Stop and take a deep breath! Usually, when landowners are contacted by the Wisconsin Department of Transportation or other government agency looking to acquire their property they are caught off guard. They did not plan on selling their property. Or, even if they had heard it was going to happen, the surprise of actually being contacted will catch them off guard.
It is important that you do not rush into anything. Eminent domain is a process. The government will try to get you to sign on the dotted line for as little compensation as possible. You may be happy to have some money in your pocket, but in reality you may be getting significantly less compensation than you are entitled to.
Therefore, when you are contacted by the government about acquisition of your land it is important to get all the facts. What property exactly are they taking? How will your remaining property be damaged? Are any easements or land use restrictions being imposed?
The best way to get these questions answered is by having your own eminent domain appraisal prepared. Frequently, the government's appraisal will miss important things or severely undervalue your land.
However, it is also important to remember that not every appraiser is qualified to write an eminent domain appraisal. You need an appraiser who is well versed in writing appraisals for landowners (as well as the government).
The attorneys at Lind Weininger LLC can help you with this process and ensure all your questions are answered. We will put together a plan to ensure that you receive the amount of compensation you are entitled to. Contact us toll free at (855) 387-2321 for a free consultation.
It is well established that the state of Wisconsin has broad power to acquire private property through eminent domain or condemnation. However, many landowners are not aware that they have significant rights in the eminent domain process. There are extensive appeals procedures in tact for landowners to ensure that they receive "just compensation" for their land. In addition, in many (if not most) instances the acquiring authority must pay for your attorneys fees.
Many landowners are not aware of the specifics of these appeals procedures. They are not sure when they can appeal or how long they have to appeal. This uncertainty is illustrated in a recent free initial consultation I had with a potential client.
The potential client contacted my office after the Wisconsin Department of Transportation ("DOT") was in the process of sending him a Jurisdictional Offer ("JO") for his land. He believed that his land was significantly undervalued and inquired whether I would be interested in representing him in his appeal. He was aware that if he accepted the JO, he would have 2 years to appeal the amount of the award.
The potential client said he felt bad though, because one of his neighbors had accepted DOT's first offer. He was concerned that since his property was significantly undervalued (his JO was significantly more than the initial offer), his neighbor likely agreed to a price significantly less than fair market value and therefore significantly less than what he was entitled to. Since, the neighbor agreed to the sale, the potential client thought his neighbor could not appeal and therefore would not be able to receive additional compensation.
I stopped the potential client right there. YOU CAN APPEAL EVEN IF YOU AGREED TO SELL YOU LAND! (Don't worry, I didn't yell). Even if you voluntarily agree to sell your property to DOT, I told the potential client, you can still appeal. Under Wis. Stat. § 32.05 (DOT acquisitions) and Wis. Stat. § 32.06 (all other government acquisitions), if during the negotiation period, you agree to sell your land, you have 6 months from the date of recording of the "certificate of compensation" to appeal the amount you are paid.
So if you agree to sell during the negotiation process, you can still appeal. However, in addition to the 6 month time limit, there are significant procedural requirements and other concerns. Therefore, you should talk to an experienced eminent domain attorney to find out your rights and what options you have.
Call me directly at (608) 807-1829 or email me at andrew@lindweininger for a free consultation to see if you can and should appeal your eminent domain award. You have nothing to lose!
It can be overwhelming and unnerving when you receive an appraisal from the government (or other acquiring authority) at the beginning of the eminent domain process. Most often, you haven't given much thought to what your property is worth because you had no plans on selling it in the first place. Situations of "partial takings," where the only part of your property is being taken, can be especially confusing. What exactly are they taking? What am I being compensated for? Am I being compensated for damage caused to my remaining land? And most importantly, am I being fairly and fully compensated for my land? It is vital to get your own appraisal completed to, at the very least, ensure that the acquiring authority's appraisal is accurate. Frequently, the government or acquiring authority's appraiser will drastically undervalue your property value. Therefore, you may find that your property is significantly more valuable then the government's appraisal indicates. If you don't have your own appraisal completed-- you'll never know. Having your own appraisal completed is a no brainer because you can have it completed at NO COST TO YOU. Under Wisconsin law, you have the right to have your own full narrative appraisal to be paid for by the government or other acquiring authority. To be reimbursed, you must submit your appraisal to the acquiring authority within 60 days of receiving the government's appraisal to receive full reimbursement. However, there are a number of practical and strategic considerations to take into account. It is a good idea to consult with an eminent domain attorney early in the process to ensure your rights are protected. First, it is important to select an experienced eminent domain appraiser (more extensively discussed here). Eminent domain appraising, like eminent domain law, is a niche area. It is important to select an appraiser well versed in eminent domain appraising. We can help you select an experienced eminent domain appraiser in your area to complete your appraisal within the strict time limits. Second, an experienced eminent domain attorney can assist with certain strategic considerations to ensure that you are fully and fairly compensated for your land. In certain situations, it is wise to not submit your appraisal for reimbursement. This is because under Wisconsin law, the government must pay all of your costs and attorney's fees if you recover more than 15% and $700 than the government offers. To avoid this, the government will raise their offer just enough to make recovery of costs and attorney's fees unlikely while still offering significantly less than the appraised value. Therefore, you end up getting significantly less than the property is worth. We can work with you to analyze your case and make a determination as to if submitting your appraisal for reimbursement is wise. If we determine that submitted your appraisal for reimbursement would be detrimental to you, we will advance the costs of the appraisal on your behalf, to be recovered later. So there is still not cost of obtaining an appraisal for you. The eminent domain and condemnation process can be overwhelming and confusing. If you believe your land will be acquired or the eminent domain process has already begun, I urge you to give me a call at (608) 807-1829 or email me at andrew@lindweininger.com. I would be happy to discuss your case and offer you some insights and advice. There is no cost or obligation to you.
