GENERAL EMINENT DOMAIN
In this subchapter unless the context clearly requires otherwise:
“Person" includes the state, a county, town, village, city, school district or other municipal corporation, a board, commission, including a commission created by contract under s. 66.0301
, corporation, or housing authority created under ss. 66.1201
or redevelopment authority created under s. 66.1333
or the Wisconsin Aerospace Authority created under s. 114.61
“Property" includes estates in lands, fixtures and personal property directly connected with lands.
The rule of strict construction should be applied to a condemnor's power and to the exercise of this power. This is because the exercise of the power of eminent domain has been characterized as an extraordinary power, and the rule of strict construction is intended to benefit the owner whose property is taken against his or her will. Conversely, statutory provisions in favor of the owner, such as those which regulate the compensation to be paid to him or her, are to be afforded liberal construction. Standard Theatres, Inc. v. DOT, 118 Wis. 2d 730
, 349 N.W.2d 661
The statutes governing condemnation action procedures are in derogation of the common law and therefore are to be strictly construed. Accordingly, strict adherence to the statute is required. Likewise, engrafting onto the statute things it does not require is forbidden. City of Racine v. Bassinger, 163 Wis. 2d 1029
, 473 N.W.2d 526
(Ct. App. 1991).
Property may not be acquired by condemnation to establish or extend a recreational trail; a bicycle way, as defined in s. 340.01 (5s)
; a bicycle lane, as defined in s. 340.01 (5e)
; or a pedestrian way, as defined in s. 346.02 (8) (a)
History: 2017 a. 59
Who may condemn; purposes.
The following departments, municipalities, boards, commissions, public officers, and business entities may acquire by condemnation any real estate and personal property appurtenant thereto or interest therein which they have power to acquire and hold or transfer to the state, for the purposes specified, in case such property cannot be acquired by gift or purchase at an agreed price:
Any county, town, village, city, including villages and cities incorporated under general or special acts, school district, the department of health services, the department of corrections, the board of regents of the University of Wisconsin System, the building commission, a commission created by contract under s. 66.0301
, with the approval of the municipality in which condemnation is proposed, a commission created by contract under s. 66.0303
that is acting under s. 66.0304
, if the condemnation occurs within the boundaries of a member of the commission, or any public board or commission, for any lawful purpose, but in the case of city and village boards or commissions approval of that action is required to be granted by the governing body. A mosquito control commission, created under s. 59.70 (12)
, and a local professional football stadium district board, created under subch. IV of ch. 229
, may not acquire property by condemnation.
The governor and adjutant general for land adjacent to the Wisconsin state military reservation at Camp Douglas for the use of the Wisconsin national guard.
Any railroad corporation, any grantee of a permit to construct a dam to develop hydroelectric energy for sale to the public, any Wisconsin plank or turnpike road corporation, any drainage corporation, any interstate bridge corporation, or any corporation formed under chapter 288, laws of 1899
, for any public purpose authorized by its articles of incorporation.
Any Wisconsin telegraph or telecommunications corporation for the construction and location of its lines.
“Foreign transmission provider" means a foreign corporation that satisfies each of the following:
Any Wisconsin corporation engaged in the business of transmitting or furnishing heat, power or electric light for the public or any foreign transmission provider for the construction and location of its lines or for ponds or reservoirs or any dam, dam site, flowage rights or undeveloped water power.
Any Wisconsin corporation furnishing gas, electric light or power to the public, for additions or extensions to its plant and for the purpose of conducting tests or studies to determine the suitability of a site for the placement of a facility.
Any Wisconsin corporation formed for the improvement of any stream and driving logs therein, for the purpose of the improvement of such stream, or for ponds or reservoir purposes.
Any Wisconsin corporation organized to furnish water or light to any city, village or town or the inhabitants thereof, for the construction and maintenance of its plant.
Any Wisconsin corporation transmitting gas, oil or related products in pipelines for sale to the public directly or for sale to one or more other corporations furnishing such gas, oil or related products to the public.
Any rural electric cooperative association organized under ch. 185
which operates a rural electrification project to:
Generate, distribute or furnish at cost electric energy at retail to 500 or more members of said association in accordance with standard rules for extension of its service and facilities as provided in the bylaws of said association and whose bylaws also provide for the acceptance into membership of all applicants therefor who may reside within the territory in which such association undertakes to furnish its service, without discrimination as to such applicants; or
Generate, transmit and furnish electric energy at wholesale to 3 or more rural electric cooperative associations furnishing electric energy under the conditions set forth in par. (a)
, for the construction and location of its lines, substation or generating plants, ponds or reservoirs, any dam, dam site, flowage rights or undeveloped water power, or for additions or extension of its plant and for the purpose of conducting tests or studies to determine the suitability of a site for the placement of a facility.
