FERC, then is it a land grab and/or more fees by Ameren and a government commission (FERC) over-reaching??

Please help with this problem.  This has to create a huge economic problem for Missouri, OUR state and community.

Yet, even when they cry out to the supreme authority of the state of Missouri, they are ignored. 

This has been the reality of our neighbors and the agony they have faced as of late.  It is also the reality of another 4100 or so others who own "encroaching structures" to this day and do not even have a clue.  Some stakeholders have been lulled to a false sense of security due to recent FERC and Ameren press releases saying that everything is fine.  It is not.  Remember that these guys who are currently figuring this thing out are the same guys who took us to this place.  Hard to trust?  You bet. 

Keep on the full court press.  This game is a long way from over.