If the acquisition of only part of a property would leave its owner with an uneconomic remnant, the condemnor shall offer to acquire the remnant concurrently and may acquire it by purchase or by condemnation if the owner consents.
(4) How notice of jurisdictional offer is given.
The giving of such notice is a jurisdictional requisite to a taking by condemnation. Such notice may be given by personal service in the manner of service of a circuit court summons, or it may be transmitted by certified mail. If service is by mail, service of the papers shall be deemed completed on the date of mailing and the use of mail service shall not increase the time allowed to act in answer to or in consequence of such service. If such owner or mortgagee is unknown or cannot be found there shall be published in the county wherein the property is located a class 1 notice, under ch. 985
. If such owner is a minor, or an individual adjudicated incompetent, the condemnor shall serve such notice upon the legal guardian of the minor or individual, and if there is no such guardian the condemnor shall proceed under s. 32.15
to have a special guardian appointed to represent the minor or individual in the proceeding. The reasonable fees of any special guardian as approved by the court shall be paid by the condemnor. The notice shall be called the “jurisdictional offer". The condemnor shall file a lis pendens on or within 14 days of the date of service or mailing of the jurisdictional offer or within 14 days of the date of publication if publication is necessary. The lis pendens shall include a copy of the jurisdictional offer. From the time of such filing every purchaser or encumbrancer whose conveyance or encumbrance is not recorded or filed shall be deemed a subsequent purchaser or encumbrancer and shall be bound by the terms of the jurisdictional offer and it shall not be necessary to serve other jurisdictional offers on such subsequent purchaser or encumbrancer. In the award the condemnor may name and make payment to parties who were owners or mortgagees at the time of the filing of the lis pendens unless subsequent purchasers or encumbrancers give written notice to the condemnor of their subsequently acquired interests in which event such parties shall be named in the award as their interests may appear.
(5) Court action to contest right of condemnation.
If an owner desires to contest the right of the condemnor to condemn the property described in the jurisdictional offer, for any reason other than that the amount of compensation offered is inadequate, the owner may within 40 days from the date of personal service of the jurisdictional offer or within 40 days from the date of postmark of the certified mail letter transmitting such offer, or within 40 days after date of publication of the jurisdictional offer as to persons for whom such publication was necessary and was made, commence an action in the circuit court of the county wherein the property is located, naming the condemnor as defendant. Such action shall be the only manner in which any issue other than the amount of just compensation, or other than proceedings to perfect title under ss. 32.11
, may be raised pertaining to the condemnation of the property described in the jurisdictional offer. The trial of the issues raised by the pleadings in such action shall be given precedence over all other actions in said court then not on trial. If the action is not commenced within the time limited the owner or other person having any interest in the property shall be barred from raising any such objection in any other manner. Nothing in this section shall be construed to limit in any respect the right to determine the necessity of taking as conferred by s. 32.07
nor to prevent the condemnor from proceeding with condemnation during the pendency of the action to contest the right to condemn.
(6) Acceptance of jurisdictional offer.
The owner has 20 days from the date of personal service of the jurisdictional offer or 20 days from the date of postmark of the certified mail letter transmitting such offer, or if publication of the jurisdictional offer was necessary and was made, 20 days after the date of such publication, in which to accept the jurisdictional offer unless such time is extended by mutual written consent of the condemnor and condemnee. If such offer is accepted, the transfer of title shall be accomplished within 60 days after acceptance including payment of the consideration stipulated in such offer. If the jurisdictional offer is rejected in writing by all of the owners of record the condemnor may proceed to make an award forthwith. At any time prior to acceptance of the jurisdictional offer by the condemnee the same may be withdrawn by the condemnor.
(7) Award of compensation.
