A constructive taking occurs when government regulation renders a property useless for all practical purposes. Taking jurisprudence does not allow dividing the property into segments and determining whether rights in a particular segment have been abrogated. Zealy v. City of Waukesha, 201 Wis. 2d 365
, 548 N.W.2d 528
This section does not govern inverse condemnation proceedings seeking just compensation for a temporary taking of land for public use. Such takings claims are based directly on Article I, section 13, of the constitution. Anderson v. Village of Little Chute, 201 Wis. 2d 467
, 549 N.W.2d 561
(Ct. App. 1996), 95-1677
The reversal of an agency decision by a court does not convert an action that might otherwise have been actionable as a taking into one that is not. Once there has been sufficient deprivation of the use of property there has been a taking even though the property owner regains full use of the land through rescission of the restriction. Eberle v. Dane County Board of Adjustment, 227 Wis. 2d 609
, 595 N.W.2d 730
When a regulatory taking claim is made, the plaintiff must prove that: 1) a government restriction or regulation is excessive and therefore constitutes a taking; and 2) any proffered compensation is unjust. Eberle v. Dane County Board of Adjustment, 227 Wis. 2d 609
, 595 N.W.2d 730
A claimant who asserted ownership of condemned land, compensation for which was awarded to another as owner with the claimant having had full notice of the proceedings, could not institute an inverse condemnation action because the municipality had exercised its power of condemnation. Koskey v. Town of Bergen, 2000 WI App 140
, 237 Wis. 2d 284
, 614 N.W.2d 845
The state holds title to the waters of the state and any private property interest in constructing facilities in those waters is encumbered by the public trust doctrine. A riparian owner does not have a right to unfettered use of the bed of the waterway or to the issuance of a permit to construct a structure, which weighs against a finding that a riparian owner suffered a compensable regulatory taking as the result of a permit denial. R.W. Docks & Slips v. State, 2001 WI 73
, 244 Wis. 2d 497
, 628 N.W.2d 781
Taking jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a given piece 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
In order to state a claim of inverse condemnation under this section, the facts alleged must show either that there was an actual physical occupation by the condemning authority or that a government-imposed restriction deprived the owner of all, or substantially all, of the beneficial use of his or her property. E-L Enterprises, Inc. v. Milwaukee Metropolitan Sewerage District, 2010 WI 58
, 326 Wis. 2d 82
, 785 N.W.2d 409
A taking occurs in airplane overflight cases when government action results in aircraft flying over a landowner's property low enough and with sufficient frequency to have a direct and immediate effect on the use and enjoyment of the property. The government airport operator bears responsibility if aircraft are regularly deviating from FAA flight patterns and those deviations result in invasions of the superadjacent airspace of neighboring property owners with adverse effects on their property. Placing the burden on property owners to seek enforcement against individual airlines or pilots would effectively deprive the owners of a remedy for such takings. Brenner v. City of New Richmond, 2012 WI 98
, 343 Wis. 2d 320
, 816 N.W.2d 291
In order to constitute a taking, the property loss at issue must be the result of government action. The court is not free to disregard this plainly stated rule and search for inaction that might be considered to be the functional equivalent of action, as might be at issue for example in the negligence context. Fromm v. Village of Lake Delton, 2014 WI App 47
, 354 Wis. 2d 30
, 847 N.W.2d 845
Section 84.25 (3) authorizes DOT to change access to a highway designated as controlled access in whatever way it deems “necessary or desirable." In controlled-access highway cases, abutting property owners are precluded from compensation for a change in access under s. 32.09 (6) (b) as a matter of law. However, exercises of the police power cannot deprive the owner of all or substantially all beneficial use of the property without compensation. If the replacement access is so circuitous as to amount to a regulatory taking of the property, compensation is due and the abutting property owner may bring an inverse condemnation claim under this section. Provision of some access preserves the abutting property owner's controlled right of access to the property. Reasonableness is not the standard to apply to determine if compensation is due under s. 32.09 (6) (b). Hoffer Properties, LLC v. State of Wisconsin, 2016 WI 5
, 366 Wis. 2d 372
, 874 N.W.2d 533
It has long been settled that constitutional takings provisions interpose no barrier to the exercise of the police power of the state. Injury to property resulting from the exercise of the police power of the state does not necessitate compensation. A state acts under its police power when it regulates in the interest of public safety, convenience, and the general welfare of the public. The protection of public rights may be accomplished by the exercise of the police power unless the damage to the property owner is too great and amounts to a confiscation. Claims for such “regulatory takings" must be brought under this section. Hoffer Properties, LLC v. State of Wisconsin, 2016 WI 5
, 366 Wis. 2d 372
, 874 N.W.2d 533
Trial of title.
