Eighth Circuit Rejects Mandatory Hookup Challenge

The United States Court of Appeals for the Eighth Circuit recently rejected a challenge to a mandatory hookup ordinance in Missouri in the case of Becker v. City of Hillsborough (8^th Cir. 2025). The landowner brought a regulatory takings claim, alleging that the city’s mandatory connection ordinance took his property since the cost of connecting the eight lots to public water would cost between $963,000 and $1,578,000, making development economically impossible. In a poorly reasoned opinion, the court affirmed the lower court’s decision that the regulation was not a taking.

The landowner attempted to sell the 156-acre parcel as a single lot. When those attempts failed, the parcel was divided into eight lots. One lot was sold for $233,825, with both seller and buyer mistakenly assuming that a private water well could be constructed on the lot. However, a city ordinance prohibits new private water wells in the city and prohibits occupying a residential structure in the city unless the structure is “serviced by the [C]ity water supply system or by an approved and functioning deep well.” After discovering the existence of the ordinance, the landowner filed suit claiming a taking of private property in violation of the Missouri and United States Constitutions. The landowner alleged a taking in four different ways: (1) physical invasion; (2); deprivation of all economically viable uses of the property; (3) the mandatory connection requirement amounts to an unconstitutional condition; and, (4) the ordinance fails the balancing of the impacts on the landowner and the purpose of the ordinance. The court rejected all four claims.

First, the court rejected the physical invasion claim with an odd conclusion. The court found that the landowner was not forced to suffer a physical invasion by the water lines. Unlike earlier cases that found a taking, the landowner could avoid the physical invasion by simply not developing the property. In response to the landowner’s argument that they could not use the property without a water connection, the court countered that the property could be used for recreational purposes. Similarly, the court rejected the proposition that the regulation rendered the property valueless. Without the regulation, the property was worth $1,550,000. The regulation reduces the value to $477,000, a 70% reduction.

The next argument presented by the landowner alleged that requiring the water hookup amounted to an impermissible exaction. The court refused to consider this issue, finding that the landowner failed to raise the issue in the lower court.

Finally, the court weighed the three factors used to determine whether a taking has occurred if there is no physical invasion or total reduction in value: (1) economic impact of the regulation on the landowner, (2) the landowner’s reasonable investment-backed expectations, and (3) the character of the governmental action. First, the court treated the parcel as one parcel as opposed to eight different lots. Since the landowner’s calculations were based on dividing the property into eight lots, the court found that the landowner failed to present evidence to support a claim of severe economic impact.

With respect to the landowner’s reasonable investment-backed expectations, the court noted that the regulation was already in place when the landowner voluntarily had the land annexed into the city. Basically, the court found that the landowners should have checked out the ordinances before agreeing to the annexation. Thus, the landowner’s expectations were not reasonable.

The court seemed to conflate the character of the governmental action inquiry and the question of whether the regulation was a physical invasion. This regulation is a limitation on use, not a physical invasion, reasoned the court. In addition, the prohibition on private water wells was likely passed to prevent water contamination and prevent depletion of the aquifer. Therefore, the public benefit from the regulation outweighs any impact on the landowner.

Although the facts of this case were not ideal, this poorly reasoned decision causes concern for the water well industry. With this case as precedent, local governments may feel emboldened to mandate connection to public water.

Ironically, Missouri has a state law that prohibits mandatory connection outside of cities. The statute provides that, “all Missouri landowners retain the right to have, use and own private water systems and ground source systems, including systems for potable water, anytime and anywhere, including land within city limits, unless prohibited by city ordinance, on their own property…” The highlighted language was likely part of a compromise when the state law was passed. However, the exception allows cities, as in this case, to prohibit private water wells within municipal limits.

The case highlights the fact that the water well industry must continue to educate citizens, local, state, and federal lawmakers, judges, and other decision-makers on the benefits of private water wells. Legislative efforts by the water well industry must involve compromise, but with awareness of the consequences. This case may present an opportunity to lobby state legislators in Missouri and elsewhere by using this result to illustrate the economic consequences of mandatory connection.