2023 Wisconsin Statutes & Annotations › Chapter 32 - Eminent domain. › 32.09 - Rules governing determination of just compensation.

32.09
Rules governing determination of just compensation.
In all matters involving the determination of just compensation in eminent domain proceedings, the following rules shall be followed:
(1)
The compensation so determined and the status of the property under condemnation for the purpose of determining whether severance damages exist shall be as of the date of evaluation as fixed by s. 32.05 (7) (c) or 32.06 (7).
(1m)
(a)
As a basis for determining value, a commission in condemnation or a court shall consider the price and other terms and circumstances of any good faith sale or contract to sell and purchase comparable property. A sale or contract is comparable within the meaning of this paragraph if it was made within a reasonable time before or after the date of evaluation and the property is sufficiently similar in the relevant market, with respect to situation, usability, improvements, and other characteristics, to warrant a reasonable belief that it is comparable to the property being valued.
(b)
As a basis for determining value, a commission in condemnation or a court shall consider, if provided by the condemnor or condemnee, an appraisal based on the income approach and an appraisal based on the cost approach.
(2)
In determining just compensation the property sought to be condemned shall be considered on the basis of its most advantageous use but only such use as actually affects the present market value.
(2m)
In determining just compensation for property sought to be condemned in connection with the construction of facilities, as defined under s. 196.491 (1) (e), any increase in the market value of such property occurring after the date of evaluation but before the date upon which the lis pendens is filed under s. 32.06 (7) shall be considered and allowed to the extent it is caused by factors other than the planned facility.
(3)
Special benefits accruing to the property and affecting its market value because of the planned public improvement shall be considered and used to offset the value of property taken or damages under sub. (6), but in no event shall such benefits be allowed in excess of damages described under sub. (6).
(4)
If a depreciation in value of property results from an exercise of the police power, even though in conjunction with the taking by eminent domain, no compensation may be paid for such depreciation except as expressly allowed in subs. (5) (b) and (6) and s. 32.19.
(5)
(a)
In the case of a total taking the condemnor shall pay the fair market value of the property taken and shall be liable for the items in s. 32.19 if shown to exist.
(b)
Any increase or decrease in the fair market value of real property prior to the date of evaluation caused by the public improvement for which such property is acquired, or by the likelihood that the property would be acquired for such improvement, other than that due to physical deterioration within the reasonable control of the owner, may not be taken into account in determining the just compensation for the property.
(6)
In the case of a partial taking of property other than an easement, the compensation to be paid by the condemnor shall be the greater of either the fair market value of the property taken as of the date of evaluation or the sum determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement and giving effect, without allowance of offset for general benefits, and without restriction because of enumeration but without duplication, to the following items of loss or damage to the property where shown to exist:
(a)
Loss of land including improvements and fixtures actually taken.
(b)
Deprivation or restriction of existing right of access to highway from abutting land, provided that nothing herein shall operate to restrict the power of the state or any of its subdivisions or any municipality to deprive or restrict such access without compensation under any duly authorized exercise of the police power.
(c)
Loss of air rights.
(d)
Loss of a legal nonconforming use.
(e)
Damages resulting from actual severance of land including damages resulting from severance of improvements or fixtures and proximity damage to improvements remaining on condemnee's land. In determining severance damages under this paragraph, the condemnor may consider damages which may arise during construction of the public improvement, including damages from noise, dirt, temporary interference with vehicular or pedestrian access to the property and limitations on use of the property. The condemnor may also consider costs of extra travel made necessary by the public improvement based on the increased distance after construction of the public improvement necessary to reach any point on the property from any other point on the property.
(f)
Damages to property abutting on a highway right-of-way due to change of grade where accompanied by a taking of land.
(g)
Cost of fencing reasonably necessary to separate land taken from remainder of condemnee's land, less the amount allowed for fencing taken under par. (a), but no such damage shall be allowed where the public improvement includes fencing of right-of-way without cost to abutting lands.