If the owner has not accepted the jurisdictional offer within the periods limited in sub. (6)
or fails to consummate an acceptance as provided therein, the condemnor may make an award of damages in the manner and sequence of acts as follows:
The award shall be in writing. Except as provided in sub. (1) (b)
, the award shall state that it is made pursuant to relocation order of (name of commission, authority, board or council having jurisdiction to make the improvement) No. .... dated .... filed in the office of the County Clerk, County of ...., or pursuant to transportation project plat no. .... dated .... filed or recorded in the office of register of deeds, .... County. If a relocation order is not required under sub. (1) (b)
, the award shall name the condemnor. It shall name all persons having an interest of record in the property taken and may name the other persons. It shall describe such property by legal description, or by the parcel number shown on a plat filed or recorded under s. 84.095
, and state the interest therein sought to be condemned and the date when actual occupancy of the property condemned will be taken by condemnor. The award shall also state the compensation for the taking which shall be an amount at least equal to the amount of the jurisdictional offer. The award shall state that the condemnor has complied with all jurisdictional requirements. An amended award for the purpose of correcting errors wherein the award as recorded differs from the jurisdictional offer may be made, served and recorded as provided by this section.
Copy of such award shall be served on or mailed by certified mail to all persons named therein. If any such person cannot be found or the person's address is unknown, the award shall be published in the county wherein the property is situated as a class 3 notice, under ch. 985
, and completed publication as shown by affidavit shall constitute proper service. Such award shall be known as the “basic award".
When service of the award has been completed, and after payment of the award as provided in par. (d)
, the award shall be recorded in the office of the register of deeds of the county wherein the property is located. Thereupon title in fee simple to the property described in the award, or the lesser right in property acquired by the award shall vest in the condemnor as of the time of recording. The date of such recording is the “date of evaluation" and also the “date of taking".
On or before said date of taking, a check, naming the parties in interest as payees, for the amount of the award less outstanding delinquent tax liens, proportionately allocated as in division in redemption under ss. 74.51
when necessary and less prorated taxes of the same year, if any, likewise proportionately allocated when necessary against the property taken, shall at the option of the condemnor be mailed by certified mail to the owner or one of the owners of record or be deposited with the clerk of the circuit court of the county for the benefit of the persons named in the award. The clerk shall give notice thereof by certified mail to such parties. The persons entitled thereto may receive their proper share of the award by petition to and order of the circuit court of the county. The petition shall be filed with the clerk of the court without fee.
(8) Occupancy; writ of assistance; waste. 32.05(8)(b)
No person occupying real property may be required to move from a dwelling or move his or her business or farm without at least 90 days' written notice of the intended vacation date from the condemnor. The displaced person shall have rent-free occupancy of the acquired property for a period of 30 days, commencing with the next 1st or 15th day of the month after title vests in the condemnor, whichever is sooner. Any person occupying the property after the date that title vests in the condemnor is liable to the condemnor for all waste committed or allowed by the occupant on the lands condemned during the occupancy. The condemnor has the right to possession when the persons who occupied the acquired property vacate, or hold over beyond the vacation date established by the condemnor, whichever is sooner, except as provided under par. (c)
. If the condemnor is denied the right of possession, the condemnor may, upon 48 hours' notice to the occupant, apply to the circuit court where the property is located for a writ of assistance to be put in possession. The circuit court shall grant the writ of assistance if all jurisdictional requirements have been complied with, if the award has been paid or tendered as required and if the condemnor has made a comparable replacement property available to the occupants, except as provided under par. (c)
The condemnor may not require the persons who occupied the premises on the date that title vested in the condemnor to vacate until a comparable replacement property is made available. This paragraph does not apply to any person who waives his or her right to receive relocation benefits or services under s. 32.197
or who is not a displaced person, as defined under s. 32.19 (2) (e)
, unless the acquired property is part of a program or project receiving federal financial assistance.
