The Appeal Process In Wisconsin

1. The Appeal ProcessIn Wisconsin Legal Principles for Bringing Suit Against the Sovereign

2. Presentation Contents: • WisDOT Acquisition Process Flow Chart • WisDOT Average Acquisition Timelines • Appraisal Phase • Negotiation Phase • Litigation Phase • Types of Appeals: • Statutory Process • Applicable Timelines

3. “Quick Take” Defined “The first is a standard condemnation proceeding in which the public agency does not take possession and title to condemned property until after a jury has awarded just compensation; thus, the ‘taking’ and the ‘compensation’ are contemporaneous and occur at the conclusion of court proceedings. Until then, the property owner bears the risk of loss to the property. ( Citations omitted). The second procedure, a quick-take proceeding, allows a public agency to take possession of a condemned property and the property owner to obtain the probable compensation for that property well in advance of the termination of court proceedings. […] City of South Gate v. Jauregui  2012 WL 89870, 1 (Cal.App. 2 Dist.,2012)

4. Part One: Acquisition Flow Chart

5. Part Two: WisDOT Average Acquisition Process Timelines

6. Maximum Negotiation Timeline Minimum Condemnation Timeline Project Timeline:

7. Appraisal Phase: • Tasks Necessary to Completion: • Appraisal Contract awarded to consultant • Approximate Time: 2 months • Draft Appraisal submitted to WisDOT for • Review and Offering Price Approval • Approximate Time: 2 months

8. Appraisal Phase:

9. Negotiation Phase Negotiation Phase: T-minus approx’ (107) Days to Parcel Completion

10. Litigation Phase • Wisconsin Dept. of Justice Represents WisDOT • Regional Litigation Coordinators assist • T plus zero to 4 years, or more!!

11. Part 3: Procedure for Property Owner Challenges to WisDOT Acquisitions and Relocations How It Works in Wisconsin’s Quick Take Process.

12. What about the states’ Immunity from Suit – i.e., Sovereign Immunity? • Wis. Const. Article IV, Section 27. The legislature shall direct by law in what manner and in what courts suits may be brought against the state. “The doctrine of sovereign immunity cannot bar an action for just compensation based on a taking of private property for public use even though the legislature has failed to establish specific provisions for the recovery of just compensation.” Zinn v. State, 112 Wis.2d 417, 334 N.W. 2d 67 (Wis. 1983) • ****States’ condemnation statutes are considered a broad waiver of sovereign immunity, and, along with claims founded directly on the constitution itself, are the exclusive methods for an aggrieved land owner to claim just compensation for the taking or occupation of private property.****

13. Comparison: State Constitutional Takings Clauses – Takings vs Takings and Damages Wisconsin: ARTICLE I, Sec. 13. “Private Property for public use.  SECTION 13.  The property of no person shall be taken for public use without just compensation therefor.” Minnesota: ARTICLE I, BILL OF RIGHTS Sec. 13. Private property for public use. Private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured. Illinois:ARTICLE 1 BILL OF RIGHTS SECTION 15. RIGHT OF EMINENT DOMAIN Private property shall not be taken or damaged for public use without just compensation as provided by law. Such compensation shall be determined by a jury as provided by law. • Michigan: ARTICLE X Property • § 2 Eminent domain; compensation. • Sec. 2. Private property shall not be taken for public use without just compensation therefore • being first made or secured in a manner prescribed by law. […]

14. Howell Plaza II v. DOT: 92 Wis.2d 74, 284 N.W.2d 887 (Wis. 1979) Absence of a Taking; Condemnation Blight • Howell alleged inverse condemnation where Highway Comm’n announced path for future freeway • Alignment would have traversed 50 acre undeveloped area of 60 acre larger commercial parcel. • EIS for planned corridor not yet prepared • After taking steps, Highway Comm’n terminated all efforts to purchase property citing challenges to the legality of the early acquisition process. • Within one year, LO brought its claim for inverse condemnation • LO Expert testified that LO unable to develop approx. remaining acres • Issue: Was LO property taken or occupied?

