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Michelle Martin

Michelle Martin
mmartin@axley.com
262.409.2288

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

July 7, 2014

The blog www.inversecondemnation.com 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 court that the Utah statutes allow for the taking of excess lands, it remanded the case back to the trial court to address the issue of whether or not the taking of the excess lands satisfies the “public use” element of the federal and state’s constitutions (private property may not be taken for public use without just compensation).

This recent decision in Utah leads us to review Wisconsin law as it applies to excess takings. On the one hand, Wis. Stat. §§ 32.05(3m) and 32.06(3m) require the condemnor to assess whether the property remaining after a proposed taking is an uneconomic remnant (as defined in the statutes). “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.” If the condemnor does not believe its acquisition will leave the landowner with an uneconomic remnant, but the landowner disagrees, the landowner can contest the condemnation and have a determination made as to whether or not it will be left with an uneconomic remnant.

On the other hand, the condemnor cannot take more property than it needs. In Mitton v. Wisconsin Dep’t. of Transp., 184 Wis. 2d 738, 516 N.W.2d 709 (1994), the Wisconsin DOT attempted to acquire 6.26 acres of the Mittons’ property when it only needed 1.26 acres for its project. The DOT wanted to acquire the additional acreage because it was a historic site that contained Indian artifacts. The DOT asserted it needed to condemn all of the acreage in order to “minimize the harm to the historic site and obtain federal approval for the highway project.”

The standard applied by the Mitton court was whether the DOT had reasonable grounds for the decision to seek condemnation, citing Falkner v. Northern States Power Co., 75 Wis. 2d 116, 135, 248 N.W.2d 885 (1977) (a condemnor invoking the power of eminent domain constitutes an implicit decision that the taking is necessary for a public purpose, but the decision is reviewable, determining whether the condemnor has reasonable ground for the decision, or whether that decision constituted fraud, bad faith, or a gross abuse of discretion). A condemnor is unable to take more property than the public use requires. Falkner, 75 Wis. 2d at 135.

The Mittons argued against the taking, contending while the DOT could take the 1.26 acres for the right-of-way, it did not have the authority to condemn the rest of the acreage. The trial court agreed with the DOT, but the Court of Appeals and the Supreme Court did not. The Court of Appeals determined the condemnation of the extra acreage was for the preservation of an Indian burial site, and the DOT lacked the authority to condemn for that purpose. The Supreme Court agreed, concluding the DOT did not have reasonable grounds for taking the extra acreage.

Inverse Condemnation

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