SB83: Bill Text

LRB-0275/2

PG:wlj:ph

2011 - 2012 LEGISLATURE

2011 Senate BILL 83

April 28, 2011 - Introduced by Senators Lazich, Zipperer, Moulton, Kapanke and Schultz, cosponsored by Representatives Williams, Wynn, Steineke, Rivard, Bies and T. Larson. Referred to Committee on Judiciary, Utilities, Commerce, and Government Operations.

SB83,1,8 An Act to repeal 32.07 (2), 32.22, 32.51 (1) (a) to (g) and 66.1201 (10) (b) to (g); to renumber and amend 32.07 (4) and 32.51 (1) (intro.); to amend 32.03 (6) (a) (intro.), 32.06 (intro.), 32.06 (5), 32.07 (3), 32.71, 66.1201 (10) (a), 66.1311 (3), 66.1313 (1), 66.1327 (1), 66.1331 (2), 66.1331 (4) (b), 66.1331 (15), 66.1333 (3) (f), 66.1333 (5) (b) 1., 66.1333 (5) (c) 1r., 66.1333 (17) and 66.1337 (5); to repeal and recreate 66.1331 (3) (a), 66.1333 (2m) (b) and 66.1333 (2m) (bm); and to create 32.015 and 32.03 (6) (c) 5. to 7. of the statutes; relating to: various changes to the eminent domain laws.

Analysis by the Legislative Reference Bureau

This bill makes a number of changes to the laws governing condemnation in general, and to the laws governing the condemnation of blighted property in particular, including the following:

1. Under current law, an entity vested with the power of eminent domain may acquire property by condemnation for any public purpose. This bill provides that property may be condemned only for the following public uses:

(a) The possession, occupation, and ownership of the property by a public agency for the enjoyment of the public agency or the general public.

(b) The establishment or operation of a public utility.

(c) The elimination of blighted property.

2. Current law provides that, in general, property that is not blighted may not be condemned if the condemnor intends to convey the property to a private entity. This bill narrows the meaning of "blighted property," thus expanding the scope of the prohibition. The bill also requires a condemnor who intends to convey property to a private entity to make additional written findings before commencing the condemnation. The condemnor must find that the property has been cited for one or more violations of state or local building codes, that the violations have not been remedied despite at least two notices to do so, and that the cost of remedying the violations is equal to more than one-half the assessed value of the property, excluding the value of the land.

3. Currently, a municipality may use a special procedure to condemn blighted residential property. The special procedure allows such condemnations to occur more quickly. This bill eliminates the special procedure and also requires that all condemnations by a housing authority, redevelopment authority, or community development authority be conducted using the regular procedure.

4. The bill specifies that whenever a property owner wishes to contest the right of a condemnor to condemn his or her property in court, the owner's failure to raise specific objections before receiving the condemnor's jurisdictional offer does not preclude the owner's claim. The bill provides that in an action to contest the right of a condemnor to condemn the owner's property, if the condemnor's intent is to eliminate blight, the condemnor must prove by a preponderance of the evidence that the owner's property is blighted property.

5. Currently, in most condemnation proceedings, the condemnor determines the necessity of the taking. In certain instances involving public utilities, the Public Service Commission (PSC) must issue a certificate of public convenience and necessity, which constitutes the determination of the necessity of the taking. This bill provides that in all cases except those in which a certificate of public convenience and necessity suffices, a judge must determine the necessity of the taking, which must be established by a preponderance of the evidence. The bill also provides that the determination by the PSC of the necessity of taking an undeveloped water power site is conclusive only if it is not arbitrary or unreasonable.

6. Current law allows a first class city (currently, only the city of Milwaukee) to use an alternative procedure to condemn property. Current law requires that the laws governing the alternative procedure be liberally construed "to provide the city with the largest possible power." This bill requires that the laws governing the alternative procedure be strictly construed.

7. The bill narrows the definition of "blighted area" and "blighted property" for condemnations conducted by redevelopment authorities and eliminates the provision requiring that the grant of eminent domain authority to redevelopment authorities and the procedures governing such condemnations be liberally construed.

