32.05(3)(c)
(c) Stating the proposed date of occupancy regardless of the date of taking.
32.05(3)(d)
(d) Stating the amount of compensation offered, itemized as to the items of damage as set forth in
s. 32.09 and that compensation for additional items of damage as set forth in
s. 32.19 may be claimed under
s. 32.20 and will be paid if shown to exist.
32.05(3)(e)
(e) Stating that the appraisal or one of the appraisals of the property on which condemnor's offer is based is available for inspection at a specified place by persons having an interest in the lands sought to be acquired.
32.05(3)(g)
(g) Stating that the owner has 20 days from date of completion of service upon the owner of the offer, as specified in
sub. (6), in which to accept or reject the offer.
32.05(3)(h)
(h) Stating that if the owner has not accepted such offer as provided in
sub. (6) the owner has 40 days from the date of completion of service upon the owner of the offer to commence a court action to contest the right of condemnation as provided in
sub. (5); provided that the acceptance and retention of any compensation resulting from an award made prior to the commencement of such an action shall be an absolute bar to such action.
32.05(3)(i)
(i) Stating that the owner, subject to
subs. (9) (a) and
(11), will have 2 years from the date of taking the property by award in which to appeal for greater compensation without prejudice to the right to use the compensation given by the award. If the condemning authority is a housing authority organized under
ss. 66.1201 to
66.1211 a redevelopment authority organized under
s. 66.1333 or a community development authority organized under
s. 66.1335, the notice shall also state that in the case of an appeal under
sub. (9) (a) the parties having an interest in the property who are taking the appeal may initiate such appeal by filing with the condemning authority a letter requesting that the issue of the amount of such compensation be determined by the condemnation commission.
32.05(3m)
(3m) Uneconomic remnant. In this section, "uneconomic remnant" means the property remaining after a partial taking of property, if the property remaining is of such size, shape or condition as to be of little value or of substantially impaired economic viability. 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.
32.05(4)
(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 incompetent person, the condemnor shall serve such notice upon the legal guardian of such minor or incompetent, and if there is no such guardian the condemnor shall proceed under
s. 32.15 to have a special guardian appointed to represent such minor or incompetent in such proceeding. The reasonable fees of such special guardian as approved by the court shall be paid by the condemnor. Such 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.
32.05(5)
(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 and
32.12, 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.
32.05(6)
(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.
32.05(7)
(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:
32.05(7)(a)
(a) 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.
32.05(7)(b)
(b) 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".
32.05(7)(c)
(c) 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".
32.05(7)(d)
(d) 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 and
75.01 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.
32.05(8)
(8) Occupancy; writ of assistance; waste. 32.05(8)(b)
(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).
32.05(8)(c)
(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.
32.05(9)
(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 to
66.1211, 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:
32.05(9)(a)1.
1. 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.
32.05(9)(a)2.
2. 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.
32.05(9)(a)3.
3. 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.
32.05(9)(b)
(b) 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.
32.05(9)(c)
(c) 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.
32.05(9)(d)
(d) 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).
32.05(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
32.12 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.
32.05(10)(b)
(b) 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.
32.05(10)(c)
(c) 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.
32.05(11)
(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
32.12 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.,
2. and
3. shall govern.
32.05(11)(a)
(a) 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.
32.05(11)(b)
(b) 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.
32.05(11)(c)
(c) 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.
32.05(12)
(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.
32.05 History
History: 1971 c. 244,
287,
307;
1973 c. 244; Sup. Ct. Order,
67 Wis. 2d 585, 773 (1975);
1975 c. 218,
311,
410,
421;
1977 c. 29,
203,
338;
1977 c. 418 ss.
259,
924 (8m);
1977 c. 438,
440,
447,
449;
1979 c. 310;
1981 c. 282 s.
47;
1981 c. 390 s.
252;
1983 a. 27;
1983 a. 219 ss.
3,
46;
1983 a. 236 s.
13;
1983 a. 249;
1985 a. 29 s.
3200 (51);
1985 a. 135;
1987 a. 378;
1989 a. 31,
89;
1991 a. 32,
39,
316;
1993 a. 246,
263,
301,
453,
491;
1995 a. 417;
1997 a. 184,
282;
1999 a. 32,
65;
1999 a. 150 s.
