eminent domain in Wisconsin, Lodi
Wisconsin, Susie THE DUCK, Molony
REALTY, GOERES PARK, HABERMANN
PARK, GIBRALTER, GIBRALTER ROCK,
another legal test of eminent
domain,
Wisconsin, Susie THE DUCK, Molony
REALTY, GOERES PARK, HABERMANN
PARK, GIBRALTER, GIBRALTER ROCK,
another legal test of eminent
domain,
EMINENT DOMAIN
2005 Assembly Bill 657
Would prohibit condemnation of property for
conveyance or lease to a private entity if the
property is not “blighted,” as defined in the bill.
[There are amendments to AB657 which
changes the original intent of the bill, you can
research the rest of the bill at this Legislative
website: http://www.legis.state.wi.
us/2005/data/AB657hst.html ] (At the time of
publication the bill was approved by the
Governor on 3-29-2006 and Published 4-12-
2006.
2005 Assembly Bill 457
Proposes to eliminate the condemnation
authority of all nongovernmental entities that are
now allowed to acquire property by
condemnation, such as railroad corporations
and public utilities. (At the time of publication
the bill was read for the first time and referred
to committee on Energy and Utilities.)
2005 Assembly Bill 682 and Senate Bill 437
Proposes to prohibit any condemnation of
property that is not expressly authorized by
statute. Current law refers to condemnation for
“any lawful purpose.” (At the time of publication
the bill was Read first time and referred to
committee on Property Rights and Land
Management.)
Senate Bill 437
Proposes to prohibit any condemnation of
property that is not expressly authorized by
statute. Current law refers to condemnation for
“any lawful purpose.”
(At the time of publication the bill was read for
the first time and referred to the Committee on
Veterans, Homeland Security, Military Affairs,
Small Business and Government Reform.)
FEDERAL LEGISLATION
In the 109th Congress, the U.S. House of
Representatives passed House Resolution
340, on June 30, 2005, expressing “grave
disapproval” of the majority opinion in Kelo. H.
R. 4128, the proposed “Private Property Rights
Protection Act of 2005,” introduced by U.S.
Representative F. James Sensenbrenner, Jr.,
of Wisconsin and 97 co¬sponsors, passed the
House of Representatives on November 3,
2005, and has been referred to the U.S.
Senate for consideration. The bill would
prohibit the federal government from using
eminent domain for economic development,
and would withhold certain federal development
funds from states that condemn private
property for economic development.
"The best guarantee for justice in public dealings is the participation in
their own government of the people most likely to suffer from
injustice." - John Morley (On Compromise)
their own government of the people most likely to suffer from
injustice." - John Morley (On Compromise)
FOR MORE INFORMATION
Search for Wisconsin Statutes on “eminent
domain” at http://www.legis.state.wi.us, hyper
link to “Wisconsin Law” and “Statutes.” LRB
“Tap the Power” on Eminent Domain and
Property Rights http://www.legis.state.wi.
us/lrb/pubs/. Or you can call the Legislative
Reference Bureau to ask questions or have
materials sent to you at the Legislative
Reference Bureau reference desk: (608) 266-
0341.
NAR Helps REALTORS® Be Proactive on
Eminent Domain
(May 18, 2006) -- WASHINGTON – A new guide
gives the real estate industry direction in
working with legislatures to regulate eminent
domain.
Since the Kelo et al v. City of New London
ruling brought attention to the issue of using
eminent domain to take non-blighted property
for economic development, numerous states
have passed or considered passing laws to
curtail local governments.
While REALTORS® have already made their
voices heard in many states, they now have a
new tool to take a more proactive approach to
legislative actions on eminent domain. In April,
NAR issued a set of “working principles” to
assist state Realtor® associations in evaluating
proposed eminent domain legislation.
The principles begin by advocating an analysis
of all alternatives to an eminent domain taking,
including voluntary sales and adaptive reuse.
The guide also suggests using an inclusive
process encompassing public hearings and
approval by a legislative body to evaluate a
taking. Another critical component is the offer
of truly just compensation for property, which
would include fair market value of the parcel as
well as lost business revenues, relocation
costs, and attorneys’ fees. Finally the guide
advocates post-taking accountability to ensure
that the public benefits identified in the
proposed taking actually occurred.
The guide also includes principles that can be
applied to use of eminent domain to achieve
economic development. The paper supports
the idea that government should not engage in
land speculation and should intervene in
markets only when private developers refuse
to do so (as in the case of blighted areas).
Governments should also be required to define
public need and public benefit before
authorizing a taking, concludes the guide.
The complete principles are available at online.
— By Mariwyn Evans for Realtor® Magazine
Online
*************
CLICK HERE to view The Guide
10 May 2006
Eminent Domain
EMINENT DOMAIN: PUBLIC OR PRIVATE
PURPOSES?
INTRODUCTION
Governments have long used the power of
eminent domain to acquire private property for
public projects such as roads, ports, schools,
and a variety of other public facilities. Although
the doctrine has a long history for all levels of
government, eminent domain has received
increased attention following a United States
Supreme Court decision, Kelo et al. v. City of
New London et al. (125 S.CT. 2655), in which
the Court ruled that a local government could
use the condemnation power for a private
for¬profit development project if deemed to
advance a “public purpose” of economic
development. The decision prompted
widespread concern about governments’
powers to seize homes and other private
property in the name of economic development.