Any person operating a plant which creates waste material which, if released without treatment would cause stream pollution, for the location of treatment facilities. This subsection does not apply to a person with a permit under ch. 293
or subch. III of ch. 295
Any business entity authorized to do business in Wisconsin that shall transmit oil or related products including all hydrocarbons which are in a liquid form at the temperature and pressure under which they are transported in pipelines in Wisconsin, and shall maintain terminal or product delivery facilities in Wisconsin, and shall be engaged in interstate or international commerce, subject to the approval of the public service commission upon a finding by it that the proposed real estate interests sought to be acquired are in the public interest.
The department of transportation for the acquisition of abandoned rail and utility property under s. 85.09
The department of natural resources with the approval of the appropriate standing committees of each house of the legislature as determined by the presiding officer thereof and as authorized by law, for acquisition of lands.
History: 1971 c. 100
; 1973 c. 243
; 1975 c. 68
; 1977 c. 29
; 1979 c. 34
s. 2102 (52) (b)
; 1979 c. 122
; 1979 c. 175
; 1981 c. 86
; 1983 a. 27
; 1985 a. 29
s. 3200 (51)
; 1985 a. 30
; 1985 a. 187
; 1985 a. 297
; 1987 a. 27
; 1989 a. 31
; 1993 a. 246
; 1993 a. 491
; 1995 a. 27
s. 9126 (19)
; 1995 a. 201
; 1997 a. 204
; 1999 a. 65
; 1999 a. 150
; 1999 a. 167
; 2001 a. 30
; 2005 a. 335
; 2007 a. 20
, s. 9121 (6) (a)
; 2009 a. 28
; 2011 a. 32
; 2013 a. 1
; 2015 a. 55
See s. 13.48 (16)
for limitation on condemnation authority of the building commission.
The inalienability of the power of eminent domain is a well-settled rule. A party with the right to condemn cannot lose that power through contract. The right to condemnation cannot be waived or abrogated by estoppel. Personal rights may be waivable, but public rights are not. Andrews v. Wisconsin Public Service Corporation, 2009 WI App 6
, 315 Wis. 2d 772
, 762 N.W.2d 837
When condemnation not to be exercised. 32.03(1)(1)
The general power of condemnation conferred in this subchapter does not extend to property owned by the state, a municipality, public board or commission, nor to the condemnation by a railroad, public utility or electric cooperative of the property of either a railroad, public utility or electric cooperative unless such power is specifically conferred by law, provided that property not to exceed 100 feet in width owned by or otherwise under the control or jurisdiction of a public board or commission of any city, village or town may be condemned by a railroad corporation for right-of-way or other purposes, whenever a city, village or town by ordinance consents thereto. This subchapter does not apply to the acquisition by municipalities of the property of public utilities used and useful in their business, nor to any city of the 1st class, except that every such city may conduct any condemnation proceedings either under this subchapter or, at its option, under other laws applicable to such city.
Any railroad corporation or pipeline corporation may acquire by condemnation lands or interest therein which are held and owned by another railroad corporation or pipeline corporation. In the case of a railroad corporation, no such land shall be taken so as to interfere with the main track of the railroad first established except for crossing, and in the case of a pipeline corporation no such land shall be taken except for crossing or in such manner as to interfere with or endanger railroad operations.