(9) Appeal from award by owner or other party in interest. 32.05(9)(a)(a)
Any party having an interest in the property condemned may, within 2 years after the date of taking, appeal from the award, except as limited by this subsection by applying to the judge of the circuit court for the county wherein the property is located for assignment to a commission of county condemnation commissioners as provided in s. 32.08
, except that if the condemning authority is a housing authority organized under ss. 66.1201
, a redevelopment authority organized under s. 66.1333
or a community development authority organized under s. 66.1335
, the appeals may be initiated by filing with the condemning authority a letter requesting that the issue of the amount of the compensation be determined by the condemnation commission. The condemning authority shall, upon receipt of the letter, apply to the judge of the circuit court for the county wherein the property is located for assignment to a commission of county condemnation commissioners as provided in s. 32.08
. This application shall contain a description of the property condemned and the names and last-known addresses of all parties in interest but shall not disclose the amount of the jurisdictional offer nor the amount of the basic award. Violation of this prohibition shall nullify the application. Notice of the application shall be given to the clerk of the court and to all other persons other than the applicant who were parties to the award. The notice may be given by certified mail or personal service. Upon proof of the service the judge shall forthwith make assignment. Where one party in interest has appealed from the award, no other party in interest who has been served with a notice of the appeal may take a separate appeal, but may join in the appeal by serving notice upon the condemnor and the appellant of the party's election to do so. The notice shall be given by certified mail or personal service within 10 days after receipt of notice of the appeal and shall be filed with the clerk of the court. Upon failure to give and file the notice all other parties of interest shall be deemed not to have appealed. The result of the appeal shall not affect parties who have not joined in the appeal as provided in this paragraph. In cases involving more than one party in interest with a right to appeal, the first of the parties filing an appeal under this subsection or under sub. (11)
shall determine whether the appeal shall be under this subsection or under sub. (11)
. No party in interest may file an appeal under this subsection if another party in interest in the same lands has filed a prior appeal complying with the requirements of sub. (11)
. Thereafter the procedure shall be as prescribed in s. 32.08
. In cases involving multiple ownership or interests in lands taken the following rules shall also apply:
Where all parties having an interest in the property taken do not join in an appeal, such fact shall not change the requirement that a finding of fair market value of the entire property taken and damages, if any, to the entire property taken, shall be made in determining compensation. Determination of the separate interests of parties having an interest in property taken shall, in cases of dispute, be resolved by a separate partition action as set forth herein.
In cases where the amount of the award appealed from is increased on appeal, such amount shall be paid by the condemnor making tender of the amount to one of the appellant owners or appellant parties of interest in the same manner governing the tender of a basic award. In the event that a determination on appeal reduces the amount of the appealed award, those parties who joined in the appeal shall be liable, jointly and severally, to the condemning authority.
When the owners or parties having an interest in land taken cannot agree on the division of an award, any of such owners or parties of interest may petition the circuit court for the county wherein the property is located for partition of the award moneys as provided in s. 820.01
. When the tender of an award is refused, the condemning authority may pay the award to the clerk of the circuit court for the county wherein the property is located and no interest shall accrue against the condemning authority for moneys so paid.
If the commission's award exceeds the basic award the owner shall recover the excess plus interest thereon until payment from the date of taking less a period which is 14 days after the date of filing the commission's award. If the commission's award is less than the basic award, the condemnor shall recover the difference with interest until payment from the date of taking.
All sums due under this subsection shall be paid within 70 days after date of filing of the commission's award unless within such time an appeal is taken to the circuit court. In the event such appeal is later dismissed before trial such payment shall be made within 60 days after the dismissal date.
In the event the award of the county condemnation commissioners is lower than the basic award and tender of the basic award has been accepted by an owner, the condemnor shall have a lien against such owner for the amount of the difference. The lien shall give the name and address of the owner or owners, refer to the basic award and the award on appeal and state the difference in amounts. The lien may be recorded in the office of the register of deeds and when so recorded shall attach to all property of the owner presently owned or subsequently acquired in any county where such lien is recorded. Such lien shall remain in force with interest until satisfied or until it is set aside by a judgment of the circuit court in an action pursuant to sub. (10)
(10) Appeal from commission's award to circuit court. 32.05(10)(a)(a)
Within 60 days after the date of filing of the commission's award, any party to the proceeding before the commission may appeal to the circuit court of the county wherein the property is located. Notice of such appeal shall be given to the clerk of the circuit court and to all persons other than the appellant who were parties to the proceeding before the commissioners. Notice of appeal may be given by certified mail or by personal service. The clerk shall thereupon enter the appeal as an action pending in said court with the condemnee as plaintiff and the condemnor as defendant. It shall thereupon proceed as an action in said court subject to all the provisions of law relating to actions brought therein and shall have precedence over all actions not then on trial. The sole issues to be tried shall be questions of title, if any, under ss. 32.11
and the amount of just compensation to be paid by condemnor. It shall be tried by jury unless waived by both plaintiff and defendant. Neither the amount of the jurisdictional offer, the basic award, nor the award made by the commission shall be disclosed to the jury during such trial.