Wisconsin LAW
Unlike the law in Connecticut, Wisconsin law
does not explicitly permit the use of eminent
domain to take and transfer property for private
economic development. Chapter 32,
Wisconsin Statutes, “Eminent Domain,”
establishes the procedure for condemnation of
private property, expressly listing the
government entities and types of corporations
LRB−06−WB−1− 3 − that have condemnation
powers and for what purposes. The chapter
also sets out the procedures for appeal of a
condemnation. Although Wisconsin law
generally appears to limit eminent domain to
traditional public uses (including some involving
private ownership, such as for railroads or
public utilities), some of the provisions relating
to redevelopment of blighted areas could be
interpreted to allow condemnation of
non¬blighted properties within an otherwise
blighted area as part of a redevelopment plan.
Other possible ambiguities in the laws relating
to eminent domain are left to the courts to
resolve.
LAWS AND LEGISLATION IN OTHER
STATES
Connecticut, where Kelo originated, is a typical
in that it is one of only three states, according to
the National Conference of State Legislatures
(NCSL), where state statutes explicitly permit
the use of eminent domain for economic
development purposes (also Massachusetts
and North Dakota); NCSL reports that nine
states have case law precedent allowing for it.
NCSL also reports that at least 13 states
(including Wisconsin) have introduced
legislation following Kelo to restrict or prohibit
the use of eminent domain for private
development, and four of them have enacted
new legislation in 2005.
In response to the public attention generated by
Kelo, a number of bills on eminent domain have
been introduced at the Wisconsin State Capital
through December 2005.
| Back to LINKS |
Another Memorial Day has come and gone.
There were ceremonies throughout the
country where elected officials were in
paradise then commemorated those who have
given so much for our country. Those elected
officials go up to the microphone and say very
nice things about the veterans who have lost
their lives for the rights of us all.
One of those rights is to own
property.
Then these same elected officials go back and
approve eminent domain takings in their
communities where private developers get
the property for their new housing units, or
retail stores, or whatever. Not even for a road
or public building. To all those elected
officials...GO BACK TO WORK AND PASS
LEGISLATION THAT ACTUALLY HELPS US
TAXPAYERS!
*****
Eminent Domain
Imagine buying a commercial property, paying
$30,000 to tear down the dilapidated building on
the site, investing $200,000 on new building
materials, and then hearing from the city
officials the proposed business could not
proceed after the local alderman exercised his
“privilege” to have your license denied. Then,
imagine the city using the fact that the
prospective business lot is empty to declare the
property “blighted” and take it using eminent
domain.
To add insult to injury, the city wants to give it
to a next door neighbor—a big contributor to the
campaign coffers of the alderman—who wants to
expand his business and was unsuccessful in his
attempts to buy the property outright.
Does this scenario sound too far-fetched to be
true? Well, it’s not. Rafael Cetina and his
family bought two parcels of land south of
downtown Milwaukee in the hopes of building a
restaurant and a nightclub. They sank a ton of
money into the project, and Rafael even turned
down two promotions at his job because of his
intention to open this family business. But
when the Cetinas applied for a liquor license,
their application was denied. The Cetinas’ next
door neighbor, Pete’s Fruit Market, whose owners
had been contributors to the local alderman’s
campaign, complained. Neighbors also
complained about the presence of another local
liquor establishment in the area.
After the liquor license was denied in 2006, the
land sat vacant for a few years as the Cetinas
were figuring out what to do with the property.
Applicants must wait three years to re-apply for a
liquor license. But in the spring of 2009, the
Common Council’s Zoning, Neighborhoods, and
Development Committee declared the property
blighted and voted to condemn it and turn it
over to Pete’s Fruit Market for its expansion.
Under any common-sense definition of blight, the
Cetinas’ land was not blighted. It was
surrounded by a picket fence and was well-
maintained. But Wisconsin law has such an
amorphous definition of blight93 that
government can find a way to condemn almost
any property. Here, the property was supposedly
“impeding business growth.”
In the end, the Cetinas agreed to use their space
for a retail development rather than a nightclub,
and the Common Council refused to follow the
committee recommendation to condemn the
land.
The lesson to be learned from this tale, apart
from another example of the scourge of
aldermanic privilege, is that until Milwaukee or
the state of Wisconsin tightens up its definition
of “blighted property,” local governments will
use this loophole in eminent domain statutes to
condemn businesses that do not live up to the
expectations of politicians and planners, and
likely transfer them into the hands of other
politically connected businesses. The possibility
that—after jumping through all the legal hurdles
to get a business off the ground, and then
surviving the rigors of the marketplace—a
business can be taken at whim when politicians,
planners and developers determine the property
could be put to better use, will be yet another
disincentive for people to start new businesses
in Milwaukee.
This is especially true in areas more likely to be
deemed blighted, which are, of course, the places
that need entrepreneurs the most.
*****
Daily Real Estate News |
January 5, 2007
Top Court to Hear New Eminent Domain Case
In another legal test of eminent domain, the U.
S. Supreme Court will decide whether a
private company can demand payment in
exchange for not seizing property.
Developer Bart Didden wanted to put a CVS
pharmacy on property he owned in Port
Chester, N.Y.. He had approvals from the local
planning board but because the land was in a
blighted redevelopment zone, he had to also
gain approval from the private redevelopment
company hired by the city to control
development in the zone.
The developer overseeing the zone told
Didden he’d have to pay $800,000 or give the
developer G&S, a 50 percent stake in the CVS
business. Otherwise, G&S would seize the
property and use it for a Walgreen’s drug
store.
Didden refused and the Village of Port
Chester began eminent domain proceedings.
Didden sued at various levels without
satisfaction, and now the matter is set to go
before the highest court. Property rights
activists see this as an opportunity for the top
court to clarify its controversial decision in
Kelo v. New London.
In that opinion in June 2005, the court ruled 5-
4 that local governments could seize private
property and turn it over to a private
developer when the action was part of an
economic development project that benefits
the public.
Source: The Christian Science Monitor,
Warren Richey (01/05/07)
****