Eminent Domain FAQ 3

Can a Wisconsin municipality condemn private property for every kind of public purpose?

No. Cities and villages are empowered to acquire land under Wis. Stat. secs. 62.22 and 61.34 by condemnation for a number of specific purposes and “for any other public purpose.” Exercise of this power must comply with the procedures and requirements of chapter 32, which authorizes cities and villages to “acquire and hold, or transfer to the state” property that “cannot be acquired by gift or purchase at an agreed price” “for any lawful purpose.”

The statutory phrases “any public purpose” and “any lawful purpose” are limited by sec. 13, art. I of the Wisconsin Constitution to “public use” under the current interpretations of our state Supreme Court. Significantly, unlike the interpretation of “public use” in the federal constitution, the phrase “public use” in art. I, sec. 13 is not synonymous with “public purpose” or “public benefit.” Therefore, Wisconsin cities and villages are not empowered to condemn private property for every kind of public purpose. Rather, such a condemnation must be for a “public use” and provide for “the direct public use and occupation of property so acquired” to be constitutionally valid. David Jeffrey Co. v. City of Milwaukee, 267 Wis. 559, 577, 66 N.W.2d 362 (1954).

Following the U.S. Supreme Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005), the Wisconsin legislature also restricted municipal ability to use eminent domain to acquire property for redevelopment where the property would be conveyed to or leased to a private entity. See Wis. Stat. sec. 32.03(6).