The court shall enter judgment for the amount found to be due after giving effect to any amount paid by reason of a prior award. The judgment shall include legal interest on the amount so found due from the date of taking if judgment is for the condemnor, and from 14 days after the date of taking if judgment is for the condemnee.
All moneys due under this subsection shall be paid within 60 days after entry of judgment unless within such period an appeal is taken by any party to the court of appeals.
(11) Waiver of hearing before commission; appeal to circuit court and jury.
The owner of any interest in the property condemned named in the basic award may elect to waive the appeal procedure specified in sub. (9)
and instead, within 2 years after the date of taking, appeal to the circuit court of the county wherein the property is located. The notice of appeal shall be served as provided in sub. (9) (a)
. Filing of the notice of appeal shall constitute such waiver. The clerk shall thereupon enter the appeal as an action pending in said court with the condemnee as plaintiff and the condemnor as defendant. It shall proceed as an action in said court subject to all the provisions of law relating to actions originally brought therein and shall have precedence over all other actions not then on trial. The sole issues to be tried shall be questions of title, if any, under ss. 32.11
and the amount of just compensation to be paid by condemnor. It shall be tried by jury unless waived by both plaintiff and defendant. The amount of the jurisdictional offer or basic award shall not be disclosed to the jury during such trial. Where one party in interest has appealed from the award, no other party in interest who has been served with notice of such appeal may take a separate appeal but may join in the appeal by serving notice upon the condemnor and the appellant of that party's election to do so. Such notice shall be given by certified mail or personal service within 10 days after receipt of notice of the appeal and shall be filed with the clerk of court. Upon failure to give such notice such parties shall be deemed not to have appealed. The appeal shall not affect parties who have not joined in the appeal as herein provided. In cases involving more than one party in interest with a right to appeal, the first of such parties filing an appeal under sub. (9)
or under this subsection shall determine whether such appeal shall be under sub. (9)
or directly to the circuit court as here provided. No party in interest may file an appeal under this subsection if another party in interest in the same lands has filed a prior appeal complying with the requirements of sub. (9)
. In cases involving multiple ownership or interests in lands taken the provisions of sub. (9) (a) 1.
If the jury verdict as approved by the court does not exceed the basic award, the condemnor shall have judgment against the appellant for the difference between the jury verdict and the amount of the basic award, plus interest on the amount of such difference from the date of taking.
If the jury verdict as approved by the court exceeds the basic award, the appellant shall have judgment for the amount of such excess plus legal interest thereon to date of payment in full from that date which is 14 days after the date of taking.
All moneys payable under this subsection shall be paid within 60 days after entry of judgment unless within such period an appeal is taken to the court of appeals.
(12) Effect of determination of compensation by the court where jury waived.
If the action is tried by the court upon waiver of a jury the determination of the amount of damages by the court shall be considered in lieu of the words “jury verdict as approved by the court" where such language occurs in this section.
History: 1971 c. 244
; 1973 c. 244
; Sup. Ct. Order, 67 Wis. 2d 585, 773 (1975); 1975 c. 218
; 1977 c. 29
; 1977 c. 418
, 924 (8m)
; 1977 c. 438
; 1979 c. 310
; 1981 c. 282
; 1981 c. 390
; 1983 a. 27
; 1983 a. 219
; 1983 a. 236
; 1983 a. 249
; 1985 a. 29
s. 3200 (51)
; 1985 a. 135
; 1987 a. 378
; 1989 a. 31
; 1991 a. 32
; 1993 a. 246
; 1995 a. 417
; 1997 a. 184
; 1999 a. 32
; 1999 a. 150
; 1999 a. 186
; 2003 a. 214
; 2005 a. 335
; 2009 a. 28
; 2011 a. 32
; 2013 a. 168
; 2015 a. 196
NOTE: 2003 Wis. Act 214
, which affected this section, contains extensive explanatory notes.