If any defect of title to or encumbrance upon any parcel of land is suggested upon any appeal, or if any person petitions the court in which an appeal is pending setting up a claim adverse to the title set out in said petition to said premises and to the money or any part thereof to be paid as compensation for the property so taken, the court shall thereupon determine the question so presented. Judgment shall be entered on such determination, with costs to the prevailing party. An appeal from such judgment may be taken as from a judgment in an action.
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. Racine Redevelopment Authority, 120 Wis. 2d 13
, 353 N.W.2d 812
(Ct. App. 1984).
Proceedings to perfect title. 32.12(1)(1)
If any person having the power to acquire property by condemnation enters into the possession of any property and is using the property for a purpose for which condemnation proceedings might be instituted but has not acquired title to the property, or if the title is defective, or if not in possession, has petitioned the circuit court as provided by s. 32.06 (7)
and for an order as authorized under this section either at the time of filing the petition for condemnation or thereafter, and the necessity for taking has been determined as authorized by law, the person may proceed to acquire or perfect the title as provided in this subchapter or be authorized to enter into possession as provided in this section. At any stage of the proceedings the court in which they are pending may authorize the person, if in possession, to continue in possession, and if not in possession to take possession and have and use the lands during the pendency of the proceedings and may stay all actions or proceedings against the person on account thereof on the paying in court of a sufficient sum or the giving of such securities as the court may direct to pay the compensation therefor when finally ascertained. The “date of taking" in proceedings under this section is the date on which the security required by the order for such security is approved and evidence thereof is filed with the clerk of court. In every such case the party interested in the property may institute and conduct, at the expense of the person, the proceedings to a conclusion if the person delays or omits to prosecute the same.
No injunction to restrain the possession or use of lands subject to proceedings under sub. (1)
by the party interested in the property or the operation thereon of any plant, line, railroad or other structure, shall be granted until compensation therefor has been fixed and determined.
In case such person or the person through or under whom that person claims title has paid to the owner of such lands or to any former owner thereof, or to any other person having any valid mortgage or other lien thereon, or to any owner, lien holder, mortgagee or other person entitled to any award or part of any award in satisfaction of the whole or any part of such award to which such owner, lien holder, mortgagee or other person may become entitled upon completion of such condemnation proceedings in the manner authorized by this subchapter, such sum with interest thereon from the date of such payment at the rate of 5 percent per year shall be deducted from the award made by said commissioners to such owners or other person.
In case there is a dispute in relation to the payment of any sum as aforesaid or the amount or date of any payment that may have been made, the court or judge thereof shall at the request of any party, award an issue which shall be tried in the same manner as issues of fact in said court and an appeal from the judgment thereon may be taken in the same manner as from any judgment.
Proceedings when land mortgaged.
Whenever any person has acquired title to any property for which it could institute condemnation proceedings and said property is subject to any mortgage or other lien and proceedings have been afterwards commenced by the holders of any such mortgage or lien to enforce the same, the court in which such proceedings are pending may on due notice appoint 3 commissioners from among the county commissioners created by s. 32.08
to appraise and value said property in the manner prescribed in this subchapter as of the time when such person acquired title. Such appraisal shall be exclusive of the improvements made by that person or that person's predecessors. Said appraisal, with interest, when confirmed by said court shall stand as the maximum amount of the encumbrance chargeable to the property so taken and judgment shall be rendered according to equity for an amount not exceeding such appraisal, with interest, against such person and may be enforced as in other cases. On the payment of such amount such person shall hold said property free and discharged from said mortgage or lien. An appeal may be taken from the award of such commission by the plaintiff and tried and determined as an appeal from the county condemnation commissioners under this subchapter and the action to enforce such mortgage or lien shall in the meantime be stayed.
