32.05 Annotation Filing of an award is complete, and the 60-day appeal period under sub. (10) (a) begins to run, when the commission has filed its award with the circuit court clerk and the clerk has mailed and recorded the award under s. 32.08 (6) (b). Dairyland Fuels, Inc. v. State, 2000 WI App 129, 237 Wis. 2d 467, 614 N.W.2d 829, 99-1296.

32.05 Annotation Consistent with Peterson, 226 Wis. 2d 623 (1999), service on the state through the attorney general, rather than the Department of Transportation, was sufficient service under sub. (10). Dairyland Fuels, Inc. v. State, 2000 WI App 129, 237 Wis. 2d 467, 614 N.W.2d 829, 99-1296.

32.05 Annotation Section 893.80 (1) [now s. 893.80 (1d)] does not require that the making of a relocation order be the first step in the condemnation process. Danielson v. City of Sun Prairie, 2000 WI App 227, 239 Wis. 2d 178, 619 N.W.2d 108, 99-2719.

32.05 Annotation “Acceptance and retention of any compensation” under sub. (3) (h) requires that the landowner negotiate the check and retain the check proceeds before the landowner can be barred from contesting the condemnation. Additionally, a landowner who negotiates the check but returns the proceeds to the Department of Transportation before filing suit may pursue an action contesting the condemnation. TFJ Nominee Trust v. DOT, 2001 WI App 116, 244 Wis. 2d 242, 629 N.W.2d 57, 00-2099.

32.05 Annotation Taking jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated but instead focuses on the extent of the interference with rights in the parcel as a whole. R.W. Docks & Slips v. State, 2001 WI 73, 244 Wis. 2d 497, 628 N.W.2d 781, 99-2904.

32.05 Annotation Sub. (8) does not mean that a court may not grant a condemnor possession of condemned premises until a replacement property deemed acceptable by the condemnee is procured, regardless of its acquisition costs, all of which the condemnor must bear or tender, nor does it mean that the condemnee will never have to vacate the condemned property if a replacement property acceptable to the condemnee cannot be acquired for an amount not exceeding the award of compensation plus the maximum relocation benefits to which the condemnee is entitled. Dotty Dumpling’s Dowry, Ltd. v. Community Development Authority, 2002 WI App 200, 257 Wis. 2d 377, 651 N.W.2d 1, 01-1913.

32.05 Annotation A condemnor may obtain a writ of assistance after it has provided the relocation assistance to which a displaced person is statutorily entitled. Dotty Dumpling’s Dowry, Ltd. v. Community Development Authority, 2002 WI App 200, 257 Wis. 2d 377, 651 N.W.2d 1, 01-1913.

32.05 Annotation When the condemnee’s counsel instructed the Department of Transportation to not contact the condemnee directly regarding the condemnation, the instruction constituted a special circumstance that excused the department from having to serve the jurisdictional offer on the condemnee personally. Morris v. DOT, 2002 WI App 283, 258 Wis. 2d 816, 654 N.W.2d 16, 02-0288.

32.05 Annotation Income evidence is generally disfavored as a method of measuring property values. It is within the trial court’s discretion to admit or exclude this evidence. National Auto Truckstops, Inc. v. DOT, 2003 WI 95, 263 Wis. 2d 649, 665 N.W.2d 198, 02-1384.

32.05 Annotation Section 893.80 (1) [now s. 893.80 (1d)] does not apply to appeals of condemnation awards under sub. (11). Nesbitt Farms, LLC v. City of Madison, 2003 WI App 122, 265 Wis. 2d 422, 665 N.W.2d 379, 02-2212.

32.05 Annotation A business that owned a parking lot used for customer and employee parking was an occupant of the lot and a displaced person under s. 32.19 (2) (e) eligible for relocation benefits under sub. (8). City of Milwaukee v. Roadster LLC, 2003 WI App 131, 265 Wis. 2d 518, 666 N.W.2d 524, 02-3102.