If a notice of appeal from a condemnation award is not served on the condemnor, the appeal is not perfected. In making an assignment to condemnation commissioners, a judge is acting in an administrative capacity. State ex rel. Milwaukee County Expressway Commission v. Spenner, 51 Wis. 2d 138
, 186 N.W.2d 298
When the plaintiffs sold 2 parcels of land but reserved a strip between them for street purposes and the state then condemned the strip for a street, the taking was total and no special benefits to the land already sold could be considered. Renk v. State, 52 Wis. 2d 539
, 191 N.W.2d 4
When the record owner of property is deceased, the jurisdictional offer may properly be served on the heirs. Any objection may be raised only by action under sub. (5). A motion to quash the proceeding is not sufficient. Area Board of Vocational, Technical & Adult Education District #2 v. Saltz, 57 Wis. 2d 524
, 204 N.W.2d 909
Sub. (11) (c) does not govern the time within which an appeal may be taken, but rather sets forth the time within which a party seeking to withhold payment pending the outcome of the appeal must file its appeal. Weiland v. DOT, 62 Wis. 2d 456
, 215 N.W.2d 455
The sub. (10) (a) requirement of service of a notice of appeal by personal service or by certified mail is not met by service through regular mail. Big Valley Farms, Inc. v. Public Service Corp. 66 Wis. 2d 620
, 225 N.W.2d 488
Scale drawings of a proposed sewer line as it traversed the condemnee's property was sufficient to comply with sub. (1). Ingalls v. Village of Walworth, 66 Wis. 2d 773
, 226 N.W.2d 201
A condemnor appealing under sub. (10) has no right to abandon the appeal over the condemnee's objection if the time for the condemnee to appeal has expired. Huth v. Public Service Corp. 82 Wis. 2d 102
, 260 N.W.2d 676
The valuation of a financially troubled mass transit public utility in a condemnation take-over by a governmental unit is discussed. Sub. (11) (b) requires the payment of continuous simple interest at the legal rate of 5 percent from 14 days after the date of the taking until the date of payment. Milwaukee & Suburban Transport Corp. v. Milwaukee County, 82 Wis. 2d 420
, 263 N.W.2d 503
If an action under sub. (5) is untimely, a court must, on its own motion, dismiss for lack of subject-matter jurisdiction. Achtor v. Pewaukee Lake Sanitary District 88 Wis. 2d 658
, 277 N.W.2d 778
A court had no jurisdiction over a party to an appeal when service under sub. (10) (a) was by first class mail. 519 Corp. v. DOT, 92 Wis. 2d 276
, 284 N.W.2d 643
Sales of components comparable to components of a unitary economic entity were admissible to prove the value of the entity. Income evidence was properly excluded. Leathem Smith Lodge, Inc. v. State, 94 Wis. 2d 406
, 288 N.W.2d 808
In the absence of special circumstances, giving notice of “appeal" under sub. (10) (a) to a party's attorney was not sufficient notice to the party. Time computations under sub. (10) (a) and s. 32.06 (10) are controlled by s. 801.15 (1), not s. 990.001 (4). In the Matter of Wisconsin Electric Power Co. 110 Wis. 2d 649
, 329 N.W.2d 186
The market value of a unique property that cannot be sold for near its value to its owner may be determined by the cost approach; replacement cost minus depreciation. Milwaukee Rescue Mission v. Milwaukee Redevelopment Authority, 161 Wis. 2d 472
, 468 N.W.2d 663
In a review under sub. (11), the jury was not limited to the ultimate opinion of expert appraisers in setting value through the cost approach but was entitled to consider a contractor's testimony of replacement cost. Milwaukee Rescue Mission v. Milwaukee Redevelopment Authority, 161 Wis. 2d 472
, 468 N.W.2d 663
Service of an appeal under sub. (9) must be made within the time prescribed under s. 801.02 (1). City of LaCrosse v. Shiftar Bros. 162 Wis. 2d 556
, 469 N.W.2d 915
(Ct. App. 1991).
One of the conditions precedent for the issuance to the condemnor of a writ of assistance under sub. (8) is that the displaced person must have comparable replacement property made available to the extent required by ss. 32.19 to 32.27. No substantive right is created by sub. (8). City of Racine v. Bassinger, 163 Wis. 2d 1029
, 473 N.W.2d 526
(Ct. App. 1991).
