Wisconsin Eminent Domain Summary
When a Government authority in Wisconsin needs to acquire your property for a public use project, it is usually a new endeavor for property owners. Frequently, the only information a Wisconsin property owner will receive regarding the Wisconsin eminent domain process is a pamphlet created by the condemning authority. When it comes to eminent domain, the government is playing in their arena; they do this every day. They know what the rules are, they know how the rules affect them, and they also know how the rules affect you.
If you’re affected by eminent domain, your initial question might be- can I stop the process? In most cases, you won’t be able to prevent the government from acquiring your land, but you are entitled to just compensation. Learn more about eminent domain and what you’re entitled to receive for just compensation, or continue reading to learn about the laws that are specific to Wisconsin residents and more about Wisconsin eminent domain attorney.
We are a Wisconsin eminent domain law firm that only represents property owners, never the government or condemning authority. We handle more eminent domain cases in Wisconsin courts than any other law firm. We have helped hundreds of Wisconsin property owners obtain just compensation, and we have helped expand their property rights through beneficial rulings at the appellate and state supreme court level.
Wisconsin law mandates that once the statutory threshold is met, attorney’s fees in eminent domain cases are paid for by the government. This means that even small claimants can hire an attorney to help them obtain just compensation. Although our firm takes cases of all types and sizes throughout the state, we devote a large portion of our practice to appeals. Continue reading to learn more about the Wisconsin eminent domain process, your rights as a property owner and hiring a Wisconsin eminent domain attorney.
Wisconsin Eminent Domain Process
In the state of Wisconsin, the eminent domain process can only be stopped if the proposed taking does not meet the requirements for public purpose or public necessity. If you have determined that the proposed taking does meet these requirements, then you should learn more about the Wisconsin eminent domain process.
Remember, even if the government has the right to condemn your property, they cannot dictate the price they are willing to pay; compensation is determined by the highest and best use laws for your property.
The majority of eminent domain cases in Wisconsin meet the requirement for public purpose and necessity. Examples of cases that meet these criteria are: property acquisition for highway improvement projects, and acquisitions for utility projects such as installation of power lines and sewer systems. This page is dedicated to information regarding the Wisconsin eminent domain process.
If the taking of your property meets the requirements for public necessity or public purpose, then continue reading to learn more about the eminent domain process in the state of Wisconsin. Please note that there are extended explanations for all of the numbered sections in the flow chart. Additionally, links to specific state statues are also provided, where applicable. Please be aware that the flow chart and explanations are simply an overview of the process and should not be used as a tool to take matters into your own hands.
Here is a flow chart for the eminent domain process in WI:
1. Government Announces Project and Properties Affected
Typically during project development, the condemning authority (whether that agency is the Department of Transportation, or a City/County Planning Division, etc.) will hold public meetings to inform the public of the upcoming project and how this project will affect private property.
2. Property Owner Hires Attorney
Depending upon the complexity of the case and the amount of additional damages done to the property, it may be necessary to allow condemnation to occur in order for the property owner to receive just compensation. If this is the case, an eminent domain lawyer must be hired to assist the property owner with their claim
3. Government Inspects and Values Property
The condemning authority must have at least one appraisal performed for the condemned property in question. In conducting the appraisal, the appraiser must make reasonable efforts to confer with the property owner, meaning the appraiser must make an effort to meet and discuss the specifics of the appraisal with the property owner. (Wis. Stat. § 32.05(2)(a))
4. Government Makes Offer to Property Owner and Provides Appraisal
When the condemning authority makes an offer, they must provide the property owner with a copy of the appraisal on which the offer is based. At the same time, they must also inform the property owner of their right to a second appraisal by a qualified appraiser at the government’s expense. However, under this statue, the property owner must submit the appraisal report to the condemning authority within 60 days after the owner receives the appraisal from the condemning authority. (Wis. Stat. § 32.05(2))Important: It is highly recommended for a property owner to consult with an eminent domain attorney before hiring a second appraiser. Property valuation is the most important step in the eminent domain process and hiring the wrong appraiser can jeopardize a property owner’s right to just compensation. Before the condemning authority makes its final offer, it will attempt to negotiate with the property owner or their legal counsel. At this time, they will provide the property owner or their legal counsel a list of at least 10 neighboring property owners who are also affected by the project. If less than 10 owners are affected, the condemning authority shall provide a map that displays the properties of the affected owners. The property owner may request the names of all property owners and properties that are affected, and may also obtain any maps in the possession of the condemning authority that show other properties affected. (Wis. Stat. § 32.05(2))
5. Attorney Evaluates Offer
The attorney will conduct a thorough analysis of the condemning authority’s appraisal, offer and map and compare it to the property owner’s appraisal to determine whether or not they are entitled to at least a minimum of 15% more than the government’s offer.Note: the second appraisal can be conducted at a later date, and the property owner can be reimbursed for these costs after the case as long as the final award is at least 15% more than the government’s offer.
