Chapter 32

32.26(2)(a) (a) The department of administration shall promulgate rules to implement and administer ss. 32.19 to 32.27.

32.26(2)(b) (b) The department of administration and the department of transportation shall establish interdepartmental liaison procedures for the purpose of cooperating and exchanging information to assist the department of administration in promulgating rules under par. (a).

32.26(3) (3) The department of administration may make investigations to determine if the condemnor is complying with ss. 32.19 to 32.27. The department may seek an order from the circuit court requiring a condemnor to comply with ss. 32.19 to 32.27 or to discontinue work on that part of the project which is not in substantial compliance with ss. 32.19 to 32.27. The court shall give hearings on these actions precedence on the court’s calendar.

32.26(4) (4) Upon the request of the department of administration, the attorney general shall aid and prosecute all necessary actions or proceedings for the enforcement of this subchapter and for the punishment of all violations of this subchapter.

32.26(5) (5) Any displaced person may, prior to commencing court action against the condemnor under s. 32.20, petition the department of administration for review of his or her complaint, setting forth in the petition the reasons for his or her dissatisfaction. The department may conduct an informal review of the situation and attempt to negotiate an acceptable solution. If an acceptable solution cannot be negotiated within 90 days, the department shall notify all parties, and the petitioner may then proceed under s. 32.20. The informal review procedure provided by this subsection is not a condition precedent to the filing of a claim and commencement of legal action pursuant to s. 32.20. In supplying information required by s. 32.25 (2) (d), the condemnor shall clearly indicate to each displaced person his or her right to proceed under this paragraph and under s. 32.20, and shall supply full information on how the displaced person may contact the department of administration.

32.26(6) (6) The department of administration, with the cooperation of the attorney general, shall prepare pamphlets in simple language and in readable format describing the eminent domain laws of this state, including the reasons for condemnation, the procedures followed by condemnors, how citizens may influence the condemnation process and the rights of property owners and citizens affected by condemnation. The department shall make copies of the pamphlets available to all condemnors, who may be charged a price for the pamphlets sufficient to recover the costs of production.

32.26(7) (7) The department of administration shall provide technical assistance on relocation plan development and implementation to any condemnor carrying out a project which may result in the displacement of any person.

32.26 History History: 1971 c. 103; 1971 c. 211 s. 126; 1977 c. 438, 449; 1979 c. 361; 1983 a. 236 s. 12; 1985 a. 332 s. 251 (5); 1987 a. 399; 1995 a. 27 ss. 1727 to 1735, 9116 (5); 2011 a. 32.

32.26 Cross-reference Cross-reference: See also s. Adm 92.001, Wis. adm. code.

32.27 32.27 Records to be kept by condemnor.

32.27(1) (1) Contents of records. The condemnor shall maintain records for each project requiring a relocation payment plan. The records shall contain such information as are necessary to carry out ss. 32.19 and 32.25 to 32.27. The records shall be preserved by the condemnor for a period of not less than 3 years after conclusion of the project to which the records pertain.

32.27(2) (2) Costs of relocation payments and services; sharing formula.

32.27(2)(a) (a) The costs of relocation payments and services shall be computed and paid by the condemnor and included as part of the total project cost.

32.27(2)(b) (b) If there is a project cost-sharing agreement between the condemnor and another unit or level of government, the costs of relocation payments and services shall be shared in the same proportion as other project costs unless otherwise provided. This direct proportion formula may be changed to take advantage of federal relocation subsidies. It is intended that the payments and services described by ss. 32.19 to 32.27 are required for any project whether or not it is subject to federal regulation under P.L. 91-646; 84 Stat. 1894. The intent of this paragraph is to assure that condemnors take maximum advantage of federal payment or assistance for relocation, and to ensure that in no event will any displaced person receive a combined payment in excess of payments authorized or required by s. 32.19 or by federal law.

32.27 History History: 1971 c. 103; 1977 c. 418; 1991 a. 189.

32.27 Cross-reference Cross-reference: See also s. Adm 92.001, Wis. adm. code.

32.28 32.28 Costs.

32.28(1) (1) In this section:

32.28(1)(a) (a) “Consumer price index” means the average of the consumer price index over each 12-month period, all items, U.S. city average, as determined by the bureau of labor statistics of the U.S. department of labor.

32.28(1)(b) (b) “Litigation expenses” means the sum of the costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees necessary to prepare for or participate in actual or anticipated proceedings before the condemnation commissioners, board of assessment or any court under this chapter.

32.28(2) (2) Except as provided in sub. (3), costs shall be allowed under ch. 814 in any action brought under this chapter. If the amount of just compensation found by the court or commissioners of condemnation exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer, the condemnee shall be deemed the successful party under s. 814.02 (2).