15. Howell Plaza II v. DOT: Con’t • In WI There Must Be A Taking before there can be claim for just compensation • Incidental damages (a/k/a “consequential” damages) to property resulting from governmental activities, or laws passed in the promotion of the public welfare, is not considered a taking of the property for which compensation must be made • WI Constitution, like its federal equivalent “does not undertake … to • socialize all losses, but [only] those which result from a taking of property. • There need not be a physical occupation or possession by [the state] for there to be a compensable taking • Burden on LO to establish that governmental activities deprived LO of all or substantially all of the beneficial use of the property • Broad Rule: The fact that LO suffered a loss as a result of the announcement and initial planning of a public improvement has not generally been held to constitute a taking of property

16. Howell Plaza II v. DOT: Con’t Held: [The] uncertainty […] often a result of a planned, public improvement which requires the eventual acquisition of private property […] does not constitute a taking of all or substantially all of the beneficial use of the property. Judgment of the circuit court – Affirmed. But Compare: Moorhead Economic Development Authority v. Anda, 789 N.W.2d 860 (Mn 2010)

17. Procedure for Available Appeals in Wisconsin • Right of Condemnation – a/k/a, “Right to Take” • Appeal for Greater Compensation: • Appeal from Conveyance, or • Appeal from Award of Damages • “Inverse Condemnation,” a/k/a, Condemnation Proceedings Instituted By Property Owner • Relocation • Drainage Claims

18. Condemnee Litigation Expenses – The Great WI Fee Shifting Provision Litigation Expenses defined as the sum of “all costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees necessary to prepare for or participate in actual or anticipated proceedings before the condemnation commissioners, board of assessment or any court Condemnee Standard to prevail: commission award, court or jury verdict exceeds the jurisdictional offer or the highest written offer prior to the JO by at least $700 and at least 15% Liability for fees accrues 14 days after date of taking and includes interest

19. Appeals for Greater Compensation: Two Approaches • I. Appeal from conveyance (Deed) • Must be brought within 6 months after recording • Amount of compensation treated as the award • Date of recording treated as the date of taking and the date of evaluation • Right of appeal granted to all listed parties with an interest of record, e.g., mortgages, liens, long term tenancies • II. Appeal from Award of Damages • Must be brought not later than 2 years from the date of taking, as defined above • Right of appeal granted to all listed parties with an interest of record, e.g., mortgages, liens, long term tenancies

20. Court Action to Contest Right of Condemnation, a/k/a, “Right to Take” • Must be brought within 40 days of service of the Jurisdictional Offer • Allows LO to Challenge the right of the condemnor to condemn the property described in the JO for any reason other than that the amount of compensation is inadequate • Trial of the issues to be “given precedence over all other actions” in [the circuit court] not then on trial. • Prevailing LO awarded litigation expenses

21. Condemnation Proceedings Instituted By Property Owner – a/k/a, “Inverse Condemnation” • Action commenced by verified petition: • Shall describe the land being occupied • Shall be served upon the “person” occupying the land • Requires court to make a finding of occupation without having the right to do so – i.e., a trespass • Matter will be treated as though LO received a JO and has failed to accept, and assumes LO not questioning the right to take • Successful LO eligible to collect litigation fees under fee shifting provisions • 6 year limitations period applies. BOP on LO to establish commencement date

22. Relocation Claims: Mixture of Administrative Review and Direct Court Proceedings • Optional procedure: for Displacee to appeal claim denial for review by Wis. Dept. of Admin. – agency with program oversight – mediation model Right of Action in Circuit Court: • Initial claim filed with condemnor • Claim to be filed after damages have fully materialized but not later than two (2) years after condemnor takes physical possession of the property • If claim not allowed within 90 days after the filing, claimant has right of action against condemnor Note: Such lawsuits falloutside WI’s litigation fee shifting provisions

23. Drainage or Flooding Claims • Must be brought within 3 years after alleged damage occurred • Claimant must file claim with gov’t agency • W/n 90 days of claim, agency must: • Correct the cause • Acquire the flooding rights • Deny the claim Thereafter, matter proceeds under inverse condemnation procedure Suit is for “such other relief, other than damages, as may be just and equitable.”

24. Wisconsin’s Acquisition and Litigation Statistics

25. Wisconsin’s Litigation Payments