6. Owner’s Claim Likely to Exceed Threshold
The threshold mentioned is 15 %, which refers to the property owner’s right to recover their attorney’s fees and costs from the government as long as the final award is 15% higher than the condemning authority’s final offer. If this is the case, a property owner’s attorney’s fees and costs are not recoverable by the condemning authority.
7. Property Owner Negotiates Settlement with Government
If the property owner is not eligible to receive an additional 15% above the government’s offer, then it is in the best interest of the property owner to negotiate a settlement with the government on their own, with out hiring an attorney.
8. Deed is Transferred
If a settlement is negotiated and the property owner accepts the offer from the government, the date of settlement serves as the date of the taking and the date the deed is transferred. (Wis. Stat. § 32.05(2a))Important: If a property owner settles with the government, and an attorney determines they are entitled to additional compensation, the property owner has 6 months from when the deed was transferred to file a claim with in the circuit court. (Wis. Stat. § 32.05(2a))
11. Government Acquires Property by Deed from Owner
If negotiations are ignored or unsuccessful, the condemning authority must, before acquisition through condemnation, provide a jurisdictional offer for the property owner. This offer will contain information such as the nature of the project, the amount of compensation, the proposed date of occupancy, etc. Most importantly, it will state that the property owner has 20 days to accept or reject this offer. (Wis. Stat. § 32.05(3-6)) In this case, the property owner signs the deed over to the condemning authority and payment is made.Important: If, upon receiving the jurisdictional offer, the property owner signs the deed over to the condemning authority, they have 6 months to file a claim for additional compensation with in the circuit court. (Wis. Stat. § 32.05(2a)
12. Government Acquires Property by Filing Award of Damages
If negotiations are ignored or unsuccessful, the condemning authority must, before acquisition through condemnation, provide a jurisdictional offer for the property owner. This offer will contain information such as the nature of the project, the amount of compensation, the proposed date of occupancy, etc. Most importantly, it will state that the property owner has 20 days to accept or reject this offer. (Wis. Stat. § 32.05(3-6))If, upon receiving the jurisdictional offer, the property owner does not sign the deed over to the condemning authority, the government may make an award of damages. Upon payment of the award to the property owner, the deed is transferred to the condemning authority. Payment may be made by sending a check directly to the owner, or depositing the award with the clerk of courts in the appropriate county. (Wis. Stat. § 32.05(4))Important: The property owner has 2 years from when the deed is transferred to file a claim for additional damages with in the circuit court. (Wis. Stat. § 32.05(9)(a))
13. File Claim in Circuit Court
In WI, the property owner initiates the claim for additional damages. The property owners attorney must file a claim with the circuit court in order for the property owner to receive additional compensation. If no claim is made with in the designated time frame, then the owner has no chance at receiving additional compensation.
14. Have Claim Heard by 3 Person Commissioner Panel
The claim may be assigned to the county condemnation commissioners, who will determine the award of compensation. (Wis. Stat. § 32.05(9)(a)). In counties having a population of less than 100,000 there shall be 6 commissioners; in counties having a population of 100,000 or more and less than 500,000 there shall be 9 commissioners; in counties having a population of 500,000 or more there shall be 12 commissioners. Each such commissioner must be a resident of the county or of an adjoining county in the same judicial circuit prior to appointment and remain so during the term of office. Not more than one-third of such commissioners shall be attorneys at law, licensed for active practice in this state. (Wis. Stat. § 32.08)The award shall be paid within 70 days of the filing of the commissioner’s award unless an appeal is taken to the circuit court. In the event that the appeal is dismissed before trial, payment must be made within 60 days of the dismissal date. (Wis. Stat. § 32.05(9)(c))
15. Either Owner or Government can Appeal to Circuit Court
The property owner or the condemning authority may appeal the commissioner’s award to the circuit court with in 60 days of the award being filed. Notice of the appeal will be given to the clerk of the circuit court and all persons involved in the proceeding. The notice may be delivered via certified mail or by personal service. Then, a new trial will be conducted in the circuit court of the appropriate county. The trial will be heard by a jury, unless the request is waived by both parties. (Wis. Stat. § 32.05(10))
16. Owner Not Satisfied with Settlement
If, after deeding their property to the government, they property owner decides they are not happy with their settlement, they may still file a claim for additional damages as long as they are within the designated timeframe.
