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The Preeminent Domain

An Eminent Domain and Land Use Blog

Author: Steve Streck

Kelo and Foxconn – How Soon They Forget

Private property may only be condemned if it is being taken for a “public use” according to the Fifth Amendment Takings Clause. In 2005, in a universally unpopular opinion, the SCOTUS decided that the taking of private property by a city for redevelopment by a private entity was a “public use.” In Kelo, the New London (Connecticut) Development Corporation (“NLDC”)—a private non-profit organization established to promote development planning in the city—produced  a development plan to revitalize the Fort Trumbull area of... Read More ›
Steve Streck
Steve Streck
October 31, 2017

Landowner Loses Claim That the Condemnor Paid Him Too Much

Every once in a while, we are asked to defend a condemnor in a right-to-take action where the landowner claims he or she was paid too much money for whatever land rights were taken.  The most recent attempt to make such a claim was addressed by the Jefferson County Circuit Court in Case No. 16-CV-93.  As in every other case we are aware of, the claim was unsuccessful.  But why would the landowner make such a claim in the first... Read More ›
Steve Streck
Steve Streck
November 2, 2016

The $267 Inverse Condemnation Claim

This is an odd case on several levels. The Wisconsin Court of Appeals’ decision on the law was entirely predictable. The odd thing is that the appeal was taken in the first place. The Village of Cross Plains took 703 square feet of Kenneth Ransom’s property to build a road. The award of damages was $6,650. Ransom appealed, claiming he was entitled to $11,300 in just compensation. The Village then apparently submitted an appraisal concluding that Ransom was actually entitled... Read More ›
Steve Streck
Steve Streck
April 28, 2016

Right-to-Work Law is an Unconstitutional Taking

On Saturday morning, April 9, 2016, I read the headline in the Wisconsin State Journal:  “Dane County Judge Strikes Down Right-to-Work Law.” I have to be honest: my first thought was that another out-of-control Dane County judge is running amok, taking his opportunity to stick it to the Walker administration before he retires form the bench on July 31. Could there be another explanation? After all, no right-to-work law has been struck down in any state where it has been enacted.... Read More ›
Steve Streck
Steve Streck
April 25, 2016

No Taking, No Compensation

Here is another decision reinforcing the concept that the DOT has to take something away from you before you are entitled to just compensation, and if something is, in fact, taken, the alleged loss has to be connected to what was taken. Our prior post here discussing the 118th Street Kenosha, LLC, v. Wisconsin Dept. of Trans. supports this proposition in a case involving lost highway access by a business. The landowner in this recent Wisconsin Court of Appeals decision, Anthony... Read More ›
Steve Streck
Steve Streck
May 18, 2015

Condemnation Litigation Expenses and WDOT…Again

Compared to most states, Wisconsin law is quite favorable to landowners in condemnation valuation litigation seeking to recover their litigation expenses. Landowners can recover all expenses – including reasonable attorney’s fees, appraisal, and engineering fees – if they recover at least 15% more than the highest amount offered by the condemnor, as long as the amount is also at least $700 more than the offer. The Wisconsin Department of Transportation (“DOT”) is trying to change that statute…again. In 2008, in anticipation of... Read More ›
Steve Streck
Steve Streck
January 23, 2015

Uneconomic Remnant: One Circuit Court Judge’s View

As an eminent domain practitioner, the Wisconsin Supreme Court’s decision in Waller v. American Transmission Company last year left me…unsatisfied. Instead of acknowledging the statutory morass created by the legislature (incidentally, a morass acknowledged by both condemnors’ and landowners’ counsel), the majority decision ignores the procedural problems with the statutes and does nothing to make things easier for either landowners or condemnors. In my opinion, the problems with the decision relate more to the procedural aspects of asserting an uneconomic... Read More ›
Steve Streck
Steve Streck
September 10, 2014

Recovery of Litigation Expenses in Wisconsin and a Landowner Attorney Gaming the System

Based on anecdotal evidence I have acquired over the years, and certainly not any rigorous research, I have concluded that Wisconsin has a fairly generous statutory scheme for compensating landowner attorneys if they meet the threshold for recovering litigation expenses. Again, solely based on personal observation, it is not uncommon for attorneys representing landowners to “game” the system to maximize the possibility of such recovery. It is rare, however, for a court to recognize an attorney is doing so, and... Read More ›
Steve Streck
Steve Streck
July 8, 2014

Loss of Homes to Flood Not a Taking

The Wisconsin Court of Appeals decided today that property owners whose homes were destroyed by a dam breach could not recover on an inverse condemnation claim against the village owning the dam. The decision itself is not nearly as remarkable as the event causing the alleged taking. In June 2008, the area in the vicinity of Lake Delton, Wisconsin, experienced a 1,000-year rainfall and flooding event that caused the failure of the dam forming Lake Delton which, in turn, caused several... Read More ›
Steve Streck
Steve Streck
April 4, 2014

Landowner Wins in SCOTUS Rails-to-Trails Case

In an 8-to-1 decision released today, the United States Supreme Court sided with the landowner when it held that the United States government does not retain a reversionary interest in a railroad right-of-way when it is abandoned by the railroad. The right-of-way in this case was granted pursuant to the General Railroad Right-of-Way Act of 1875. It was granted to the railroad in 1908, and crossed land that the United States conveyed to the Brandt family in a 1976 land... Read More ›
Steve Streck
Steve Streck
March 10, 2014