Chapter 32

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.

32.55(2) (2) Approval, revision, abandonment.

32.55(2)(a) (a) After the hearing the common council shall:

32.55(2)(a)1. 1. Approve the report and tentative plan, if it determines that taking the property mentioned in the plan is necessary, and commence implementation of the plan; or

32.55(2)(a)2. 2. Remand the report and tentative plan to the board for reconsideration and revision.

32.55(2)(b) (b) If the common council remands the report and tentative plan, the board shall reconsider the report and tentative plan and submit a revised report and tentative plan to the common council. The common council shall refer the revised report and tentative plan to a council committee for a public hearing as provided in sub. (1). After the hearing, the common council may approve the revised report and tentative plan or revise the report and tentative plan itself and commence implementation of the plan. Instead of approving the original or revised report and tentative plan, the common council may abandon the proposed improvement.

32.55(2)(c) (c) After approving the report and tentative plan the city may begin purchasing property to implement the plan.

32.55(3) (3) Records. The city attorney shall record the common council’s resolution approving the original or revised report and tentative plan with a description of the property to be condemned plus a map showing the condemned property and the benefit district in the office of the register of deeds of the county in which the property is located.

32.55 History History: 1983 a. 236; 1993 a. 301.

32.56 32.56 Altering the plan of improvement.

32.56(1) (1) Procedure. The city may alter the plan of improvement after its approval under s. 32.55 (2) at any time prior to the confirmation of the assessment of benefits and damages. The board shall submit to the common council the proposed alteration of the plan plus an amended estimate of the cost and the benefits and an amended map of the proposed improvement. The common council shall approve the alteration by resolution before the alteration is effective. If the city alters the plan while benefits and damages are being assessed under s. 32.57, the board shall reassess benefits and damages based on the altered plan.

32.56(2) (2) Recording the alteration. The city attorney shall record the common council’s resolution approving the alteration under sub. (1) plus a description of the alteration in the office of the register of deeds of the county in which the property is located.

32.56 History History: 1983 a. 236; 1993 a. 301.

32.57 32.57 Determining benefits and damages.

32.57(1) (1) Resolution. After approving the plan under s. 32.55 (2), the common council may adopt a resolution directing the board to determine the damages to be paid for property condemned and the benefits to be assessed against property benefited within the benefit district. The board shall include the cost of all property acquired by purchase or condemnation for the improvement, as well as the cost of physical improvements that are approved under s. 32.55 (2), in the assessment of benefits and shall report its findings to the common council.

32.57(2) (2) Exempt property. The board may not assess benefits against any property:

32.57(2)(a) (a) Owned exclusively by the federal government.

32.57(2)(b) (b) Included in a tax certificate previously issued under s. 74.57.

32.57(2)(c) (c) Owned exclusively by or held in trust exclusively for this state, if exempt from taxation. Land contracted to be sold by this state is not exempt from assessment. State land that is part of a pedestrian mall under s. 62.71 is exempt from assessment only if it is held or used exclusively for highway purposes. State payment of assessments against a pedestrian mall is governed by s. 66.0705 (2).

32.57(2)(d) (d) Owned or occupied rent free exclusively by any county, city, village, town, school district or free public library.

32.57(2)(e) (e) Used exclusively for public parks, boulevards or pleasure drives by any city or village.

32.57(2)(f) (f) Owned by a military organization as a public park or memorial ground and not used for profit.

32.57(2)(g) (g) Owned by any religious, charitable, scientific, literary, educational or benevolent association, incorporated historical society or public library association or by any fraternal society, order or association operating under the lodge system if the property is used not for profit or lease exclusively for the purposes of the association and is necessary for the location and convenience of the buildings of the association. This paragraph does not apply to any university, college or high school fraternity or sorority. Property reserved for a chartered college or university is exempt from assessment. Leasing buildings owned by associations listed in this paragraph for schools, public lectures, concerts or parsonage does not waive this exemption from assessment.

32.57(2)(h) (h) Owned by any corporation formed solely to encourage the fine arts without capital stock and paying no dividends or profits to its members.

32.57(2)(i) (i) Under any endowment or trust for the benefit of a state historical society.

32.57(2)(j) (j) Owned and used exclusively by any state or county agricultural society or by any corporation or association for the encouragement of industry by agricultural and industrial fairs and exhibitions or for exhibition and sale of agricultural and dairy stock, products and property. Real property exempt under this paragraph may not exceed 80 acres. The corporation or association may permit use of this property as places of amusement.

32.57(2)(k) (k) Owned or operated for cemetery purposes by any cemetery authority, as defined in s. 157.061 (2), including any building located in the cemetery and owned and occupied exclusively by the cemetery authority for cemetery purposes or any property held under s. 157.064 or 157.11.

32.57(2)(L) (L) Used as a children’s home.

32.57(2)(m) (m) On which a Wisconsin national guard armory is located.

32.57(2)(n) (n) Of any public art gallery to which the public has free access not less than 3 days per week.

32.57(2)(o) (o) Of any religious organization, up to 320 acres, used as a home for the mentally ill, as defined in s. 51.01 (13).

32.57(2)(p) (p) On which is located a memorial hall to members of the armed forces, owned by the Grand Army of the Republic, the Women’s Relief Corps, the Sons of Veterans, the United Spanish War Veterans, the American Legion or the Veterans of Foreign Wars.

32.57(2)(q) (q) Owned and used exclusively by any collective bargaining unit established under ch. 111.

32.57(2)(r) (r) Owned and used exclusively by any farmers’ organization.

32.57(2)(s) (s) Owned by the Boy Scouts and Girl Scouts of America.

32.57(2)(t) (t) Owned by an incorporated turner society and used exclusively for educational purposes.