17. Conduct Trial with Jury in Circuit Court to Determine Just Compensation
A property owner may request to bypass the commissioners hearing and proceed directly to jury trial. Any award given by the court shall be paid within 60 days of judgment. (Wis. Stat. § 32.05(11)(c))
If you have questions regarding the eminent domain process in Wisconsin, contact us for more information.
The eminent domain process in the state of Wisconsin is complicated, and if you are undergoing eminent domain and want to make sure you are justly compensated, you should speak to an eminent domain attorney. Speaking to an eminent domain attorney regarding your case will keep you informed of your rights, the eminent domain process, and whether or not your attorney’s fees will be paid for by the state of Wisconsin.
Wisconsin Property Rights
The eminent domain abuse dialog often centers on policy issues involving the right to take property for economic development and blight. Since the landmark case of Kelo v. City of New London in 2005, many states have taken measures to help curb eminent domain abuse. Some states were very successful at passing meaningful reform, and other states failed to pass any legislation at all. Most states fall in the middle by passing legislation that looks good on paper but does little to level the playing field between property owners and the government. Learn more about hiring a Wisconsin eminent domain attorney today by calling us at (866) 339-7242.
Since the decision by the United States Supreme Court in Kelo v. City of New London many states across the country have taken measures to help protect the rights of private ownership. The controversial Kelo decision held that a local government can take the private property of one person and give it to another private entity. While the Court’s ruling was seen by many as a serious blow to citizen’s constitutionally protected rights of private property ownership, the decision prompted a number of states to initiate legislative reform to help curb eminent domain abuse.
The Castle Coalition has released a report, grading each of the states based on their efforts to protect private property owners and their rights based on changes in their respective state laws. The Castle Coalition is the Institute for Justice’s nationwide grassroots property rights activism project that teaches home and small business owners how to protect themselves and stand up to abuse by governments and developers who seek to use eminent domain to take private property for their own gain. The Castle Coalition gave a letter grade of a “C+” for the state of Wisconsin for property rights.
In 2006, the Wisconsin State Legislature passed Assembly Bill 657, which significantly tightened the grounds of how private property could be deemed blighted. The bill prohibits the government from designating large areas as blighted, when the actual blighted area consists of a small portion of the area. This bill aided property owners’ rights because it prohibits a condemning authority from deeming entire neighborhoods blighted. Additionally, now condemning authorities must prove any individual residential property to be actually blighted before an authority can commence an eminent domain proceeding. In the state of Wisconsin though, the definition of “blight” still remains at large and open to interpretation, so unfortunately, this means that property owners are still in a vulnerable state because of the open interpretation.
Hiring a Wisconsin Eminent Domain Attorney
The most blatant form of eminent domain abuse occurs when the government or condemning authority makes a ‘low ball’ offer. This scenario invariably requires the property owner to hire an attorney to obtain just compensation. Fortunately, the vast majority of Wisconsin eminent domain attorneys work on a contingent fee basis, meaning they charge a percentage of the additional money they obtain for the property owner.
With the contingent fee structure, the attorney assumes the risk for earning a fee, so most eminent domain attorneys will conduct a free case evaluation prior to recommending representation. Property owners are generally only responsible for paying costs, with the primary cost being the appraiser who values the property.
Do I have the Ability to Recover Attorneys Fees in Wisconsin?
Fortunately for Wisconsin property owners, the government or condemning authority is required to pay your attorneys fees and costs when certain criteria are met. In some cases, even small claimants can hire an attorney to pursue their claim for just compensation. Learn more about hiring a Wisconsin eminent domain attorney today by calling us at (866) 692-8805.
Very few attorneys can claim expertise in the area of wisconsin eminent domain law. Make sure you obtain a consultation from a Wisconsin eminent domain attorney so that you know and understand your rights before taking any action. Remember, the government is like any buyer, they will want to purchase your property as cheaply as possible, and their appraisers may neglect to consider damages that can lead to a larger amount of just compensation.
As you are likely aware, taking matters into your own hands when it comes to condemnation is highly discouraged, and could result in a scenario where you do not receive just compensation. So it is smart to consult a Wisconsin condemnation attorney for assistance. For instance, you could end up ruining a good claim by attempting to negotiate with the condemning authority prior to consulting with an eminent domain attorney, or you might settle for much less than what you deserve. Please read Why Act Now in our Resource Center to learn more about why you should hire a Wisconsin condemnation attorney early in the process.