History: 1983 a. 236
; 1991 a. 316
The court or judge may at any time permit amendments to be made to a petition filed pursuant to s. 32.06
, amend any defect or informality in any of the proceedings authorized by this subchapter and may cause any parties to be added and direct such notice to be given to any party of interest as it deems proper.
History: 1983 a. 236
How title in trustee acquired.
In case any title or interest in real estate lawfully required by any person having the power of condemnation is vested in any trustee not authorized to sell, release and convey the same or in any minor or person adjudged mentally incompetent, the circuit court may in a summary proceeding authorize and empower such trustee or the general guardian of such minor or person adjudged mentally incompetent to sell and convey the same for the purposes required on such terms as may be just. If such minor or person adjudged mentally incompetent has no general guardian, the court may appoint a special guardian for such sale, release or conveyance. The court may require from such trustee, or general or special guardian, such security as it deems proper before any conveyance or release authorized in this section is executed. The terms of the same shall be reported to the court on oath. If the court is satisfied that such terms are just to the party interested in such real estate, it shall confirm the report and direct the conveyance or release to be executed. Such conveyance or release shall have the same effect as if executed by one having legal power to sell and convey the land.
History: 1977 c. 83
Abandonment of easements for public use.
An easement for public use acquired by gift or purchase or by condemnation under this subchapter shall not be deemed abandoned on the grounds of nonuser thereof for any period less than that prescribed in the applicable statutes of limitations in ch. 893
. Nothing contained in this section shall be presumed to adversely affect any highway right possessed by the state or any county or municipality thereof.
History: 1983 a. 236
General provisions. 32.17(1)(1)
Where power of condemnation is given to a state officer the title acquired shall be in the name of the state. Payments of the costs and expenses of such condemnation shall be paid from the appropriation covering the purposes for which the property is acquired.
Any condemnation proceedings authorized under any local or special law of this state, except those applicable to cities of the 1st class, shall be conducted under the procedure provided in this subchapter.
Where disbursements and costs, including expert witness fees and reasonable actual attorney fees in case of abandonment of proceedings by the condemnor are recoverable from a condemnor under this subchapter, they shall be recoverable from the state or any of its agencies when the state or such agency is the condemnor.
1983 s. 236 s. 12; 1993 a. 490
Damage caused by change of grade of street or highway where no land is taken; claim; right of action.
Where a street or highway improvement project undertaken by the department of transportation, a county, city, town or village, causes a change of the grade of such street or highway in cases where such grade was not previously fixed by city, village or town ordinance, but does not require a taking of any abutting lands, the owner of such lands at the date of such change of grade may file with the department of transportation in the case of state trunk highways, a county in the case of county highways or the city, town or village, causing such change of grade to be effected, whichever has jurisdiction over the street or highway, a claim for any damages to said lands occasioned by such change of grade. Special benefits may be offset against any claims for damages under this section. Such claim shall be filed within 90 days following the completion of said project; if allowed, it shall be paid in the case of the department of transportation, out of the state highway funds, otherwise, out of the funds of the respective county, city, village or town against which the claim is made as the case may be. If it is not allowed within 90 days after such date of filing it shall be deemed denied. Thereupon such owner may within 90 days following such denial commence an action against the department of transportation, the city, county, village or town as the case may be, to recover any damages to the lands shown to have resulted from such change of grade. Any judgment recovered against the department of transportation shall be paid out of the state highway funds, otherwise out of the funds of city, county, village or town against which the judgment is recovered. Where a grade has been established by ordinance, the property owner's remedy shall be as provided by municipal law. This section shall in no way contravene, limit or restrict s. 88.87
A municipality may not initiate the running of the second 90-day period by affirmatively denying a claim within the first 90-day period. A claimant has 180 days from the filing of the original claim to commence legal action. Johnson v. City of Onalaska, 153 Wis. 2d 611
, 451 N.W.2d 466
(Ct. App. 1989).