Steve's liquor store put up a valiant fight against the condemnation of its west side location. However, as what happens far too often in condemnation cases, Steve's lost. Last week the Madison City Council approved an $18 million intersection project for the corner of Mineral Point and Junction Road. Now, Steve's must be out of their 8302 Mineral Point Road location by the first of the year. In an article published by The Capital Times (available here), Shawn Doherty reported on the troubles Steve's is having finding a replacement location for its condemned building. To quote Mr. Doherty's article: "Over the past several months, owners [Randy] Wautlet, Karen Eigenberger, and Joe Varese have posed a billboard ad protesting the project, emailed regular customers and put a message on their website saying: "Stop Steve's from condemnation!" But by Tuesday night, Wautlet was just asking the alders for mercy. 'I know we're not going to stop the intersection. It's water under the bridge,' he said. "I'm here to ask for the city of Madison's help." Help finding a basement, he explained, or maybe even digging one. He's looked at more than 100 potential relocation sites for the liquor store, and none have any underground space suitable for wine storage." I never realized the importance of a basement for a wine and liquor store like Steve's (did you?), although it makes sense. This is a perfect example of the holes in eminent domain and condemnation law that frequently affect small business owners. For example, if the construction of a round-a-bout makes access to a gas station extremely difficult, the business may not seek compensation for decreased profits. Similarly here, Steve's building is undoubtedly more valuable for Steve's because it is unique and works well for this type of business. According to Mr. Doherty's article it appears that the City of Madison and Mayor Soglin will assist Steve's in finding a new location. While this is encouraging, it certainly does not fully make up for the struggles that Steve's will face ahead due to the City's use of condemnation.
I recently spoke with a landowner who was concerned about the possibility of the government exercising its eminent domain power to acquire part of his land. The landowner was curious about the eminent domain process as a whole and what rights he is afforded by Wisconsin law. During our conversation, I explained that the acquiring authority must attempt to negotiate a purchase price for your land. The landowner questioned the purpose of negotiation because the government is required to pay the landowner "just compensation" in order to take the land. Therefore, the landowner was confused as to why negotiation was necessary.I believe this is a common question that many landowners have: Shouldn't I just accept the government since they have to pay me fair market value?The answer is a resounding no. The government will frequently pay landowners less (and sometimes far less) than the fair market value for their property. It is common for government appraisers to choose a highest and best use for property that is short of the property's actual potential. For example, choosing a highest and best use of Agricultural, when the area will likely become a commercial or residential development in the next 5 years. In addition, the government appraiser will sometimes miss important damages to your land when it is a partial taking. These include damages to access points and severance damages.It is important to have your own appraisal done before accepting the government's offer to ensure that none of these mistakes were made. (For more information about the eminent domain appraisal process review my Avvo Legal Guide.) In addition, it is wise to speak with an experienced eminent domain attorney to ensure that your rights are protected. If you have any questions about this or other eminent domain issues please submit them using the contact form or email me at andrew@adw-law.com.
I just published by second Avvo legal guide titled "Eminent Domain: The Appraisal Process." My goal was to provide a general (non-state specific) guide to selecting an appraiser for individuals involved in the eminent domain process nationwide. It is not intended to be a technical guide, but rather important things to consider. All of the things I discuss certainly apply to the Wisconsin Eminent Domain process. However, there is one important thing to remember about the WI appraisal process. In WI, you have the right to be reimbursed for the reasonable cost of your appraisal. However, the reasonable cost of such appraisal must be submitted to the acquiring authority within 60 days after receiving the authority's full narrative appraisal. Update 7/26/11- To clarify, in certain situations it is not wise to seek reimbursement for appraisals costs. You do not want to seek reimbursement when your appraiser values your land at a significantly higher amount then the government offers. However, if your appraiser confirms the government's appraised value it is wise to seek reimbursement of these costs since you do not plan to appeal. If you have a few minutes, I encourage you all to visit Avvo to see my profile and also read my new legal guide. Thanks!
