Written by attorney Andrew D. Weininger

Just Compensation: An Overview of Wisconsin Eminent Domain and Condemnation Law

The United States and Wisconsin Constitutions permit the government and utility companies to take private property for public use, in exchange for just compensation. This power is called eminent domain or condemnation.

I. "...nor shall private property be taken for public use without just compensation."

A. Public Use

Public use commonly includes the construction of roads, bridges, power lines, railroad tracks, public parks and other basic government projects. However, state and local governments continue to broaden what qualifies as public use.

In 2005, the Supreme Court ruled in Kelo v. City of New London, 545 U.S. 469, that state and local governments may exercise eminent domain power to transfer land from one private landowner to another if done for economic development. The 5-4 decision was viewed as a crushing blow to landowner rights and led to a waive such transfers.

State governments responded to protect landowners rights and limit eminent domain power. By 2007, 42 states had passed legislation limiting eminent domain power. This included Wisconsin, which in 2006 passed legislation prohibiting condemnation of nonblighted property for transfer to a private entity (2005 Wisconsin Act 233).

However, as a way to get around this restrictive eminent domain law, Wisconsin state and local governments continue to broaden the definition of "blighted" property. Labeling private property as "blighted" leaves property owners with very little property rights.

Recently, there was some support for the inclusion in the state budget of a more strict definition of "blighted" as a means to protect private property rights. However, that provision was eventually left out of the final Wisconsin state budget.

B. Just Compensation

The right of individuals to be fairly compensated for property taken by the government is one of the most fundamental protections afforded under the United States Constitution. The Takings Clause of the Fifth Amendment specifically states that "private property [shall not] be taken for public use without just compensation."

However, landowners whose property is taken for public projects are not always offered just compensation for their property. Therefore, Wisconsin law provides for a statutory process for contesting the value of just compensation. It is a technical process requiring strict deadlines and various procedural requirements. In addition, it is vital to acquire your own accurate real estate appraisal in order to get a "second opinion" as to the value of your land. Eventually, the eminent domain appeal process may lead to mediation and litigation in circuit court to determine the fair value of land. Luckily, in certain situations the acquiring authority may be required to pay all litigation expenses.

II. Wisconsin Eminent Domain Law: Protect Your Rights

If your land is subject to eminent domain or condemnation proceedings, or you are concerned it may be, it is vital that you know your rights and ensure that they are protected. Here are a few important rights to remember:

  1. You have the right to a full narrative appraisal of your property done by a qualified appraiser and may submit the cost of such appraisal for reimbursement. Sometimes you want to take advantage of this opportunity, sometimes you do not. Each situation is different.
  2. If only a part of your land is taken it is called a partial acquisition. In that situation, the fair market value of the land taken is either the fair market value of the part acquired or the difference between the value of your remaining property before the acquisition and the value after the taking, whichever is greater.
  3. After your property is taken, you may appeal the amount of just compensation in circuit court. As of the date of acquisition you have 6 months to appeal the amount of a conveyance and two years to appeal the amount of an award of damages.
  4. The acquiring authority must pay all legal fees and expenses in certain situations.

These are four very important landowners rights in Wisconsin. However, this is far from a complete list. If you are involved in the eminent domain or condemnation process (or think you may be) it is important to contact an experienced eminent domain attorney to ensure that your rights are protected and that you receive just compensation for your land.

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