The state was not a proper party for claims against the Department of Transportation as the two are distinct legal entities. Service on the state of a summons and complaint that named the state and not the DOT as a party does not constitute service on the DOT necessary to establish personal jurisdiction over the DOT. Hoops Enterprises, III, LLC v. Super Western, Inc. 2013 WI App 7
, 345 Wis. 2d 733
, 827 N.W.2d 120
The only damages compensable under this section are damages to land. Stated differently, a qualifying landowner may only make a claim for structural or physical damages to his or her lands under this section; the landowner cannot make a claim for any consequential damages such as lost profits or a diminution in property value caused by a change-of-grade project. United America, LLC v. DOT, 2020 WI App 24
, 392 Wis. 2d 335
, 944 N.W.2d 38
“Condemnor", for the purposes of ss. 32.19
, means any municipality, board, commission, public officer, or business entity vested with the power of eminent domain which acquires property for public purposes either by negotiated purchase when authorized by statute to employ its powers of eminent domain or by the power of eminent domain. “Condemnor" also means a displacing agency. In this section, “displacing agency" means any state agency, political subdivision of the state or person carrying out a program or project with public financial assistance that causes a person to be a displaced person, as defined in s. 32.19 (2) (e)
See also s. Adm 92.001
, Wis. adm. code.
Additional items payable. 32.19(1)(1)
Declaration of purpose.
The legislature declares that it is in the public interest that persons displaced by any public project be fairly compensated by payment for the property acquired and other losses hereinafter described and suffered as the result of programs designed for the benefit of the public as a whole; and the legislature further finds and declares that, notwithstanding subch. II
, or any other provision of law, payment of such relocation assistance and assistance in the acquisition of replacement housing are proper costs of the construction of public improvements. If the public improvement is funded in whole or in part by a nonlapsible trust, the relocation payments and assistance constitute a purpose for which the fund of the trust is accountable.
“Business" means any lawful activity, excepting a farm operation, conducted primarily:
For the purchase, sale, lease or rental of personal and real property, and for the manufacture, processing, or marketing of products, commodities, or any other personal property;
Solely for the purpose of sub. (3)
for assisting in the purchase, sale, resale, manufacture, processing, or marketing of products, commodities, personal property, or services by the erection and maintenance of an outdoor advertising display or displays, whether or not such display or displays are located on the premises on which any of the above activities are conducted.
“Comparable dwelling" means one which, when compared with the dwelling being taken, is substantially equal concerning all major characteristics and functionally equivalent with respect to: the number and size of rooms and closets, area of living space, type of construction, age, state of repair, size and utility of any garage or other outbuilding, type of neighborhood and accessibility to public services and places of employment. “Comparable dwelling" shall meet all of the standard building requirements and other code requirements of the local governmental body and shall also be decent, safe and sanitary and within the financial means of the displaced person, as defined by the department of administration.
“Comparable replacement business" means a replacement business which, when compared with the business premises being acquired by the condemnor, is adequate for the needs of the business, is reasonably similar in all major characteristics, is functionally equivalent with respect to condition, state of repair, land area, building square footage required, access to transportation, utilities and public service, is available on the market, meets all applicable federal, state or local codes required of the particular business being conducted, is within reasonable proximity of the business acquired and is suited for the same type of business conducted by the acquired business at the time of acquisition.
