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Eminent Domain and Condemnation 

What is Condemnation?

Condemnation is the process of taking private property under the power of Eminent Domain.  It is the right of government or assignors (utility  companies) to take private property or have an easement on private property for the greater good of the public. The key of Eminent Domain is that the taking must be proven to be for the greater good of the public.

The goal of the condemnation process and Eminent Domain law is to protect the private property owner's interests by keeping them "whole" through the  process.  The protection is set forth in the 5th and 14th Amendments of the U.S. Constitution.  Keeping them "whole" means that the private property owner should receive just compensation for their losses of both property and damages caused by the taking to the remaining property (if any).
     
Terms You Should Know

  • Eminent Domain - the governmental right to take private property for public use upon the payment of just compensation.
  • Condemnation - the exercise of the power of eminent domain by the government.  Therefore, condemnation is the process of taking private property through the authority of eminent domain.
  • Taking - the actual land and rights being transferred from the condemnee to the condemnor.
  • Condemnor - the entity doing the taking.
  • Condemnee - the private property owner whose property is being taken.
  • Loss and Damages - compensation given to the condemnee for the monetary loss and damages to their property caused by the taking.

Common Examples of Eminent Domain

  • Taking for roadway purposes.
  • Taking for re-routing waterways.
  • Taking for redevelopment in downtown areas.
  • Taking for the installation of utilities such as high-power electric transmission lines and natural gas transmission pipelines.

Wisconsin Statute 32 is a Wisconsin law regulating the rights of Eminent Domain for both the condemnor (party  exercising Eminent Domain) and the condemnee (private property holder).  This Statute, along with Federal rules and regulations, is set to protect rights of the private property holder insuring that they get  fair and just compensation for property being taken. This fair and just compensation includes loss of property and damages to the remaining property.  The goal of Statute 32.09 and Federal law is to have the private property owner remain whole as a result of the taking.  To remain whole is not to profit nor lose as a result of property being taken.
 

Condemnation Process

It is important to understand the condemnation process the State of Wisconsin follows.  This is a four stage process.

Stage 1 - Discovery, negotiations and initial offer.

  • This stage begins with the condemnor making initial contact with the property owners whose property is being taken, examining their property, completing an appraisal of the loss and damages, and negotiations for settlement.
  • It concludes with a written offer to the property owner for the loss and damages of the taking.  A copy of their appraisal is included with this offer.
  • The property owner has the right to accept the offer, which will end the process, or reject the offer which leads to the next stage.

    Note:  Often the condemnor will offer an early settlement called a "nominal offer" (or similar heading) which offers a nominal cash settlement in exchange of the condemnee waving their right to an appraisal.  The condemnee can accept the offer which will end the condemnation process or reject the offer, requesting the condemnor to complete an appraisal on the taking.

Stage 2 - Second Opinion (60-day time period)

  • If the property owner rejects the initial offer, they have the right to an appraisal of their own to determine the loss and damages resulting from the taking.
  • This right allows the condemnee the right to choose any appraiser he or she desires.  The law requires the condemnor to reimburse the condemnee for this appraisal expense if it is reasonable. (Our service contract guarantees that our fees are reasonable.)
  • This right to a second, independent opinion is part of Wisconsin Statute 32.  It was  placed in the law so that the condemnee would not be unnecessarily burdened due to the taking.
  • To receive reimbursement, the condemnee's appraisal and billing must be post marked within 60-days of receipt of the condemnor's appraisal and initial offer.

Stage 3 - Renegotiations and final offer

  • After the condemnor has received the condemnee's appraisal and billing, they will review it and reimburse the condemnee for the appraisal fee. This reimbursement typically takes thirty days or less.
  • The condemnor will continue to negotiate a settlement with the condemnee during this time.
  • If both parties reach a settlement, then the process is over and the condemnee will receive the agreed upon amount in exchange for the property being taken.
  • If neither party can agree, then the condemnor will proceed to file a Jurisdictional Offer which is their final offer.  The property owner has 20 days to accept or reject this offer.  No response is considered a rejection.
  • If the property owner rejects the Jurisdictional Offer, then the condemnor will file for an Award of Damages.  An Award of Damages gives the condemnor full rights to conclude the taking. Accompanying this Award will be payment for the amount of the Jurisdictional Offer.  The condemnee can cash this check without forfeiting their right to appeal the amount of just compensation.

Stage 4 - Appeal and challenge right to take.

  • If the condemnee is not satisfied with the Award of Damages, they can file an appeal.
  • The appeal should be filed by an attorney and must be made within 24 months of the date of the Award of Damages (6 months for utility easements). If the condemnee desires to challenge the right to take the  property, they have 40 days to do so. 
  • Typically, the appeal would be heard by a Condemnation Commission.  This Commission is made up of three Court appointed individuals, one of which must be an attorney, that will hear the appeal.
  • If either party does not like the findings of the Condemnation Commission, then they can appeal to the Circuit Court.
  • In roadway condemnations the condemnee can elect to go directly to the Circuit Court, by-passing the Commission.
  • The next step after the Commissioner's Hearing is Circuit Court where the case will be heard again, and the Court will decide their own Award of Damages.

    There are costs to the appeal.

    a)   If the Award of Damages found by the Commissioners or Court is either $750 or 15% more (whichever is greater) than the Jurisdictional Offer, then the condemnor must pay all the condemnee's legal expenses and expert witness fees.
    b)   If the Award of Damages found by the Commission or Court is not $750 or 15% more than the Jurisdictional Offer, then the condemnee must pay all legal and expert witness fees themselves.
    c)   Whatever the results of the appeal, the condemnee does not incur the condemnor's legal or expert witness expenses.

     
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