Anyone who drives in Wisconsin knows that the State of Wisconsin Department of Transportation (DOT) is in the process of undertaking some major road construction projects, including the widening of Interstate 90/39, the Zoo Interchange, and soon, the widening of Interstate 94 in Racine and Kenosha Counties. Very often these road widenings, and many smaller road construction projects, involve the taking of strips of land, or the taking of access rights, or the taking of permanent or temporary easements for sloping, drainage, sound barriers and retaining walls.
The DOT has rights to condemn whole parcels of land, and these easement rights; the DOT can give the property owner a Jurisdictional Offer, and take the land, or the interest in the land, and cause title to the property to be transferred to the DOT, leaving the property owner with only the right to contest the amount of money paid for the land, for a period of two years after the taking.
The DOT must follow strict procedures to exercise these rights, including giving proper notice to all owners who have an interest in the property, giving the property owner an appraisal of the value of the interest taken, giving the property owner a short period of time (60 days) to secure its own appraisal, at the DOT’s expense, and completing required negotiations.
However, if the property owner hires an attorney early enough in the process to be effective, that attorney can be a significant help to working out a solution that minimizes damage to the owner’s property, and minimizes the amount of time that temporary easements need to affect the land.
The DOT generally thinks like an engineer; its job is to get ownership of the land and easement rights so it can build the roadway. The DOT’s agents are less sensitive to issues of title insurance, what lenders require, how customers will react to blocked access ways or lost parking stalls, and how the taking triggers zoning code and minimum parking space requirements, or renders the property a legal nonconforming use. With careful negotiations, and understanding what the DOT really needs to complete its project, an agreement can be worked out that results in the taking of less land, fewer easement rights, and lessened interruption of the property owner’s business.
Two recent cases closed by our attorneys resulted in significant benefits to the property owner; in the first case, we shortening the amount of time the DOT occupied parking spaces needed by a hotel, and reinterpreted the permanent easement to only affect underground structures, not the surface access and parking. In another case, rather than shutting down part of a thriving restaurant due to lack of sufficient parking, we worked with the DOT to obtain a parcel of unused replacement land to move the parking and drainage, and keep the business whole.
Many of the same concepts apply for condemnations undertaken by utility companies, such as the widening of easements for the massive new power line being constructed along Interstate 90/30 in the west part of the state, and municipal condemnations for road widening.
If you receive a notice of impending condemnation for road or utility work, please contact us promptly so we can be of the most benefit. If you need assistance regarding a proposed condemnation, please contact Tom Gartner or Nancy Haggerty at Michael Best.