32.28(3) (3) In lieu of costs under ch. 814, litigation expenses shall be awarded to the condemnee if:

32.28(3)(a) (a) The proceeding is abandoned by the condemnor;

32.28(3)(b) (b) The court determines that the condemnor does not have the right to condemn part or all of the property described in the jurisdictional offer or there is no necessity for its taking;

32.28(3)(c) (c) The judgment is for the plaintiff in an action under s. 32.10;

32.28(3)(d) (d) The award of the condemnation commission under s. 32.05 (9) or 32.06 (8) exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least the amount specified in sub. (4) and at least 15 percent and neither party appeals the award to the circuit court;

32.28(3)(e) (e) The jury verdict as approved by the court under s. 32.05 (11) exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least the amount specified in sub. (4) and at least 15 percent;

32.28(3)(f) (f) The condemnee appeals an award of the condemnation commission which exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least the amount specified in sub. (4) and at least 15 percent, if the jury verdict as approved by the court under s. 32.05 (10) or 32.06 (10) exceeds the award of the condemnation commission by at least the amount specified in sub. (4) and at least 15 percent;

32.28(3)(g) (g) The condemnor appeals the award of the condemnation commission, if the jury verdict as approved by the court under s. 32.05 (10) or 32.06 (10) exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least the amount specified in sub. (4) and at least 15 percent;

32.28(3)(h) (h) The condemnee appeals an award of the condemnation commission which does not exceed the jurisdictional offer or the highest written offer prior to the jurisdictional offer by 15 percent, if the jury verdict as approved by the court under s. 32.05 (10) or 32.06 (10) exceeds the jurisdictional offer or the highest written offer prior to the jurisdictional offer by at least the amount specified in sub. (4) and at least 15 percent; or

32.28(3)(i) (i) The condemnee appeals an assessment of damages and benefits under s. 32.61 (3), if the judgment is at least the amount specified in sub. (4) and at least 15 percent greater than the award made by the city.

32.28(4) (4) 

32.28(4)(a) (a) The amount for the purposes of sub. (3) (d) to (i) shall be $2,700, adjusted as specified in par. (b).

32.28(4)(b) (b) Beginning on January 1, 2018, and annually on January 1 thereafter, the department of administration shall adjust the dollar amount specified in par. (a) by an amount equal to that dollar amount multiplied by the percentage change in the consumer price index for the prior year, rounded to the nearest dollar. The department shall publish the dollar amounts on its Internet site. Notwithstanding s. 227.10, the adjusted dollar amounts need not be promulgated as rules under ch. 227.

32.28 History History: 1977 c. 440; 1983 a. 236; 1995 a. 140; 2017 a. 59; 2021 a. 238.

32.28 Annotation Under sub. (3) (d), the difference between the award and offer must meet both the $700 and 15 percent tests, but the two are not cumulative. City of La Crosse v. Benson, 101 Wis. 2d 691, 305 N.W.2d 184 (Ct. App. 1981).

32.28 Annotation A condemnee may not recover attorney fees incurred prior to a jurisdictional offer. A contingent fee of 40 percent of an award, plus interest, was reasonable. A condemnor must pay an appraiser for time spent as an adviser during most of a trial. Kluenker v. DOT, 109 Wis. 2d 602, 327 N.W.2d 145 (Ct. App. 1982).

32.28 Annotation An evidentiary hearing on the reasonableness of litigation expenses is discretionary, not mandatory. Appellate litigation expenses may be awarded. Narloch v. DOT, 115 Wis. 2d 419, 340 N.W.2d 542 (1983).

32.28 Annotation For attorney fees to be found reasonable, a condemnee is not required to retain counsel from the locality where the condemned property is located. It implies a reasonable choice of counsel based on the facts of the case. Standard Theatres, Inc. v. DOT, 118 Wis. 2d 730, 349 N.W.2d 661 (1984).

32.28 Annotation Litigation expenses were properly awarded under sub. (3) (b) when the condemnor failed to establish the necessity for taking the property. Toombs v. Washburn County, 119 Wis. 2d 346, 350 N.W.2d 720 (Ct. App. 1984).

32.28 Annotation A successful plaintiff in an inverse condemnation action was entitled to litigation expenses, which included expenses related to a direct condemnation action. Expenses related to an allocation proceeding under s. 32.11 were not recoverable. Maxey v. Redevelopment Authority, 120 Wis. 2d 13, 353 N.W.2d 812 (Ct. App. 1984).

