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The Preeminent Domain

An Eminent Domain and Land Use Blog

Page: 4 of 6

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

No Compensation for Loss of Direct Access to a Controlled-Access Highway

The Wisconsin Court of Appeals recently held in an unpublished opinion that a property owner was not entitled to compensation when the Department of Transportation (“DOT”) removed its direct access to a controlled-access highway and replaced it with an alternate access. Hoffer Properties, LLC (“Hoffer”), owned property that abutted State Highway 19. The property had direct driveway access to this controlled-access highway. A controlled-access highway is a highway designed for high-speed traffic with all traffic flow and entrance and departure points regulated... Read More ›
July 16, 2014

Seizing Mortgages – New Cities Show Interest in Richmond’s Eminent Domain Plan

In a previous post, we discussed the city of Richmond, California, and its failure to get a supermajority vote to move forward with its plan to seize underwater mortgages through its eminent domain power. While it failed to pass the resolution, it sought other California cities, such as San Francisco, to join a joint powers authority to implement the plan. It appears that San Francisco is now considering joining Richmond’s joint powers authority as members of the San Francisco Board of... Read More ›
July 16, 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

Takings Cannot Be Too Large or Too Small: They Must Be “Just Right”

The blog recently posted an article explaining the Utah Supreme Court, in Utah Dep’t of Transportation v. Carlson, No. 20120414 (June 24, 2014), addressed the issue of whether or not the Utah DOT could take excess land in order to avoid a dispute regarding severance damages. In that case, the Utah DOT took all 15 acres from the landowner, even though it only needed 1.2 acres for the road project. While the Utah Supreme Court agreed with the trial... Read More ›
Michelle Martin
Michelle Martin
July 7, 2014

Supreme Court to Decide Compensation for Loss of Road Access

The Wisconsin Supreme Court recently accepted review of a case that will have substantial implications for those businesses that lose street access to due to Department of Transportation (“DOT”) road projects. Specifically, the outcome of this case will help determine the extent that the DOT must compensate a business owner when it removes access to the property. The plaintiff, 118th Street Kenosha, LLC (“118th Street Kenosha”), owns a four-store shopping center near State Trunk Highway 50 and Interstate 94 in... Read More ›
April 25, 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

Seizing Mortgages – Richmond Fails to Get Supermajority Vote

The Richmond City Council has failed to obtain the supermajority of votes needed to enact its eminent domain plan to seize underwater mortgages. California eminent domain law requires five of the seven members of a city council to approve a measure to use eminent domain. Richmond could not obtain the five required votes to proceed. The city is not quitting, however. It is continuing its pursuit to help homeowners suffering from underwater mortgages. But to do so, the City is... Read More ›
February 26, 2014

If a Permit Condition Is Not a Compensable Taking, It Is Constitutional

It is a natural assumption that if a municipality is going to impose conditions on the granting of a building permit that the conditions must be reasonably related to the permit or else the conditions are not constitutional. But, a California court has held that if the condition that is being imposed does not unconstitutionally take something from the landowner, then it does not matter if the condition is reasonably related to the permit or not. In Powell v. County... Read More ›
Michelle Martin
Michelle Martin
February 21, 2014