32.05 Annotation The sale price of a surrounding property voluntarily sold to the condemnation authority is not admissible in determining the fair market value of a property taken by formal condemnation proceedings. That formal condemnation had not been commenced at the time of the sale did not make the evidence admissible when the condemning authority’s intent was known at the time of the sale. Pinczkowski v. Milwaukee County, 2005 WI 161, 286 Wis. 2d 339, 706 N.W.2d 642, 03-1732.

32.05 Annotation In certain situations, fair market value may be proved using offers to purchase, but only when they are made with actual intent and pursuant to an actual effort to purchase. In order to qualify as probative evidence, there must be a preliminary foundation of the bona fides of the offer, the financial responsibility of the offeror, and the offeror’s qualifications to know the value of the property. Pinczkowski v. Milwaukee County, 2005 WI 161, 286 Wis. 2d 339, 706 N.W.2d 642, 03-1732.

32.05 Annotation Sub. (11) does not require service of an authenticated copy of a notice of appeal. To cut off the landowners’ right to a review when they complied with the literal language of the service requirement in sub. (11) would be extraordinarily harsh. Landings LLC v. City of Waupaca, 2005 WI App 181, 287 Wis. 2d 120, 703 N.W.2d 689, 04-1301.

32.05 Annotation Section 801.02 (1) serves to extend by 90 days the two-year deadline in sub. (9) (a) for the filing of the proof of service. When the original assignment of an appeal to the condemnation commission was premature because the proof of service had not yet been filed, but the defect was corrected within the extended time limits, there was no impediment to the issuance of a fresh assignment of the appeal. Community Development Authority v. Racine County Condemnation Commission, 2006 WI App 51, 289 Wis. 2d 613, 712 N.W.2d 380, 05-1370.

32.05 Annotation Complete condemnation of a property terminates a lease attached to that property, but the parties to a lease may contract for their rights and obligations in the event of a condemnation. Condemnation does not necessarily preclude a lessor from seeking a remedy against a lessee in a breach of contract action. Wisconsin Mall Properties, LLC v. Younkers, Inc., 2006 WI 95, 293 Wis. 2d 573, 717 N.W.2d 703, 05-0323.

32.05 Annotation In satisfying its statutory obligation to make available a comparable replacement property under sub. (8) (c) and prior to being entitled to a writ of assistance, the condemnor must identify one or more properties that meet the parameters of s. 32.19 (2) (c) to serve as a comparable replacement business. A condemnor has no open-ended obligation to provide a replacement property that is acceptable to the business being relocated. City of Janesville v. CC Midwest, Inc., 2007 WI 93, 302 Wis. 2d 599, 734 N.W.2d 428, 04-0267.

32.05 Annotation When read in conjunction with sub. (7) (d), s. 59.40 (3) (c) empowers a circuit judge not only to veto the clerk’s authority to invest a condemnation award but also to direct the clerk to transfer the award from the clerk’s control into a private money market account for the benefit of the persons named in the award or to otherwise invest the funds for the benefit of those persons. HSBC Realty Credit Corp. v. City of Glendale, 2007 WI 94, 303 Wis. 2d 1, 735 N.W.2d 77, 05-1042.

32.05 Annotation Although sub. (5) allows owners to bring a wide range of cases, the necessity of a condemnation will be upheld absent a showing of fraud, bad faith, or a gross abuse of discretion. A reviewing court may find a gross abuse of discretion when there is utter disregard for the necessity of the use of the land or when the land is taken for an illegal purpose. Generally, an allegedly unsafe road design does not constitute an utter disregard for the necessity of the use of the land. Kauer v. DOT, 2010 WI App 139, 329 Wis. 2d 713, 793 N.W.2d 99, 09-1615.

32.05 Annotation Sub. (11) makes clear that a party in interest does not lose any rights by not joining in another party’s appeal of an award. Sub. (9) (a) 1. makes clear that the unit rule applies in cases in which all parties in interest have not joined in an appeal and instructs that the separate property interests shall, in cases of dispute, be resolved by a separate partition action. A party does not lose its right to bring a claim for partition by accepting payment from the Department of Transportation for relocation expenses, which are distinct from the department’s award for the fair market value of the property taken. Lamar Co. v. Country Side Restaurant, Inc., 2012 WI 46, 340 Wis. 2d 335, 814 N.W.2d 159, 10-2023.

