Eminent Domain

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103. Visibility of private property from a public road is not a cognizable legal right giving rise to a protected property interest and city’s construction of a pedestrian bridge over a highway which obstructed visibility of an existing billboard, is not a taking of property requiring just compensation under the Wisconsin or U.S. Constitution. 
Adams Outdoor Advertising v. City of Madison, 2018 WI 70. Published as a League League-L e-Newsletter.

102. 2017 Wis. Act 243 expands condemnation relocation benefits by increasing caps on business replacement payments, allowing reasonable projects costs which include capital, financing, professional service, utility-related and imputed administrative costs, and, for a limited time, authorizing litigation costs for certain prevailing owners.

101. Provision in county ordinance which merged two substandard lots under common ownership preventing owners from selling either of the lots separately did not effect a Taking under the Fifth Amendment to the U.S. Constitution which prohibits the taking of private property without just compensation. 
Murr v. Wisconsin, 582 U.S. ___ (2017). In determining the denominator in a Takings case (the proper unit of property against which to assess the effect of the challenged governmental action), a court must, using an objective analysis, consider a number of factors including the treatment of the land under state and local law; the physical characteristics of the land; and the prospective value of the regulated land giving special attention to the effect of the burdened land on the value of other holdings. In this case, the Court concluded the Murrs’ two lots should be treated as one for takings analysis. First, Wisconsin property law – specifically, the merger provision – treats the two parcels as one. Second, the lots are contiguous, and their “rough terrain,” “narrow shape,” and riverfront location all make land-use regulations predictable. Third, the lots are more valuable when combined. The Wisconsin court of appeals was correct in using the two parcels as the denominator, and concluding no Taking occurred (case summary by Jeff Mandell, Stafford Rosenbaum LLP).

100. Village’s ownership of dam placed across navigable waterway which served to pond a lake and which was washed out by flooding did not make village responsible for per se taking of owner’s property where village did not engage in any action that resulted in the destruction of owner’s property .Village’s failure to act on knowledge it allegedly had about the relative elevations of homeowner’s property and the dam, so as to prevent or mitigate flooding that subsequently destroyed home, did not constitute government action, as required to support homeowner’s takings claim under the inverse condemnation statute Fromm v. Vilage of Lake Delton, 2014 WI App 47. 6/2014.

99. The standard for a taking in an airplane overflight case is whether the overflights have been low enough — that is, invasions of a person’s block of superadjacent airspace — and frequent enough to have a direct and immediate effect on the use and enjoyment of the person’s property. If this standard can be satisfied, the government has “taken” an easement without paying compensation for it. Brenner v. City of New Richmond, 2012 WI 98, __ Wis. 2d __, __ N.W.2d __. 7/2012.

98. Whether a property is an uneconomic remnant under 32.06(3m) is not just a question of value — a circuit court must also determine whether the property is of substantially impaired economic viability. Waller v. American Transmission Co., LLC, 2010AP1447 (Ct. App. May 25, 2011) (Waller II) (publication recommended). 5/2011.

97. When property owners challenge a taking of private property through condemnation proceedings with an “uneconomic remnant” claim, a circuit court must first determine whether any remaining property is an “uneconomic remnant” under 32.06(3m) before deciding the value of just compensation. Waller v. American Transmission Co., LLC, 2010AP1447 (Ct. App. May 25, 2011) (Waller II) (publication recommended). 5/2011.

96. Environmental contamination and the need to remediate the contamination are relevant to fair market value of land and, therefore, evidence related to such matters is relevant to a determination of just compensation pursuant to Wis. Stat. sec. 32.09(5)(a) and admissible in eminent domain cases. 260 North 12th Street, LLC v. State of Wisconsin Department of Transportation, 2009AP1557 (Ct. App. Sept. 14, 2010) (publication recommended). 9/2010.

95. Landowner who seeks compensation for damages to building and its support system allegedly caused by government extraction of groundwater from an adjacent parcel of land, which reduces groundwater levels under the landowner’s property, states a tort claim for compensatory damages, not an uncompensated taking of private property, where landowner does not provide any proof of groundwater value and evidence shows that alleged government damage did not deprive landowner of all, or substantially all, of the beneficial use of its building. E-L Enterprises, Inc., v. Milwaukee Metropolitan Sewerage District, 2010 WI 58. 7/2010.