Attorney’s fees and costs may be awarded if the final award is at least $700 and 15% higher than the final offer. Attorney fees can be recovered in eminent domain proceedings for a number of reasons:
- The condemnor abandons action
- The condemnor does not have right to condemn
- Owner is successful in pursuing an inverse condemnation claim
- The award of the condemnation commission exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least $700 and at least 15% and neither party appeals the award to the circuit court;
- The jury verdict as approved by the court exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least $700 and at least 15%;
- The owner appeals an award of the condemnation commission which exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least $700 and at least 15%, if the jury verdict as approved by the court exceeds the award of the condemnation commission by at least $700 and at least 15%;
- The government appeals the award of the condemnation commission, if the jury verdict as approved by the court exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least $700 and at least 15%;
- The owner appeals an award of the condemnation commission which does not exceed the jurisdictional offer or the highest written offer prior to the jurisdictional offer by 15%, if the jury verdict as approved by the court exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least $700 and at least 15%; Wis. Stat. § 32.28.
Wisconsin Courts have consistently interpreted their attorney fee recovery statute liberally in favor of property owners. A Wisconsin appellate court has held:
The legislative intent in drafting their attorney fee recovery statute was (1.) to discourage the condemnor from making inequitably low jurisdictional offers, and (2) to force the condemnor to indemnify the condemnee for attorney’s fee incurred by an appeal. Standard Theatres, Inc. v. Department of Transportation, 118 Wis.2d 730, 741, 349 N.W.2d 661, 668 (1984). In allowing condemnee to recover litigation expenses, the legislator sought to provide just compensation by ensuring that part of the award would not have to be used to pay for litigation expenses. Green Bay Redevelopment Authority v. Bee Frank, Inc, 120 Wis.2d 402, 412, 355 N.W.2d 240, 245 (1984).
Wisconsin courts not only liberally construe the statue on behalf of property owners, they also take into consideration the statute’s purpose, which is to make a property owner ‘whole’ by compensating the owner for the value of the land taken and for attorneys fees incurred in pursuing the land owners constitutional right for just compensation. Standard Theatres, 349 N.W.2d at 670.
Click to read more information about Assembly Bill 657.
The state of Wisconsin responded to Kelo by passing legislation that prevents the government from using eminent domain to acquire property for economic development. What they failed to provide is a tightened definition of blight, which would go a long way towards protecting property owner rights. The US Supreme court stated long ago that ‘blight’ satisfied the public use requirement, which therefore provided governing agencies with the authority to use eminent domain to acquire ‘blighted’ property. Since WI has failed to provide a tightened definition of ‘blight’, governing agencies can easily abuse this designation to acquire ‘blighted’ property for ‘redevelopment’.
Until Wisconsin establishes a strong statutory definition of blight to limit the government’s use of this designation, property owners will still be susceptible to unwarranted property acquisitions.
Although Wisconsin property owners have minimal rights if their property is designated ‘blighted’, some WI residents have found an alternate remedy to stop the acquisition of their property for redevelopment. Property owners have a voice and more importantly a vote. When the City of Greenfield created a redevelopment area and designated properties as ‘blighted’, residents exercised their freedom of speech and publicly opposed the project. Their opposition generated national attention and ultimately persuaded the City to stop the project. And how can we forget about 94 year old Earl Geifer whose property was to be acquired by eminent domain and in turn sold to a developer? Public outcry coupled with the support of the Castle Coalition effectively persuaded the City of Oak Creek to stop the condemnation process.
Until WI tightens the definition of blight, Wisconsin property owners are encouraged to use alternate remedies such as demanding legislative change and voting city officials out of office who support the use of eminent domain to acquire property that, for all practical purposes, is not blighted. Orchestrating support within the community to generate publicity is another grassroots remedy that should be used by property owners to help persuade city officials to shelve projects permanently.
Recent Eminent Domain News and Projects in Wisconsin
In a recent Wisconsin Supreme Court decision, Southport Commons, LLC v. Dep’t of Trasp., the Wisconsin Supreme Court once again restricted the ability of property owners to recover damages when they are negatively impacted by state road projects. Unfortunately, I think the Court got this one wrong. But it will be up to the Legislature…
On February 28th, 2012 the Wisconsin Supreme Court adopted our position of the property owner relative to the application of summary judgment to forfeiture procedures in State v. Ryan , 2012 WI 16 (Feb. 28, 2012). In this case, the state alleged that our client, Basil E. Ryan, Jr. unlawfully placed and maintained a sunken barge…
Wisconsin Supreme Court Rules on Contamination Valuation in Eminent Domain Claims The Wisconsin Supreme Court recently reviewed 260 North 12th Street, LLC v. Wisconsin DOT, 2010 WI App 138, 329 Wis. 2d 748, 792 N.W.2d 572 and took the majority state opinion that in condemnation proceedings, the government is allowed to introduce evidence of environmental contamination and…
Questions about Wisconsin Eminent Domain Law or if you’re interested in a free consultation, contact us today! If you want to call us, our main number is 866-339-7242. We look forward to hearing from you.