672;
1999 a. 186;
2003 a. 214.
32.05 Note
NOTE: 2003 Wis. Act 214, which affected this section, contains extensive explanatory notes.
32.05 Annotation
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 (1971).
32.05 Annotation
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 (1971).
32.05 Annotation
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 (1973).
32.05 Annotation
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 (1974).
32.05 Annotation
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 (1975).
32.05 Annotation
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 (1975).
32.05 Annotation
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 (1978).
32.05 Annotation
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% 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 (1978).
32.05 Annotation
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 (1979).
32.05 Annotation
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 (1979).
32.05 Annotation
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 (1980).
32.05 Annotation
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 (1983).
32.05 Annotation
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 (1991).
32.05 Annotation
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 (1991).
32.05 Annotation
Service of an appeal under sub. (9) must be made within 60 days of filing in accordance with s. 801.02 (1). City of LaCrosse v. Shiftar Bros.
162 Wis. 2d 556,
469 N.W.2d 915 (Ct. App. 1991).
32.05 Annotation
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).
32.05 Annotation
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 (1994).
32.05 Annotation
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).
32.05 Annotation
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.
32.05 Annotation
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).
32.05 Annotation
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 (1999).
32.05 Annotation
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 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).
32.05 Annotation
Filing of an award is complete, and the 60-day appeal period under sub. (10) (a) begins to run, when the commission has filed its award with the circuit court clerk and the clerk has mailed and recorded the award under s. 32.08 (6) (b). Dairyland Fuels, Inc. v. State, 2000 WI App 129,
237 Wis. 2d 467,
614 N.W.2d 829.
32.05 Annotation
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.
32.05 Annotation
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.
32.05 Annotation
Sub. (1) does not require that the making of a relocation order must 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 32.05 Annotation
"Acceptance and retention of any compensation" under sub. (5) (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.
32.05 Annotation
Sub. (8) does not mean that a court may not grant a condemnor possession of condemned premises until a replacement property deemed acceptable by the condemnee is procured, regardless of its acquisition costs, all of which the condemnor must bear or tender, nor does it mean that the condemnee will never have to vacate the condemned property if a replacement property acceptable to the condemnee cannot be acquired for an amount not exceeding the award of compensation plus the maximum relocation benefits to which the condemnee is entitled. Dotty Dumpling's Dowry, Ltd. v. Community Development Authority of the City of Madison, 2002 WI App 200,
257 Wis. 2d 377,
651 N.W.2d 1.
32.05 Annotation
A condemnor may obtain a writ of assistance after it has provided the relocation assistance to which a displaced person is statutorily entitled. Dotty Dumpling's Dowry, Ltd. v. Community Development Authority of the City of Madison, 2002 WI App 200,
257 Wis. 2d 377,
651 N.W.2d 1.
32.05 Annotation
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.
32.05 Annotation
Income evidence is generally disfavored as a method of measuring property values. It is within the trial court's discretion to admit or exclude this evidence. National Auto Truckstops v. DOT, 2003 WI 95,
263 Wis. 2d 649,
665 N.W.2d 198,
02-1384.
32.05 Annotation
Sub. (1) does not apply to appeals of condemnation awards under sub. (11). Nesbitt Farms, LLC v. City of Madison, 2003 WI App 122,
265 Wis. 2d 422,
665 N.W.2d 379,
02-2212.
32.05 Annotation
A business that owned a parking lot used for customer and employee parking was an occupant of the lot and a displaced person under s. 32.19 (2) (e) eligible for relocation benefits under sub. (8). City of Milwaukee v. Roadster LLC, 2003 WI App 131,
265 Wis. 2d 518,
666 N.W.2d 524,
02-3102.
32.05 Annotation
Statutory restrictions on the exercise of eminent domain in Wisconsin: Dual requirements of prior negotiation and provision of negotiating materials. 63 MLR 489 (1980).
32.05 Annotation
Towards success in eminent domain litigation. Southwick, 1973 WBB No. 5.
32.05 Annotation
New development in law of eminent domain, condemnation and relocation. Thiel. WBB June, 1979.
32.06
32.06
Condemnation procedure in other than transportation matters. 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:
32.06(1)
(1) Determination of necessity of taking. The necessity of the taking shall be determined as provided in
s. 32.07.
