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. §§ 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 phrases “any lawful purpose” and “any public purpose” are not limitless grants of authority but are instead constrained by the Wisconsin Constitution. The Wisconsin Constitution limits municipal condemnation by use of the term “public use.” “Public use” in Wis. Const. art. I, § 13 requires “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). Incidental public benefits will not suffice. As such, Wisconsin cities and villages are not empowered to condemn private property for every kind of public purpose.

Of note, following the U.S. Supreme Court’s decision in Kelo v. City of New London, 545 U.S. 469 (2005), the Wisconsin legislature 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. Wis. Stat. § 32.03(6)(b).

(rev. 7/22)