Wisconsin's Eminent Domain Laws and Property Rights

The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.

• Who Can Exercise Eminent Domain?

  Wis. Stat. § 32.02 specifies who can condemn. Some of the most frequent condemnors include units of local government, such as “[a]ny county, town, village, city . . . school district. . . ” pursuant to Wis. Stat. § 32.02(1); railroads pursuant to Wis. Stat. § 32.02(3); and public utilities pursuant to Wis. Stat. § 32.02(4) et seq.
  
  Various state departments such as the Department of Transportation and Department of Natural Resources can condemn pursuant to Wis. Stat. §§ 32.02(15) and (16).
  
  Numerous quasi-public entities also have the right to condemn, including Community Development Authorities, Housing Authorities and exposition districts. See Wis. Stat. § 32.03(11).
  
  Finally, Wisconsin statutes also provide various instances where condemnation may not be exercised, including the condemnation of government-owned lands. See Wis. Stat. § 32.03 (1). After the decision in Kelo v. New London, 545 U.S. 469 (2005), the Wisconsin legislature also limited the ability to condemn single family property as “blighted.” Wis. Stat. § 32.03(6).

• What Are the Legal Requirements for Exercising the Power?

  The condemnation must be for a public purpose and just compensation must be paid. The statutes contain specific procedures to be followed, including filing of relocation orders or resolutions of necessity, preparation and exchange of appraisals, good faith negotiations, and issuance of jurisdictional offers before transfer of title by operation of law under an award of damages. See Wis. Stat. §§ 32.05 and 32.06.

• What Limitations or Defenses Exist?

  Wisconsin has a very useful and robust right to take challenge procedure, but it must be timely undertaken or be barred. Wis. Stat. §§ 32.05(5) and 32.06(5). A right to take case may raise a wide range of issues. For example, the issue of whether an uneconomic remnant exists may be raised in a right to take case, but not as part of a challenge to compensation.
  
  To be successful the property owner must raise a fundamental or jurisdictional flaw in the condemnation, such as lack of power to condemn for the specified purpose. If the non-compensation issue is not timely raised, within 40 days of the of the jurisdictional offer, the issue is barred.

• What Constitutes a Public Purpose?

  This is an often-litigated issue in Wisconsin and must be considered on a case by case analysis. Generally, the statutes list the purposes of condemnation for each condemnor. For example, municipalities can condemn for a list of enumerated purposes, such as parks, libraries, recreation, beautification, streets, water systems, sewage or waste disposal, harbors, improvement of watercourses, public grounds, vehicle parking areas, and for “any other public purpose.” See, for example, Wis. Stat. § 61.34 (3)(a), which governs villages.

• How is Just Compensation Determined?

  The statutes provide for the preparation of an appraisal by the condemnor which is provided to the property owner. The condemnor advises the property owner of the opportunity to have its own appraisal prepared, at the condemnor’s expense. This may result in a negotiated conveyance. The property owner still has the right to appeal from this amount for six months. Wis. Stat. §§ 32.05(2a) and 32.06(2a). If the property instead is taken by award, there is a two year period for appeal. Appeals may proceed to the county condemnation commission or directly to court, where a jury trial determines just compensation.

• How is Fair Market Value Defined?

  Fair Market Value is defined as what a buyer willing, but not forced, to buy would pay to a seller willing, but not forced, to sell for the property at issue. Wisconsin case law has historically addressed the proper use of sales information, income information and cost information. Recent revisions to the Wisconsin statutes now codify using some of this information in determining just compensation. Wis. Stat. § 32.09.

• What About Recovering Damages to Remaining Property?

  Wisconsin Stat. § 32.09 addresses, as a component of just compensation, any severance damages caused to any portion of a property which is not taken. The statute broadly recognizes severance damages, in part, in Wis. Stat. §32.09(6)(e). For instance, damages resulting from actual severance of land, including damages resulting from severance of improvements or fixtures and proximity damage to improvements remaining on condemnee's land are compensable. In determining severance damages under this statute, the condemnor may consider damages which may arise during construction of the public improvement, including damages from noise, dirt, temporary interference with vehicular or pedestrian access to the property and limitations on use of the property. The condemnor may also consider costs of extra travel made necessary by the public improvement based on the increased distance after construction of the public improvement necessary to reach any point on the property from any other point on the property.

• Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?

  Wisconsin has a fee-shifting statute which permits recovery of all litigation expenses, including attorney fees and expert fees, under various scenarios as listed in Wis. Stat. § 32.28. For example, if the property owner is successful in a right to take action or the condemnor abandons the condemnation, attorney fees are awardable. Also, litigation expenses are recoverable if, in a just compensation challenge, the final results are an increase of at least 15% or $2,850 over the formal pre-taking offer submitted by the condemnor.