Any public utility corporation, or cooperative association mentioned in s. 32.02 (10)
, upon securing from the public service commission, pursuant to written application and upon due notice to all interested parties, an order determining that lands or interests therein sought to be acquired by the applicant are owned by a public utility corporation or such rural electric cooperative and are not then being used by the owner for service to the public by the public utility or to its members by such cooperative association and will not be required in the future for such purposes to an extent and within a period which will be interfered with by the appropriation of the lands or interests sought to be condemned, may acquire by condemnation such lands or interests therein. No lands, or interests therein, belonging to a public utility corporation or to any such cooperative association which is being held by such owner as a site for an electric generating plant, and no other property so owned, or any interest therein, which is used or suitable for the development of water power, shall be subject to condemnation under this subsection; except that an undeveloped water power site, belonging to any such public utility corporation or to any such cooperative association and which is within the flowage area of any other undeveloped water power site, may be condemned pursuant to this subsection, but only if, upon application to it, the public service commission, after hearing held upon notice to such owner and all parties interested, shall by order determine the necessity of taking such lands or interest therein. Such order shall be subject to review as prescribed by ch. 227
. Any condemnation of lands pursuant to this subsection shall be conducted in accordance with the procedure and requirements prescribed by ss. 32.04
If an electric utility is required to obtain a certificate of public convenience and necessity from the public service commission under s. 196.491 (3)
, no right to acquire real estate or personal property appurtenant thereto or interest therein for such project by condemnation shall accrue or exist under s. 32.02
or 32.075 (2)
until such a certificate of public convenience and necessity has been issued.
This subsection does not apply to the condemnation of a limited interest in real property or appurtenant personal property, except structures with foundations, necessary to conduct tests or studies to determine the suitability of a site for the placement of a utility facility, provided that:
Such a limited interest does not run for more than 3 years; and
Activities associated with such tests or studies will be conducted at reasonable hours with minimal disturbance, and the property will be reasonably restored to its former state, upon completion of such tests or studies.
This subsection does not prohibit an electric utility from negotiating with the owner, or one of the owners, of a property, or the representative of an owner, before the issuance of a certificate of public convenience and necessity, if the electric utility advises the owner or representative that the electric utility does not have the authority to acquire the property by condemnation until the issuance of a certificate of public convenience and necessity.
In this subsection, “blighted property" means any property that, by reason of abandonment, dilapidation, deterioration, age or obsolescence, inadequate provisions for ventilation, light, air, or sanitation, high density of population and overcrowding, faulty lot layout in relation to size, adequacy, accessibility, or usefulness, unsanitary or unsafe conditions, deterioration of site or other improvements, or the existence of conditions that endanger life or property by fire or other causes, or any combination of such factors, is detrimental to the public health, safety, or welfare. Property that consists of only one dwelling unit is not blighted property unless, in addition, at least one of the following applies:
The property is not occupied by the owner of the property, his or her spouse, or an individual related to the owner by blood, marriage, or adoption within the 4th degree of kinship under s. 990.001 (16)
The crime rate in, on, or adjacent to the property is at least 3 times the crime rate in the remainder of the municipality in which the property is located.
Property that is not blighted property may not be acquired by condemnation by an entity authorized to condemn property under s. 32.02 (1)
if the condemnor intends to convey or lease the acquired property to a private entity.
Before commencing the condemnation of property that a condemnor authorized to condemn property under s. 32.02 (1)
intends to convey or lease to a private entity, the condemnor shall make written findings and provide a copy of the findings to the owner of the property. The findings shall include all of the following:
The scope of the redevelopment project encompassing the owner's property.
A legal description of the redevelopment area that includes the owner's property.
A finding that the owner's property is blighted and the reasons for that finding.
County lands are not subject to condemnation by a town absent express statutory authority authorizing such condemnation. 62 Atty. Gen. 64.
Wisconsin's Response to Condemnation for Economic Development. Braun. Wis. Law. Sept. 2007.
Agricultural impact statement. 32.035(1)(a)
“Department" means department of agriculture, trade and consumer protection.
“Farm operation" means any activity conducted solely or primarily for the production of one or more agricultural commodities resulting from an agricultural use, as defined in s. 91.01 (2)
, for sale and home use, and customarily producing the commodities in sufficient quantity to be capable of contributing materially to the operator's support.
This section shall not apply if an environmental impact statement under s. 1.11
is prepared for the proposed project and if the department submits the information required under this section as part of such statement or if the condemnation is for an easement for the purpose of constructing or operating an electric transmission line, except a high voltage transmission line as defined in s. 196.491 (1) (f)
The condemnor shall notify the department of any project involving the actual or potential exercise of the powers of eminent domain affecting a farm operation. If the condemnor is the department of natural resources, the notice required by this subsection shall be given at the time that permission of the senate and assembly committees on natural resources is sought under s. 23.09 (2) (d)
or 27.01 (2) (a)
. To prepare an agricultural impact statement under this section, the department may require the condemnor to compile and submit information about an affected farm operation. The department shall charge the condemnor a fee approximating the actual costs of preparing the statement. The department may not publish the statement if the fee is not paid.
When an impact statement is required; permitted.