32.28 Annotation An award under s. 32.06 (8) exclusively for a tenant’s immovable fixtures constitutes a separate award for purposes of sub. (3) (d). The unit rule of damages is inapplicable. Litigation expenses are awarded by court order, not by the clerk under s. 814.10. Redevelopment Authority v. Bee Frank, Inc., 120 Wis. 2d 402, 355 N.W.2d 240 (1984).

32.28 Annotation A contingent fee contract, while not improper, is only a guide in awarding expenses under sub. (3) (e). Milwaukee Rescue Mission, Inc. v. Redevelopment Authority, 161 Wis. 2d 472, 468 N.W.2d 663 (1991).

32.28 Annotation A judge who assigns a condemnation petition to the commission may award attorney fees when neither party appeals the commission’s award. Discussing contingent fees as the basis of an award. Village of Shorewood v. Steinberg, 174 Wis. 2d 191, 496 N.W.2d 57 (1993).

32.28 Annotation The award of litigation expenses upon abandonment of condemnation proceedings applies to all condemnations under this chapter. Expenses may be awarded when any proceeding in the process is abandoned. Pelfresne v. Dane County Regional Airport, 186 Wis. 2d 538, 521 N.W.2d 460 (Ct. App. 1994).

32.28 Annotation When an award is appealed, but does not proceed to a verdict, the issue of litigation expenses is treated as arising under sub. (3) (d). Dickie v. City of Tomah, 190 Wis. 2d 455, 527 N.W.2d 697 (Ct. App. 1994).

32.28 Annotation Attorney fees may not be awarded when an attorney-client relationship does not exist. An attorney represented by the attorney’s own law firm is not entitled to attorney fees. Dickie v. City of Tomah, 190 Wis. 2d 455, 527 N.W.2d 697 (Ct. App. 1994).

32.28 Annotation When language in a lease provided that the lessor would receive all of any condemnation award, the calculation of the 15 percent under sub. (3) (e) was based on the entire jurisdictional offer, even though under the terms of the lease the lessee was entitled to payments from the lessor upon condemnation. Van Asten v. DOT, 214 Wis. 2d 135, 571 N.W.2d 420 (Ct. App. 1997), 96-1835.

32.28 Annotation Sub. (3) (b) entitles a successful condemnee to litigation expenses when the condemnor fails to negotiate in good faith before issuing the jurisdictional offer. Good faith negotiation prior to issuing a jurisdictional offer is not merely a technical obligation, but rather, is a fundamental, statutory requirement necessary to validly commence condemnation and confer jurisdiction on the condemnation commission and the courts. Warehouse II, LLC v. DOT, 2006 WI 62, 291 Wis. 2d 80, 715 N.W.2d 213, 03-2865.

32.28 Annotation This section does not expressly state that fees are only recoverable prior to abandonment or if the continuation of proceedings is not attributable to the condemnee. However the circuit court in this case properly exercised its discretion in determining that the fees incurred after abandonment were not reasonable or necessary. DSG Evergreen F.L.P. v. Town of Perry, 2007 WI App 115, 300 Wis. 2d 590, 731 N.W.2d 667, 06-0585.

32.28 Annotation Litigation expenses shall be awarded to an owner under sub. (3) (d) if the owner conveys the property and receives a certificate of compensation pursuant to s. 32.06 (2a), with no jurisdictional offer issued under s. 32.06 (3); timely appeals to the circuit court, which refers the matter to the chairperson of the county condemnation commissioners; is awarded at least $700 and at least 15 percent more than the negotiated price under s. 32.06 (2a); and neither party appeals the commission’s award. Klemm v. American Transmission Co., 2011 WI 37, 333 Wis. 2d 580, 798 N.W.2d 223, 09-2784.

32.29 32.29 False statements prohibited. Any officer, agent, or employee of a governmental body or business entity granted condemnation power under s. 32.02 (1) or (3) to (16) who intentionally makes or causes to be made a statement which he or she knows to be false to any owner of property concerning the condemnation of such property or to any displaced person concerning his or her relocation benefits under s. 32.19, 32.20, 32.25, or 32.26 or who fails to provide the information required under s. 32.26 (6) shall be fined not less than $50 nor more than $1,000, or imprisoned for not more than one year in the county jail or both.

32.29 History History: 1977 c. 158; 1983 a. 27 s. 879; Stats. 1983 s. 32.29; 2015 a. 55.

subch. II of ch. 32 SUBCHAPTER II

ALTERNATE EMINENT DOMAIN
PROCEDURES IN 1ST CLASS CITIES

32.50 32.50 Definitions. In this subchapter:

32.50(1) (1) “Benefit district” means the area benefiting from and assessed for an improvement under this subchapter.

32.50(2) (2) “Board” means the board of assessment.

32.50(3) (3) “City” means any 1st class city.

32.50(4) (4) “Common council” means the common council of the city.