94. The application of the well-established unit rule which requires that property which is the subject of eminent domain proceedings be valued with respect to its gross value as a single entity as if there was only one owner does not deprive a tenant who holds a long-term favorable lease in property with a fair market value of zero of just compensation under the Constitution. The tenant receives just compensation when it receives no compensation for its leasehold interest in a property that has no value. City of Milwaukee Post No. 2874 Veterans of Foreign Wars of U.S. v. Redevelopment Authority of City of Milwaukee, 2009 WI 84, rev’g  2008 WI App 24, 746 N.W.2d 536. 7/2009.

93. Utilizing fair market value as the sole measure of a compensation award in a condemnation action that involves a long-term lease that contains no condemnation forfeiture provision when the value of the leased property is zero is inappropriate since it produces an unconstitutional taking of property without just compensation. City of Milwaukee Post 2874 VFW v. Redevelopment Authority of the City of Milwaukee, 2008 WI App 24, 746 N.W.2d 536, Petition for Review filed. 2/2008.

92. A condemnor has no affirmative duty to advise a condemnee of two-year statutory time limit imposed by Wis. Stat. sec. 32.20 for seeking condemnation compensation under Wis. Stat. secs. 32.19 or 32.195 even where condemnor acknowledges rights of condemnee to such compensation. C. Coakley Relocation Systems, Inc. v City of Milwaukee, 2007 WI App 209. 8/2007.

91. In satisfying its statutory obligation to make available a comparable replacement property pursuant to Wis. Stat. sec. 32.05(8)(b)-(c), prior to being entitled to a writ of assistance, a condemnor must proceed to identify one or more properties that meet the parameters of Wis. Stat. sec. 32.19(2)(c) to serve as a comparable replacement business. Relocation assistance provided under Wis. Stat. sec. 32.19(2)(c) does not require identification of a property that is identical to the property condemned or a property that, at the moment of identification, without modification, can be used by the business that was relocated. Rather, it requires identification of a property that with modification can be used for the occupier's business. City of Janesville v. CC Midwest, Inc. 2007 WI 93 (By Mark Steichen). 7/2007.

90. Relocation assistance benefits provided by Wis. Stat. sec. 32.19(3) and (4m) do not have a direct relationship to the fair market value of a tenant's interest, and therefore, are incidental or consequential damages that are not considered in the constitutional requirement for just compensation. City of Janesville v. CC Midwest, Inc. 2007 WI 93 (by Mark Steichen). 7/2007.

89. Describes 2005 Wisconsin Act 233, which imposes post-Kelo limitations on the use of eminent domain in redevelopment. 5/2006. 

88. A municipality's obligation under Wis. Stat. sec. 32.05(8) to make available " a comparable replacement property" in a condemnation action is not satisfied by identifying property that can be made comparable as defined in sec. 32.19(2)(c) and offering the payments identified in sec. 32.19(3) and (4m) and the municipality may not require the occupant of a condemned property to vacate the property acquired by the municipality without identifying a comparable replacement property meeting the applicable definition under sec. 32.19(2). City of Janesville v. CC Midwest, Inc., Appeal No. 2004 AP 267 (Ct. App. January 26, 2006) (recommended for publication). 1/2006.

87. Note reports U.S. Supreme Court decision to address how much protection the Fifth Amendment's public use requirement provides for individuals whose property is being condemned for the purpose of economic development in the eminent domain case from the Connecticut Supreme Court, Kelo v. City of New London, 268 Conn. 1, 843 A.2d 500 (Ct. 2004) and two eminent domain decisions from state courts also addressing the "public use" requirement, Bailey v. City of Mesa, 206 Ariz. 224, 76 P.3d 898 (App. 2003) and County of Wayne v. Hathcock, 2004 WL 1724875, ___ Mich. __, 684 NW.2d 765 (2004). 9/2004.

86. The expansive language in sec. 62.22(1) which allows cities to condemn property outside corporate limits for "any other public purposes" must be interpreted as authorizing cities to condemn property outside city limits for highway purposes, particularly in light of the express authority given to villages in sec. 61.34(3), Stats., to condemn property outside of village limits for streets. 11/2000.

85. Describes changes to the administrative rule governing the payment of relocation assistance, ch. Comm 202, Wis. Admin. Code, which are beneficial to municipalities and which took effect April 1, 1997. Note: Also effective April 1, 1997, ch. ILHR 222, Wis. Admin. Code, (formerly ch. ILHR 202) was renamed ch. Comm 202, Wis. Admin. Code. 1/1998.