“Comparable replacement farm operation" means a replacement farm operation which, when compared with the farm operation being acquired by the condemnor, is adequate for the needs of the farmer, is reasonably similar in all major characteristics, is functionally equivalent with respect to type of farm operation, condition and state of repair of farm buildings, soil quality, yield per acre, land area, access to transportation, utilities and public services, is within reasonable proximity of the acquired farm operation, is available on the market, meets all applicable federal, state or local codes required of the particular farm operation acquired and is suited for the same type of farming operation conducted by the displaced person at the time of acquisition.
“Displaced person" means, except as provided under subd. 2.
, any person who moves from real property or who moves his or her personal property from real property:
As a direct result of a written notice of intent to acquire or the acquisition of the real property, in whole or in part or subsequent to the issuance of a jurisdictional offer under this subchapter, for public purposes; or
As a result of rehabilitation, demolition or other displacing activity, as determined by the department of administration, if the person is a tenant-occupant of a dwelling, business or farm operation and the displacement is permanent.
Any person determined to be unlawfully occupying the property or to have occupied the property solely for the purpose of obtaining assistance under ss. 32.19
Any person, other than a person who is an occupant of the property at the time it is acquired, who occupies the property on a rental basis for a short term or a period subject to termination when the property is needed for the program or project for which it is being acquired.
“Farm operation" means any activity conducted solely or primarily for the production of one or more agricultural products or commodities for sale and home use, and customarily producing such products or commodities in sufficient quantity to be capable of contributing materially to the operator's support.
“Owner displaced person" means a displaced person who owned the real property being acquired and also owned the business or farm operation conducted on the real property being acquired.
Any individual, partnership, limited liability company, corporation or association which owns a business concern; or
Any owner, part owner, tenant or sharecropper operating a farm; or
An individual not a member of a family, except that 2 or more tenant occupants of the same dwelling unit shall be considered as one person.
“Reasonable project costs” means the total of all of the following costs that an owner displaced person of an owner-occupied business or farm operation or tenant displaced person of a tenant-occupied business or farm operation must reasonably incur to make a business or farm operation to which the owner or tenant moves a comparable replacement business or farm operation under sub. (4m)
Capital costs, including the actual costs of the construction of improvements, new buildings, structures, and fixtures; the demolition, alteration, remodeling, repair or reconstruction of existing buildings, structures, and fixtures; the removal or containment of, or the restoration of soil or groundwater affected by, environmental pollution; and the clearing and grading of land.
Financing costs, including all interest paid to holders of evidences of indebtedness issued to pay for project costs and any premium paid over the principal amount of the obligations because of the redemption of the obligations prior to maturity.
Professional service costs, including costs incurred for architectural, planning, engineering, and legal advice and services.
Imputed administrative costs, including reasonable charges for the time spent by the owner or tenant in connection with the implementation of the project.
Costs related to the construction or alteration of sewerage treatment plants, water treatment plants or other environmental protection devices, storm or sanitary sewer lines, water lines, or amenities on streets; the relocation of utility lines or other utility infrastructure, including any lines or infrastructure related to an electric utility, natural gas utility, or telecommunications utility; the installation of infrastructure necessary to provide utility service to the property, including any service from an electric utility, natural gas utility, or telecommunications utility; or the rebuilding or expansion of streets if such costs are required by the applicable municipality and are not paid for by the municipality.
“Tenant displaced person" means a displaced person who owned the business or farm operation conducted on the real property being acquired but leased or rented the real property.
Information on payments.
Before initiating negotiations to acquire the property under s. 32.05 (2a)
, 32.06 (2a)
or subch. II
, the condemnor shall provide displaced persons with copies of applicable pamphlets prepared under s. 32.26 (6)
Any condemnor which proceeds with the acquisition of real and personal property for purposes of any project for which the power of condemnation may be exercised, or undertakes a program or project that causes a person to be a displaced person, shall make fair and reasonable relocation payments to displaced persons, business concerns and farm operations under this section. Payments shall be made as follows:
Moving expenses; actual.
