Earl Giefer, a 94 year old farmer from Oak Creek, Wisconsin, thought his fight with the city over their attempt to acquire his 25-acre property had ended. In June, the Oak Creek City Council decided to stop their pursuit to acquire his property through eminent domain. Now, however, the city of Oak Creek is refusing to pay the $9,081 legal bill Mr. Giefer amassed in his successful effort to save his property.
Property Owner Earl Giefer/ Credit: Peter Zuzga, Journal Sentinel Inc.
Should the City of Oak Creek be required to pay his attorneys fees? Wis. Stat. § 32.28 states that landowners can recover their full litigation expenses if the condemnor abandons the proceeding. Furthermore a section of Wis. Stat. § 32.28 also states:
(1) In this section, “litigation expenses” means the sum of the costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees necessary to prepare for or participate in actual or anticipated proceedings before the condemnation commissioners, board of assessment or any court under this chapter.
In order for attorney’s fees to be reimbursed to a property owner in abandonment cases, a proceeding would have had to begin. In Geifer’s case, some would argue that an actual proceeding had not begun prior to the City abandoning the acquisition.
Currently, there is no case law defining what a “proceeding” is, meaning this is a question of law that has not been addressed. However, Standard Theatres, Inc. v. State of Wisconsin, Department of Transportation says that Wisconsin’s eminent domain rules are to be afforded “liberal construction” to protect property owners. That is, if it is reasonable to construe what happened in Geifer’s case is a “proceeding” then the Courts will do so.
I think it’s reasonable to presume that a proceeding to condemn the property did begin. It was clearly the intent of the City to acquire Mr. Giefer’s property. The city surveyed his property, found it blighted, and already finalized an agreement to resell Mr. Giefer’s property to a developer.
Regardless of how the courts would rule in this case, hopefully the city of Oak Creek will agree to pay Mr. Giefer’s legal bill and avoid any further litigation.
Learn more about the eminent domain process and the attorney fee recovery process in Wisconsin.
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