Property Owners Could Be Deprived of Their Properties Under Condemnation Procedures

Property Owners Could Be Deprived of Their Properties Under Condemnation Procedures
John Bruce In Wisconsin, various state departments, cities, towns, and others, have the power to acquire your property through condemnation. In this article, West & Dunn attorney John Bruce explains when and how this procedure can be implemented.
In Wisconsin, various state departments, cities, towns, villages, school districts, and in some cases railroads and utilities, have the power to acquire property through condemnation. This is sometimes referred to as the power of eminent domain. Condemnation may take place without the consent of the owner of the property, provided the owner receives fair compensation for the property. All property owners should be aware of condemnation procedures.

There Must Be a Legitimate Public Purpose in Order to Condemn Private Property

There must be a legitimate public purpose for the government to exercise its condemnation powers. For example, Wisconsin statutes permit cities to acquire property for “parks, recreation, water system, sewage or waste disposal, airports or approaches thereto, cemeteries, vehicle parking and for any other public purpose.” What constitutes a public purpose supporting condemnation is construed very broadly, so the condemnation power is extensive. The law grants the owner certain important rights to protect the owner’s interest, however.

Condemnation Procedure

Although it can occur with some variety, generally condemnation proceeds as follows in the case of condemnation by a municipality.

The Municipality Must Determine the Necessity of Condemnation

First, the governing body of the municipality is required to make a determination of the necessity for the taking of property by the government. However, “necessity” does not mean absolutely necessary in order to accomplish a particular purpose. All that must be determined is that acquiring the property is reasonably necessary and proper to accomplish the public purpose for which the property is sought. The condemning authority’s conclusion that condemnation is necessary must be based on reasonable grounds. The grounds cannot be the result of fraud, bad faith, or abuse of discretion. The law generally recognizes the municipal authority has considerable discretion in determining necessity, and courts will not usually second guess the wisdom of a municipality’s determination. Courts may, however, review determinations for reasonableness. Generally, a municipal entity will adopt resolutions making the determination of necessity.

Negotiating the Value of the Property to be Condemned

The authority must obtain at least one full narrative appraisal of the property proposed to be acquired. The appraiser selected by the municipality must confer with the owner of the property regarding its valuation, if reasonably possible. The property owner is to be provided with a copy of the appraisal. The owner must also be informed of his or her right to obtain an appraisal, which will be paid by the condemning authority. If the owner pursues this, a copy of the owner’s appraisal must be provided to the municipality within 60 days after the owner receives a copy of the condemnor’s appraisal.

The law then requires the municipality to negotiate personally with the owner for the purchase of the property, and it must consider the owner’s appraisal during the negotiation. The owner must be provided with copies of state-prepared pamphlets regarding condemnation rights, if appropriate. The condemnor must also provide the owner with the names of at least 10 neighboring landowners to whom offers are being made as part of the public project for which condemnation is sought, or a list of all such owners if less than 10 owners are affected, together with a map showing all property affected by the project. The owner of any other property to be taken must be identified on request.

If negotiations are successful, the municipality must record any conveyance by the owner, which must state the identity of all persons having an interest in the property, the legal description of the property, the nature of the interest acquired and the amount of compensation. Any person named in the conveyance may appeal from the amount of compensation within 6 months after the date of the recording of the conveyance.

Process for Setting Value if Negotiations are Unsuccessful

If negotiations are not successful, the municipality must send the owner a “jurisdictional offer” to acquire the property at a certain purchase price. If the jurisdictional offer is not accepted, the authority may petition a court to determine the amount of just compensation. The petition must state that the jurisdictional offer has been made and rejected but may not disclose the amount of the jurisdictional offer. Alis pendens (formal notice of commencement of condemnation proceedings) must be filed with the Register of Deeds office on the same date as the petition is filed. The date of filing is the date of valuation for purposes determining just compensation. If such a case is filed, the court must immediately assign the matter to the county condemnation commission. A hearing on the petition by the commission may not be earlier than 20 days after the date of filing of the petition.

The chairperson of the county condemnation commission must select 3 commissioners to serve as a commission within 7 days of the petition assignment. A hearing must be held before the commission not less than 20 nor more than 30 days after assignment. After the hearing, the commission must make its award and file it with the clerk of the circuit court. The clerk is required to give notice of the filing of the award by certified mail with return receipt requested and provide a copy of the award to the condemner and the owner. The rules of evidence do not apply to the hearing, although it is to respect legal privileges (such as the attorney-client privilege). The commission must make its written award within 10 days after the conclusion of the hearing.

The authority must pay the owner the amount of the award plus legal interest from the date of taking. This must be done within 70 days after the filing of a commission’s award. At the option of the authority, it may pay the award into the office of the clerk of the circuit court and give notice thereof to all interested parties by certified mail.

Appealing a Condemnation Award

Either the authority or the owner may appeal to the circuit court within 60 days after the day of filing the commission’s award by giving notice of the appeal to the opposing party and the clerk of the circuit court. Trial is by jury unless the parties stipulate otherwise. If either party appeals to the circuit court, the owner is not entitled to receive the amount of compensation paid into the court by the condemner unless the owner files a surety bond with the clerk in an amount equal to one half of the commission's award.

The owner of the property is entitled to an award of attorney’s fees and costs if the award of compensation exceeds the final offer of the authority by 15% or more.

If you have questions about condemnation procedures, or any other legal matter, please feel free to reach out to the legal professionals at West & Dunn by calling (608) 490-9449 or contacting us online.

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