The removal, in eminent domain proceedings, of billboards not in conformity with s. 84.30 is subject to the just compensation provisions of s. 84.30 (6). Vivid, Inc. v. Fiedler, 182 Wis. 2d 71
, 512 N.W.2d 771
A purchase agreement under sub. (2a) is subject to the provisions of ch. 32; failure to refer to the provisions of ch. 32 is not a waiver. Sub. (11) (a) applies to all awards including negotiated awards. Dorschner v. DOT, 183 Wis. 2d 236
, 515 N.W.2d 311
(Ct. App. 1994).
Comparable sales occurring after the taking may be considered by a court, but may be found inadmissible as too remote. Postjudgment interest under sub. (10) (b) is determined under s. 815.05 (8) while interest under sub. (11) (b) is at the statutory rate. Calaway v. Brown County, 202 Wis. 2d 736
, 553 N.W.2d 809
(Ct. App. 1996), 95-2337
After the DOT commences condemnation proceedings under this section, sovereign immunity is fully waived. The question of whether the cost of the condemnee's appraisal was reasonable and, therefore, subject to payment by the DOT under sub. (2) (b) is not for the DOT to unilaterally determine; it is a question of fact for the court. Miesen v. DOT, 226 Wis. 2d 298
, 594 N.W.2d 821
(Ct. App. 1999), 98-3093
Service on the state through the attorney general, rather than the department of transportation, was sufficient service under sub. (9). DOT v. Peterson, 226 Wis. 2d 623
, 594 N.W.2d 765
When through inadvertent error the award of damages was attached to the notice of application under sub. (9), the award was not a part of the application, and it was error to declare the application a nullity and to withdraw the assignment of the application from the county condemnation committee. Schoenhofen v. DOT, 231 Wis. 2d 508
, 605 N.W.2d 249
(Ct. App. 1999), 99-0629
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
Consistent with Peterson
, 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
Taking jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a given part 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
Section 893.80 (1), 2001 Stats., [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
“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 DOT before filing suit may pursue an action contesting the condemnation. TJF Nominee Trust v. DOT, 2001 WI App 116
, 244 Wis. 2d 242
, 629 N.W.2d 57
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 of the City of Madison, 2002 WI App 200
, 257 Wis. 2d 377
, 651 N.W.2d 1
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 of the City of Madison, 2002 WI App 200
, 257 Wis. 2d 377
, 651 N.W.2d 1
When the condemnee's counsel instructed the department 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
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 v. DOT, 2003 WI 95
, 263 Wis. 2d 649
, 665 N.W.2d 198
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
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. The Landings LLC v. The City of Waupaca, 2005 WI App 181
, 287 Wis. 2d 120
, 703 N.W.2d 689
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
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
Section 801.02 (1) serves to extend by 90 days the 2-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
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
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
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 Corporation v. City of Glendale, 2007 WI 94
, 303 Wis. 2d 1
, 734 N.W.2d 874
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 where there is utter disregard for the necessity of 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. Department of Transportation, 2010 WI App 139
, 329 Wis. 2d 713
, 793 N.W.2d 99
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 DOT for relocation expenses, which are distinct from the DOT's award for the fair market value of the property taken. The Lamar Company, LLC v. Country Side Restaurant, Inc. 2012 WI 46
, 340 Wis. 2d 335
, 814 N.W.2d 159
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
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 Enterprises, Inc. v. State
, 52 Wis. 2d 361
, 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
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
Under sub. (2) (a), an appraisal must value all property proposed to be acquired and must form a fundamental ingredient or supporting part of a jurisdictional offer under sub. (3). The appraisal in this case omitted a significant item of damages that was subsequently included in the jurisdictional offer, namely, severance damages. The appraisal failed to form a supporting part or fundamental ingredient of the jurisdictional offer because it did not value a statutorily enumerated item of just compensation to which the condemnee was entitled. Accordingly, the appraisal failed to value all property proposed to be acquired, contrary to sub. (2) (a). Absent a negotiated agreement with the property owner, if the Department of Transportation, based solely upon its independent review of an appraisal, believes additional statutory items of just compensation warrant inclusion in the jurisdictional offer, the department must obtain a new appraisal that substantiates that belief and provides an opinion as to the value of those interests. Christus Lutheran Church of Appleton v. DOT, 2019 WI App 67
, 389 Wis. 2d 600
, 937 N.W.2d 63
Statutory restrictions on the exercise of eminent domain in Wisconsin: Dual requirements of prior negotiation and provision of negotiating materials. 63 MLR 489 (1980).