A New Jersey Appellate court recently affirmed a 2008 jury award of $18.6M to the former landowners of 3.4 acres of property with view of downtown Manhattan. (See: http://www.nj.com/jjournal-news/index.ssf/2011/06/court_rejects_challenge_to_186.html) The Jersey City redevelopment agency condemned the land in 2004 as part of a waterfront redevelopment project. The landowners were originally offered $3.9 million. The landowners appraiser valued the land at $25.4M.
Interestingly, Jersey City (and it's taxpayers) are not on the hook for the $18.6M award (now over $22M including interest), rather, the developer Peter Mocco is fully responsible for the full thing.
Unless the waterfront redevelopment has been hugely successful (which is very doubtful in this financial climate), I would guess that the former landowners would struggle to see all $18.6M. If I were them, I would try to get a reduced cash settlement up front to try to avoid the developer declaring bankruptcy.
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On June 16, 2011, the Wisconsin Assembly passed the budget along party lines and in doing so rejected proposed changes to eminent domain law. Opponents of the change argued that the changes would make it more difficult for property owners to challenge a property taking. The proposed change would have raised the threshold at which landowners could obtain litigation expenses for challenging the amount of just compensation in circuit court. Currently litigation expenses are awarded to land owners who challenge the taking in circuit court and are awarded more than $700 and at least 15% more than the taking amount.
Journal Sentinel reporter Thomas Content stated that opponents of the change emphasized that "[a]warding legal fees [is] a linchpin of landmark eminent domain legislation that Wisconsin passed in the 1970s to protect private property rights." In addition, such a change would lead to fewer opportunities for property owners to get fair compensation for condemned land.
To see Mr. Content's full story visit: http://www.jsonline.com/blogs/business/123766164.html
The Marshfield News-Herald reports that that Judge Todd Wolf ruled in favor of the state during an eminent domain commissioner hearing. Originally Judi and Milton Luchau refused the state's offer of $161,000 to purchase the home through eminent domain in 2008. Attempting to prevent the taking, the Luchau's filed suit in circuit court. However, that suit was dismissed and the Court of Appeals denied their petition for review.
Wednesday the couple presented their case to the three-person Wood County Condemnation Commission. The Luchaus bought the approximately 3,000 square foot home in 1986 for $85,000. Citing the depressed economic market the Luchaus asserted that they were entitled to more than the $161,000 the state paid. Said Judi Luchau:
"We want compensation for the value of our home. Not just the fair market value because this is a market that isn't fair... the economic downturn and lagging local home sales have caused the value of the property to be less than what it should be."
However, under current Wisconsin law landowners are only entitled to the fair market value of the property, even if the market is struggling. Generally, the fair market value is determined by using comparable property sales and adjusting for replacement cost, depreciation, age, ect.
Do you think that homeowners should be compensated when there land is taken during an economic downturn? There is little to no chance that such compensation will ever be allowed. However, doesn't it seem unfair that while others are allowed to ride out the depressed market, the Luchaus lose a large chunk of their biggest asset through no fault of their own?
To see the full story visit: http://www.marshfieldnewsherald.com/article/20110616/MNH0101/106160603/No-end-yet-Highway-10-eminent-domain-court-fight
On May 26, 2011, the Wisconsin Supreme Court reversed a published opinion of the Court of Appeals holding that a jurisdictional offer is a prerequisite to litigation expenses in Klemm v. American Transmission Company, LLC, 2011 WI 37. Pursuant to Wis. Stat. Sec. 32.28(3)(d), a property owner may recover litigation expenses if the owner conveys the property under the negotiated price, the owner timely appeals and the owner is awared at least $700 and at least 15% more than the negotiated price. In denying litigation expenses, the court of appeals ruled that Wis. Stat. Sec. 32.28(3)(d) permits an award only when a jurisdictional offer has been made.
In overturning the court of appeals decision, the Supreme Court concluded that "litigation expenses shall be awarded to an owner pursuant to Wis. Stat. § 32.28(3)(d) if the owner conveys the property and receives a certificate of compensation pursuant to § 32.06(2a),with no jurisdictional offer issued under § 32.06(3); timely appeals to the circuit court, which refers the matter to thechairperson of the county condemnation commissioners; and isawarded at least $700 and at least 15% more than the negotiated price under § 32.06(2a); and neither party appeals the commission's award."
The Supreme Court observed that normally courts uphold the American Rule that parties are responsible for their own legal fees, but that "litigation expenses may be shifted [as] a matter of policy to be determined by the legislature." The court recognized the right to litigation expenses as having a "dual purpose." The dual purpose is "(1) to discourage the condemnor from making inequitably low jurisdictional offers and (2) to make the condemnee, who meets the statutory requirements, whole."
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