32.06(2)(a)(a) 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.
32.06(2)(b)
(b) 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.
32.06(2a)
(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 and
32.19 where shown to exist. Before attempting to negotiate under this paragraph, 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
(b),
(10) and
(12) and
chs. 808 and
809 shall govern such appeals. The date the conveyance is recorded shall be treated as the date of taking and the date of evaluation.
32.06(3)
(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) and
(4), 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).
32.06(3m)
(3m) Definition. In this section, "uneconomic remnant" means the property remaining after a partial taking of property, if the property remaining is of such size, shape or condition as to be of little value or of substantially impaired economic viability. If 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.
32.06(4)
(4) Right of minors and incompetents. If any person having an ownership interest in the property proposed to be condemned is a minor or an incompetent person, a special guardian shall be appointed for the person pursuant to
s. 32.05 (4).
32.06(5)
(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 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 and
32.12 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 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.
32.06(6)
(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 20 days from the date of filing the final judgment order or remittitur in the circuit court of the county in an action commenced under
sub. (5), if the judgment permits the taking of the land, in which to accept the jurisdictional offer and deliver the same to the condemnor. If the offer is accepted, the transfer of title shall be accomplished within 60 days after acceptance including payment of the consideration stipulated in such offer unless such time is extended by mutual written consent of the condemnor and condemnee. If the jurisdictional offer is rejected in writing by all of the owners of record the condemnor may proceed to petition in condemnation forthwith. If the owner fails to convey the condemnor may proceed as hereinafter set forth.
32.06(7)
(7) Petition for condemnation proceedings. If the jurisdictional offer is not accepted within the periods limited in
sub. (6) or the owner fails to consummate an acceptance as provided in
sub. (6), the condemnor may present a verified petition to the circuit court for the county in which the property to be taken is located, for proceedings to determine the necessity of taking, where such determination is required, and the amount of just compensation. The petition shall state that the jurisdictional offer required by
sub. (3) has been made and rejected; that it is the intention of the condemnor in good faith to use the property or right therein for the specified purpose. It shall name the parties having an interest of record in the property as near as may be and shall name the parties who are minors or persons of unsound mind or unknown. The petition may not disclose the amount of the jurisdictional offer, and if it does so it is a nullity. The petition shall be filed with the clerk of the court. Notice of the petition shall be given as provided in
s. 32.05 (4) to all persons having an interest of record in the property, including the special guardian appointed for minors or incompetent persons. A lis pendens shall be filed on the date of filing the petition. The date of filing the lis pendens is the "date of evaluation" of the property for the purpose of fixing just compensation, except that if the property is to be used in connection with the construction of a facility, as defined under
s. 196.491 (1), the "date of evaluation" is the date that is 2 years prior to the date on which the certificate of public convenience and necessity is issued for the facility. The hearing on the petition may not be earlier than 20 days after the date of its filing unless the petitioner acquired possession of the land under
s. 32.12 (1) in which event this hearing is not necessary. If the petitioner is entitled to condemn the property or any portion of it, the judge immediately shall assign the matter to the chairperson of the county condemnation commissioners for hearing under
s. 32.08. An order by the judge determining that the petitioner does not have the right to condemn or refusing to assign the matter to the chairperson of the county condemnation commissioners may be appealed directly to the court of appeals.
32.06(8)
(8) Commission hearing. Thereafter the commission shall proceed in the manner and with the rights and duties as specified in
s. 32.08 to hear the matter and make and file its award with the clerk of the circuit court, specifying therein the property or interests therein taken and the compensation allowed the owner, and the clerk shall give certified mail notice with return receipt requested of such filing, with a copy of the award to condemnor and owner.
32.06(9)
(9) Abandonment of proceedings; or payment of award. 32.06(9)(a)(a) Within 30 days after the date of filing of the commission's award, the condemnor shall petition the circuit court for the county wherein the property is situated, upon 5 days' notice by certified mail to the owner, for leave to abandon the petition for taking if the condemnor desires to abandon the proceeding. The circuit court shall grant the petition upon such terms as it deems just, and shall make a formal order discontinuing the proceeding which order shall be recorded in the judgment record of the court after the record of the commission's award. The order shall operate to divest any title of condemnor to the lands involved and to automatically discharge the lis pendens.