Towards Success in Eminent Domain Litigation. Southwick. WBB Oct. 1973.
New Developments In Law of Eminent Domain, Condemnation and Relocation. Thiel. WBB June 1979.
Condemnation procedure in other than transportation matters.
The procedure in condemnation in all matters except acquisitions under s. 32.05
, acquisitions under subch. II
, acquisitions under subch. II of ch. 157
, and acquisitions under ch. 197
, shall be as follows:
(1) Determination of necessity of taking.
The necessity of the taking shall be determined as provided in s. 32.07
The condemnor shall cause at least one (or more in the condemnor's discretion) appraisal to be made of the property proposed to be acquired. In making any such appraisal the appraiser shall confer with the owner or one of the owners, or the personal representative of the owner or one of the owners, if reasonably possible.
The condemnor shall provide the owner with a full narrative appraisal upon which the jurisdictional offer is based and a copy of any appraisal made under par. (a)
and at the same time shall inform the owner of his or her right to obtain an appraisal under this paragraph. The owner may obtain an appraisal by a qualified appraiser of all property proposed to be acquired, and submit the reasonable costs of the appraisal to the condemnor for payment. The owner shall submit a full narrative appraisal to the condemnor within 60 days after the owner receives the condemnor's appraisal. If the owner does not accept a negotiated offer under sub. (2a)
or the jurisdictional offer under sub. (3)
, the owner may use an appraisal prepared under this paragraph in any subsequent appeal.
(2a) Agreed price.
Before making the jurisdictional offer under sub. (3)
the condemnor shall attempt to negotiate personally with the owner or one of the owners or his or her representative of the property sought to be taken for the purchase of the same. In such negotiation the condemnor shall consider the owner's appraisal under sub. (2) (b)
and may contract to pay the items of compensation enumerated in ss. 32.09
where shown to exist. Before attempting to negotiate under this subsection, the condemnor shall provide the owner or his or her representative with copies of applicable pamphlets prepared under s. 32.26 (6)
. When negotiating under this subsection, the condemnor shall provide the owner or his or her representative with the names of at least 10 neighboring landowners to whom offers are being made, or a list of all offerees if less than 10 owners are affected, together with a map showing all property affected by the project. Upon request by an owner or his or her representative, the condemnor shall provide the name of the owner of any other property which may be taken for the project. The owner or his or her representative shall also have the right, upon request, to examine any maps in the possession of the condemnor showing property affected by the project. The owner or his or her representative may obtain copies of such maps by tendering the reasonable and necessary costs of preparing copies. The condemnor shall record any conveyance by or on behalf of the owner of the property to the condemnor executed as a result of negotiations under this subsection with the register of deeds of the county in which the property is located. The condemnor shall also record a certificate of compensation stating the identity of all persons having an interest of record in the property immediately prior to its conveyance, the legal description of the property, the nature of the interest acquired and the compensation for such acquisition. The condemnor shall serve upon or mail by certified mail to all persons named therein a copy of the statement and a notice of the right to appeal the amount of compensation under this subsection. Any person named in the certificate may, within 6 months after the date of its recording, appeal from the amount of compensation therein stated by filing a petition with the judge of the circuit court of the county in which the property is located for proceedings to determine the amount of just compensation. Notice of such petition shall be given to all persons having an interest of record in such property. The judge shall forthwith assign the matter to the chairperson of the county condemnation commissioners for hearing under sub. (8)
. The procedures prescribed under subs. (9) (a)
and chs. 808
shall govern such appeals. The date the conveyance is recorded shall be treated as the date of taking and the date of evaluation.
(3) Making jurisdictional offer.
The condemnor shall make and serve the jurisdictional offer and notice in the form (insofar as applicable) and manner of service provided in s. 32.05 (3)
, but lis pendens shall not be filed until date of petition under sub. (7)
. The offer shall state that if it is not accepted within 20 days, the condemnor may petition for a determination of just compensation by county condemnation commissioners and that either party may appeal from the award of the county condemnation commissioners to the circuit court within 60 days as provided in sub. (10)