32.05 Annotation There is no language in this section that supports the argument that the jurisdictional offer under sub. (3) must equal the appraisal on which the offer is based and no language that would prevent a condemnor from offering more than the appraised amount as part of the effort to “attempt to negotiate personally with the owner” under sub. (2a). Otterstatter v. City of Watertown, 2017 WI App 76, 378 Wis. 2d 697, 904 N.W.2d 396, 16-2000. See also Christus Lutheran Church of Appleton v. DOT, 2021 WI 30, 396 Wis. 2d 302, 956 N.W.2d 837, 18-1114.

32.05 Annotation There is no statutory provision suggesting that an appraisal cannot serve as the basis for a jurisdictional offer because it is too old. Under Schey, 52 Wis. 2d 361 (1971), an appraisal offered to support the amount of compensation at a just compensation trial after an award of damages has been recorded must be conducted on the day of taking. However, the provisions that govern activity after an award of damages do not apply to jurisdictional offers, which precede the award of damages. Otterstatter v. City of Watertown, 2017 WI App 76, 378 Wis. 2d 697, 904 N.W.2d 396, 16-2000.

32.05 Annotation The language in sub. (8) (b) is unambiguous. Written notice to vacate must be provided at least 90 days before the intended vacation date. There is no language in the statute indicating that the 90-day notice must be provided after the condemnor has acquired title to the property. Regardless of when a condemnor provides the 90-day notice, the condemnor may not apply for a writ of assistance to require an owner to vacate until after the condemnor has acquired title. Otterstatter v. City of Watertown, 2017 WI App 76, 378 Wis. 2d 697, 904 N.W.2d 396, 16-2000.

32.05 Annotation The meaning of “based” “upon” is that the appraisal must be a supporting part or fundamental ingredient of the jurisdictional offer. In this case, the appraisal discussed and considered severance damages and other items, despite not allocating compensation for those items. The Department of Transportation’s actions in re-examining and reassessing those items that were considered but not fully addressed in the appraisal did not mean the jurisdictional offer was not “based” “upon” the appraisal as required by subs. (2) (b) and (3) (e). Christus Lutheran Church of Appleton v. DOT, 2021 WI 30, 396 Wis. 2d 302, 956 N.W.2d 837, 18-1114.

32.05 Annotation The focus of sub. (2) (a) is the appraisal of “property.” Section 32.01 (2) defines “property” as including estates in lands, fixtures, and personal property directly connected with lands. Damages are not included in the definition of property. In this case, the fact that the jurisdictional offer included compensation for severance damages not found in the appraisal did not mean that the appraisal failed to satisfy sub. (2) (a). Christus Lutheran Church of Appleton v. DOT, 2021 WI 30, 396 Wis. 2d 302, 956 N.W.2d 837, 18-1114.

32.05 Annotation Sub. (5) is just one of several statutes that enable property owners to challenge the Department of Transportation when it undertakes highway construction projects affecting private property. The appropriate statute depends on the facts of the case and the nature of the challenged governmental action. Those statutes are not interchangeable, and, even if a highway construction project results in damages that are compensable under a particular statute, those damages cannot be recovered in a claim brought under the wrong statute. In this case, the property owner could not recover damages for the closure of its driveway under sub. (5) because the access rights that the owner alleged it lost were distinct from the taking described in the department’s jurisdictional offer. DEKK Property Development, LLC v. DOT, 2023 WI 30, 406 Wis. 2d 768, 988 N.W.2d 653, 20-2146.

32.05 Annotation Statutory Restrictions on the Exercise of Eminent Domain in Wisconsin: Dual Requirements of Prior Negotiation and Provision of Negotiating Materials. Plaetzer. 63 MLR 489 (1980).

32.05 Annotation Towards Success in Eminent Domain Litigation. Southwick. WBB Oct. 1973.

32.05 Annotation New Developments In Law of Eminent Domain, Condemnation and Relocation. Thiel. WBB June 1979.