The condemnor shall compensate a displaced person for the actual and reasonable expenses of moving the displaced person and his or her family, business or farm operation, including personal property; actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation, but not to exceed an amount equal to the reasonable expenses that would have been required to relocate such property; actual reasonable expenses in searching for a replacement business or farm operation; and actual reasonable expenses necessary to reestablish a business or farm operation, not to exceed $10,000, unless compensation for such expenses is included in the payment provided under sub. (4m)
Moving expenses; optional fixed payments. 32.19(3)(b)1.
Any displaced person who moves from a dwelling and who elects to accept the payments authorized by this paragraph in lieu of the payments authorized by par. (a)
may receive an expense and dislocation allowance, determined according to a schedule established by the department of administration.
2. `Business and farm operations.'
Any displaced person who moves or discontinues his or her business or farm operation, is eligible under criteria established by the department of administration by rule and elects to accept payment authorized under this paragraph in lieu of the payment authorized under par. (a)
, may receive a fixed payment in an amount determined according to criteria established by the department of administration by rule, except that such payment shall not be less than $1,000 nor more than $20,000. A person whose sole business at the displacement dwelling is the rental of such property to others is not eligible for a payment under this subdivision.
Optional payment for businesses.
Any displaced person who moves his or her business, and elects to accept the payment authorized in par. (a)
, may, if otherwise qualified under par. (b) 2.
, elect to receive the payment authorized under par. (b) 2.
, minus whatever payment the displaced person received under par. (a)
, if the displaced person discontinues the business within 2 years of the date of receipt of payment under par. (a)
, provided that the displaced person meets eligibility criteria established by the department of administration by rule. In no event may the total combined payment be less than $1,000 nor more than $20,000.
Federally financed projects.
Notwithstanding pars. (a)
, in the case of a program or project receiving federal financial assistance, a condemnor shall, in addition to any payment under pars. (a)
, make any additional payment required to comply with the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 USC 4601
, and any regulations adopted thereunder.
In addition to amounts otherwise authorized by this subchapter, the condemnor shall make a payment, not to exceed $25,000, to any displaced person who is displaced from a dwelling actually owned and occupied, or from a mobile home site actually owned or occupied, by the displaced person for not less than 180 days prior to the initiation of negotiations for the acquisition of the property. For the purposes of this paragraph, a corporation organized under ch. 181
that is a nonprofit corporation, as defined in s. 181.0103 (17)
, may, if otherwise eligible, be considered a displaced owner. A displaced owner may elect to receive the payment under par. (b) 1.
in lieu of the payment under this paragraph. Such payment includes only the following:
The amount, if any, which when added to the acquisition payment, equals the reasonable cost of a comparable replacement dwelling available on the private market, as determined by the condemnor.
In the case of a person displaced from a mobile home site who meets one of the conditions under subd. 1m. a.
, the amount, if any, which when added to the trade-in or salvage value of the mobile home equals the reasonable cost of a comparable mobile home which is decent, safe and sanitary, plus an amount equal to 48 times the difference between the monthly rent being paid for the site on which the mobile home is located and the monthly rent for a comparable mobile home site or the amount necessary to enable the displaced person to make a down payment on the purchase of a comparable mobile home site. If a comparable mobile home dwelling is not available, the replacement housing payment shall be calculated on the basis of the next highest type of mobile home or a conventional dwelling that is available and meets the requirements and standards for a comparable dwelling. The owner of a mobile home shall be eligible for payments under this subdivision if one of the following conditions is met:
The mobile home is not considered to be a decent, safe and sanitary dwelling unit.
The structural condition of the mobile home is such that it cannot be moved without substantial damage or unreasonable cost.
There are no adequate or available replacement sites to which the mobile home can be moved.
The amount of increased interest expenses and other debt service costs incurred by the owner to finance the purchase of another property substantially similar to the property taken, if at the time of the taking the land acquired was subject to a bona fide mortgage or was held under a vendee's interest in a bona fide land contract, and such mortgage or land contract had been executed in good faith not less than 180 days prior to the initiation of negotiations for the acquisition of such property. The computation of the increased interest costs shall be determined according to rules promulgated by the department of administration.