The Basics of Wisconsin Eminent Domain

Eminent domain is a fairly common term. You may have heard of it and have a general idea of what it is. It is where the State, a municipality, or in some cases a private company like a transmission line company use the law to take private property from people against their will.

Eminent domain is the government’s ability to take private property for public use, with the caveat that to a certain extent they have to pay for it.  The power of eminent domain is derived from the Fifth Amendment of the United States Constitution. This provision is commonly referred to as the Takings Clause. It states that private property shall not “be taken for public use, without just compensation.

The Wisconsin Constitution has a similar Takings Clause provision. The Wisconsin Constitution provides that “The property of no person shall be taken for public use without just compensation." Article I, section 13 of the Wisconsin Constitution.

The government exercises its eminent domain power for a broad range of uses. Commonly, these uses include acquiring land for schools, parks, and public buildings, and also for highway construction (new roadways, expanding existing roadways, roundabouts, frontage roads, etc.) and utility projects such as power lines, and gas pipelines. The government can use eminent domain to take land for public buildings such as schools, airports, government building, and public parks, however, the government continues to expand its use of eminent domain and increasingly is attempting to use this power to acquire land under the guise of calling it “blighted property” but often actually conveying the property to private developers. This is one of the most controversial and problematic uses of eminent domain when the government takes private land for the benefit of private companies or developers. Many people feel that this is unconstitutional and should not be allowed except, perhaps, in very exceptional circumstances. Wisconsin law supports this view.

In Wisconsin, eminent domain is commonly used by the Wisconsin Department of Transportation (DOT) to acquire land for highway projects. In addition to taking land for Wisconsin highway projects, the Wisconsin Department of Transportation will acquire Temporary Limited Easements to occupy part of your property during construction. They will also acquire highway easements and right of way.

You are entitled to “just compensation” for any taking. Just compensation is usually calculated based on fair market value however the law surrounding how fair market value is calculated has become very complex. There are numerous things to consider in determining what just compensation is for the taking of your property and some areas of this law are not well settled.

If the Wisconsin Department of Transportation, for example, is taking all of your property, you are entitled to compensation for all of your property. This is called a Total Taking. If the DOT is only taking part of your property, it is called a Partial Taking. In the case of a Partial Taking, you are entitled to compensation for your lost property, and also, to a certain extent, for loss in value and damage to your remaining property. It can often be very difficult to analyze early in the process the full extent of the losses and damages that the condemning authority may be liable for.

Wisconsin law provides the option to have a full eminent domain highest and best use narrative appraisal prepared early in the eminent domain process, however in many cases it is not a very good idea to do this. The DOT will provide you with an appraisal, and inform you that you are allowed to get your own independent appraisal. However, because this appraisal will be turned over to the DOT or other condemning authority it will quite possibly be available to a commission, judge, or possibly even to a jury should the matter go that far. Therefore it is very important to consult with an eminent domain lawyer as early as possible in the process to decide whether it is a wise idea to get an appraisal early in the process or to let matters unfold. Proceeding in a methodical way can provide greater insight as to what is happening and if so make sure that the appraiser follows the appropriate guidelines, but this is not the best approach in every case. Millions of dollars are lost every year by Wisconsin landowners due to appraisers not knowing all of the laws, rules, and guidelines that apply to Wisconsin eminent domain law.

Eminent domain appraising, just like eminent domain law, is a niche area of practice. Not all appraisers are familiar with eminent domain appraising and even those who are typically have their own areas of particular knowledge. Again, if at all possible, it is very important to consult with a Wisconsin eminent domain attorney before obtaining an appraisal or hiring an appraiser, and if possible before meeting with the agents of the condemning authority.

Overall, the eminent domain process is a highly technical and, at times, overwhelming process, however under Wisconsin law there are sometimes more protections than it might at first seem. It is important you are aware of your rights under Wisconsin law. It often seems like the government can attempt to acquire your property as quickly as possible and for as little money as possible, making sure you are being treated fairly will bring peace of mind. Please contact our office for a free consultation to discuss your rights.

Eminent Domain Services, LLC serves Dane County, including Madison, Middleton, Baraboo, Wisconsin Dells and Reedsburg, and the Wisconsin counties of Adams, Ashland, Barron, Bayfield, Brown, Burnett, Buffalo, Calumet, Clark, Columbia, Crawford, Dane, Dodge, Door, Douglas, Dunn, Eau Claire, Florence, Fond du Lac, Forest, Grant, Green, Green Lake, Iowa, Iron, Jackson, Jefferson, Juneau, Kenosha, Kewaunee, La Crosse, Lafayette, Langlade, Lincoln, Manitowoc, Marathon, Marinette, Marquette, Menominee, Milwaukee, Monroe, Oconto, Oneida, Outagamie¸ Ozaukee, Pepin, Pierce, Polk, Portage, Price, Racine, Richland, Rock, Sauk, Sawyer, Shawano, Sheboygan, Saint Croix, Taylor, Trempealeau, Vernon, Vilas, Walworth, Washburn, Washington, Waukesha, Waupaca, Waushara, Winnebago and Wood.