32.50 History History: 1983 a. 236.

32.51 32.51 Exercise of eminent domain.

32.51(1) (1) Purposes. In addition to the powers granted under subch. I and subject to the limitations under s. 32.015, any city may condemn or otherwise acquire property under this subchapter for:

32.51(1)(a) (a) Any purpose stated in article XI, section 3a, of the constitution.

32.51(1)(b) (b) Public alleys, grounds, harbors, libraries, museums, school sites, vehicle parking areas, airports, markets, hospitals, ward yards, bridges, viaducts, water systems and water mains.

32.51(1)(c) (c) Constructing and maintaining sewers.

32.51(1)(d) (d) Slum elimination.

32.51(1)(e) (e) Low-income housing.

32.51(1)(f) (f) Blighted area redevelopment.

32.51(1)(g) (g) Any other municipal purposes.

32.51(2) (2) Levying assessments. Any city may levy assessments on property benefited to finance improvements under this subchapter.

32.51 History History: 1983 a. 236, 538; 1995 a. 378; 2017 a. 59.

32.52 32.52 Board of assessment.

32.52(1) (1) Creation. There is created a board, to which the mayor shall appoint 5 members with the appointments confirmed by the common council. If the common council rejects any appointment, the mayor shall submit a new appointment within 30 days.

32.52(2) (2) Terms. The terms of the first 5 members of the board are staggered at 1, 2, 3, 4 and 5 years, each term commencing on January 1 of the year of the appointment. Subsequent appointments occur annually in December to succeed the member whose term expires the following January 1. The term of each subsequent appointment is 5 years, commencing on January 1 following the appointment.

32.52(3) (3) Qualifications of members. One member shall have a general understanding of real estate values in the city and shall be a real estate broker licensed under s. 452.12 with at least 5 years’ experience. One member shall be a civil engineer and have a general understanding of building and construction costs. Three members shall own real property in the city. All members shall be residents and electors of the city.

32.52(4) (4) Organization. The board shall elect a chairperson to preside over all meetings of the board. The common council shall determine the compensation of each board member and of permanent employees of the board and may increase the compensation provided to full-time board members. The board shall determine the compensation of temporary employees. Permanent or temporary technical advisers and experts of the board are not classified under s. 63.23, but all other clerks and employees of the board are classified under s. 63.23.

32.52(5) (5) Budget process. The board shall annually prepare a budget for its operation on or before September 1. The common council may levy an annual tax to support the board’s operations. If the common council appropriates funds to the board, the board may draw from the funds only upon written order signed by a board member and the city comptroller.

32.52 History History: 1983 a. 236.

32.53 32.53 Resolution of necessity. If the common council proposes any public improvement involving the acquisition of private property or the use of public property, it shall pass a resolution by a three-fourths vote of the entire membership of the common council declaring the need to acquire or use certain property for a specified purpose. The common council shall state in its resolution the general nature of the proposed improvement and require the board to submit a report and tentative plan of the proposed improvement to the common council for its approval. The board may require the city engineer to submit to the board a detailed map and description of the property necessary for the proposed improvement plus adjacent property and other surveys, maps, descriptions of property or estimates of cost the board needs to prepare the report and tentative plan.

32.53 History History: 1983 a. 236.

32.54 32.54 Report and tentative plan of improvement.

32.54(1) (1) Contents. The board shall submit to the common council a report and tentative plan of improvement following passage of a resolution under s. 32.53. The report and tentative plan shall include the following:

32.54(1)(a) (a) An estimate of the total cost of the improvement.

32.54(1)(b) (b) A map and description of all property to be taken or used or that may be benefited. The board shall indicate on the map the extent and boundary of the benefit district and a maximum and minimum benefit assessment rate for any representative parcel of property within the benefit district to indicate the estimated amount of the benefits that may be assessed.

32.54(2) (2) Cost estimate. The board shall include the value of any city property and the cost of any previously completed improvement it incorporates into the report and tentative plan as part of the estimate of the cost of the improvement. The cost of grading, paving or repaving or laying out or improving any curbs, gutters or sidewalks for which benefits have been legally assessed prior to the adoption of the plan of improvement may not be included in the estimate, the determination of benefits or the cost of the proposed improvement.

32.54 History History: 1983 a. 236.

32.55 32.55 Hearing on the report and tentative plan of improvement.

32.55(1) (1) Notice. Upon receiving the report and tentative plan of improvement the common council shall refer the report to a council committee for a public hearing to discuss the tentative plan, the relative costs and benefits and the necessity of the proposed improvement. At least 10 days before the public hearing, the common council shall send notice of the hearing to the last-known mailing address of any owner of property that may be damaged or benefited by the proposed improvement.