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SB83, s. 1 Section 1. 32.015 of the statutes is created to read:

SB83,3,4 32.015 Public use requirements. In addition to the restrictions specified in ss. 32.02 and 32.03, property may be acquired by condemnation only for the following public uses:

SB83,3,6 (1) The possession, occupation, and ownership of the property by a public agency for the enjoyment of the public agency or the general public.

SB83,3,7 (2) The establishment or operation of a public utility, as specified in s. 32.02.

SB83,3,8 (3) The elimination of blighted property.

SB83, s. 2 Section 2. 32.03 (6) (a) (intro.) of the statutes is amended to read:

SB83,3,19 32.03 (6) (a) (intro.) In this subsection, "blighted property" means any property that is not zoned or used for agricultural purposes; 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,; and to which at least one of the following applies:

SB83, s. 3 Section 3. 32.03 (6) (c) 5. to 7. of the statutes are created to read:

SB83,4,5 32.03 (6) (c) 5. A finding that the owner's property has been cited for one or more violations of applicable state or local building codes involving the roof and roof framing elements; support walls, beams, and headers; the foundation, footings, and subgrade conditions; light and ventilation; plumbing; fire protection; public utilities; flooring; or walls, insulation, and exterior envelope.

SB83,4,8 6. The code violations under subd. 5. have not been remedied despite the issuance by the local governmental unit that issued the citations of at least 2 notices to do so.

SB83,4,11 7. The cost of remedying the code violations under subd. 5. would exceed an amount equal to 50 percent of the most recent assessed value of the property, excluding the value of the land.

SB83, s. 4 Section 4. 32.06 (intro.) of the statutes is amended to read:

SB83,4,16 32.06 Condemnation procedure in other than transportation matters. (intro.) The procedure in condemnation in all matters except acquisitions under s. 32.05 or 32.22, acquisitions under subch. II, acquisitions under subch. II of ch. 157, and acquisitions under ch. 197, shall be as follows:

SB83, s. 5 Section 5. 32.06 (5) of the statutes is amended to read:

SB83,5,22 32.06 (5) Court action to contest right of condemnation. When 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, such 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 in which 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 and 32.12 may be raised pertaining to the condemnation of the property described in the jurisdictional offer. Failure to raise specific objections to the condemnation before the service of the jurisdictional offer does not preclude any claims in an action under this subsection. If the condemnor's intent in condemning the owner's property is to eliminate blight, the condemnor shall prove by a preponderance of the evidence that the owner's property is blighted property. 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 such action is not commenced within the time limited the owner or other person having any interest in the property shall be forever barred from raising any such objection in any other manner. The commencement of an action by an owner under this subsection shall not prevent a condemnor from filing the petition provided for in sub. (7) and proceeding thereon. Nothing in this subsection 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. This section shall not apply to any owner who had a right to bring a proceeding pursuant to s. 66.431 (7), 1959 stats., prior to its repeal by chapter 526, laws of 1961, effective on October 8, 1961, and, in lieu of this section, s. 66.431 (7), 1959 stats., as it existed prior to such effective date of repeal shall be the owner's exclusive remedy.

SB83, s. 6 Section 6. 32.07 (2) of the statutes is repealed.

SB83, s. 7 Section 7. 32.07 (3) of the statutes is amended to read:

SB83,6,2 32.07 (3) In all other cases, the judge shall determine the necessity, which shall be established by a preponderance of the evidence.

SB83, s. 8 Section 8. 32.07 (4) of the statutes is renumbered 32.07 (2m) amended to read:

SB83,6,6 32.07 (2m) The determination of the public service commission of the necessity of taking any undeveloped water power site made pursuant to s. 32.03 (3) shall be conclusive unless the determination is arbitrary or unreasonable.

SB83, s. 9 Section 9. 32.22 of the statutes is repealed.

SB83, s. 10 Section 10. 32.51 (1) (intro.) of the statutes is renumbered 32.51 (1) and amended to read:

SB83,6,12 32.51 (1) Purposes. In addition to the powers granted under subch. I, any Any city may condemn or otherwise acquire property under this subchapter for: the purposes specified in s. 32.015.