The department shall prepare an agricultural impact statement for each project, except a project under ch. 82
or a project located entirely within the boundaries of a city or village, if the project involves the actual or potential exercise of the powers of eminent domain and if any interest in more than 5 acres of any farm operation may be taken. The department may prepare an agricultural impact statement on a project located entirely within the boundaries of a city, village, or town or involving any interest in 5 or fewer acres of any farm operation if the condemnation would have a significant effect on any farm operation as a whole.
The agricultural impact statement shall include:
A list of the acreage and description of all land lost to agricultural production and all other land with reduced productive capacity, whether or not the land is taken.
The department's analyses, conclusions and recommendations concerning the agricultural impact of the project.
Preparation time; publication.
The department shall prepare the impact statement within 60 days of receiving the information requested from the condemnor under sub. (3)
. The department shall publish the statement upon receipt of the fee required under sub. (3)
The condemnor may not negotiate with an owner or make a jurisdictional offer under this subchapter until 30 days after the impact statement is published.
Upon completing the impact statement, the department shall distribute the impact statement to the following:
The senate and assembly committees on agriculture and transportation.
All local and regional units of government which have jurisdiction over the area affected by the project. The department shall request that each unit post the statement at the place normally used for public notice.
Local and regional news media in the area affected.
Any individual, group, club or committee which has demonstrated an interest and has requested receipt of such information.
NOTE: 2003 Wis. Act 214
, which affected this section, contains extensive explanatory notes.
Procedure in condemnation.
All acquisition of property in this state by condemnation, except as hereinafter provided, commenced after April 6, 1960 shall be accomplished in the following manner:
Condemnation for sewers and transportation facilities.
In this section, “mass transit facility" includes, without limitation because of enumeration, exclusive or preferential bus lanes if those lanes are limited to abandoned railroad rights-of-way or existing expressways constructed before May 17, 1978, highway control devices, bus passenger loading areas and terminal facilities, including shelters, and fringe and corridor parking facilities to serve bus and other public mass transportation passengers, together with the acquisition, construction, reconstruction and maintenance of lands and facilities for the development, improvement and use of public mass transportation systems for the transportation of passengers. This section does not apply to proceedings in 1st class cities under subch. II
. In any city, condemnation for housing under ss. 66.1201
, for urban renewal under s. 66.1333
, or for cultural arts facilities under subch. V of ch. 229
, may proceed under this section or under s. 32.06
at the option of the condemning authority. In any village, condemnation for housing under ss. 66.1201
or for urban renewal under s. 66.1333
may proceed under this section or under s. 32.06
at the option of the condemning authority. Condemnation by a local exposition district under subch. II of ch. 229
for any exposition center or exposition center facility may proceed under this section or under s. 32.06
at the option of the local exposition district. All other condemnation of property for public alleys, streets, highways, airports, spaceports, mass transit facilities, or other transportation facilities, gas or leachate extraction systems to remedy environmental pollution from a solid waste disposal facility, storm sewers and sanitary sewers, watercourses or water transmission and distribution facilities shall proceed as follows:
Except as provided under par. (b)
, a county board of supervisors or a county highway committee when so authorized by the county board of supervisors, a city council, a village board, a town board, a sewerage commission governing a metropolitan sewerage district created by ss. 200.05
, the secretary of transportation, a commission created by contract under s. 66.0301
, a joint local water authority created by contract under s. 66.0823
, a housing authority under ss. 66.1201
, a local exposition district created under subch. II of ch. 229
, a local cultural arts district created under subch. V of ch. 229
, a redevelopment authority under s. 66.1333
or a community development authority under s. 66.1335
shall make an order providing for the laying out, relocation and improvement of the public highway, street, alley, storm and sanitary sewers, watercourses, water transmission and distribution facilities, mass transit facilities, airport, or other transportation facilities, gas or leachate extraction systems to remedy environmental pollution from a solid waste disposal facility, housing project, redevelopment project, cultural arts facilities, exposition center or exposition center facilities which shall be known as the relocation order. This order shall include a map or plat showing the old and new locations and the lands and interests required. A copy of the order shall, within 20 days after its issue, be filed with the county clerk of the county wherein the lands are located or, in lieu of filing a copy of the order, a plat may be filed or recorded in accordance with s. 84.095
No relocation order is necessary under par. (a)
if the compensation, as estimated by the appraisal under sub. (2) (a)
, will be less than $1,000 in the aggregate.