(6g)
In the case of the taking of an easement, the compensation to be paid by the condemnor shall be determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement and giving effect, without allowance of offset for general benefits, and without restriction because of enumeration but without duplication, to the items of loss or damage to the property enumerated in sub. (6) (a) to (g) where shown to exist.
(6r)
(a)
In the case of a taking of an easement in lands zoned or used for agricultural purposes, for the purpose of constructing or operating a high-voltage transmission line, as defined in s. 196.491 (1) (f), or any petroleum or fuel pipeline, the offer under s. 32.05 (2a) or 32.06 (2a), the jurisdictional offer under s. 32.05 (3) or 32.06 (3), the award of damages under s. 32.05 (7), the award of the condemnation commissioners under s. 32.05 (9) or 32.06 (8) or the assessment under s. 32.57 (5), and the jury verdict as approved by the court under s. 32.05 (10) or (11) or 32.06 (10) or the judgment under s. 32.61 (3) shall specify, in addition to a lump sum representing just compensation under sub. (6) for outright acquisition of the easement, an amount payable annually on the date therein set forth to the condemnee, which amount represents just compensation under sub. (6) for the taking of the easement for one year.
(b)
The condemnee shall choose between the lump sum and the annual payment method of compensation at such time as the condemnee accepts the offer, award or verdict, or the proceedings relative to the issue of compensation are otherwise terminated. Selection of the lump sum method of payment shall irrevocably bind the condemnee and successors in interest.
(c)
1.
Except as provided under subd. 2., if the condemnee selects the annual payment method of compensation, the fact of such selection and the amount of the annual payment shall be stated in the conveyance or an appendix thereto which shall be recorded with the register of deeds. The first annual payment shall be in addition to payment of any items payable under s. 32.19. Succeeding annual payments shall be determined by multiplying the amount of the first annual payment by the quotient of the state assessment under s. 70.575 for the year in question divided by the state assessment for the year in which the first annual payment for that easement was made, if the quotient exceeds one. A condemnee who selects the annual payment method of compensation, or any successor in interest, may at any time, by agreement with the condemnor or otherwise, waive in writing his or her right, or the right of his or her successors in interest, to receive such payments. Any successor in interest shall be deemed to have waived such right until the date on which written notice of his or her right to receive annual payments is received by the condemnor or its successor in interest.
2.
If lands which are zoned or used for agricultural purposes and which are condemned and compensated by the annual payment method of compensation under this paragraph are no longer zoned or used for agricultural purposes, the right to receive the annual payment method of compensation for a high-voltage transmission line easement shall cease and the condemnor or its successor in interest shall pay to the condemnee or any successor in interest who has given notice as required under subd. 1. a single payment equal to the difference between the lump sum representing just compensation under sub. (6) and the total of annual payments previously received by the condemnee and any successor in interest.
(7)
In addition to the amount of compensation paid pursuant to sub. (6), the owner shall be paid for the items provided for in s. 32.19, if shown to exist, and in the manner described in s. 32.20.
(8)
A commission in condemnation or a court may in their respective discretion require that both condemnor and owner submit to the commission or court at a specified time in advance of the commission hearing or court trial, a statement covering the respective contentions of the parties on the following points:
(a)
Highest and best use of the property.
(b)
Applicable zoning.
(c)
Designation of claimed comparable lands, sale of which will be used in appraisal opinion evidence.
(d)
Severance damage, if any.
(e)
Maps and pictures to be used.
(f)
Costs of reproduction less depreciation and rate of depreciation used.
(g)
Statements of capitalization of income where used as a factor in valuation, with supporting data.
(h)
Separate opinion as to fair market value, including before and after value where applicable by not to exceed 3 appraisers.
(i)
A recitation of all damages claimed by owner.
(j)
Qualifications and experience of witnesses offered as experts.
(9)
A condemnation commission or a court may make regulations for the exchange of the statements referred to in sub. (8) by the parties, but only where both owner and condemnor furnish same, and for the holding of prehearing or pretrial conference between parties for the purpose of simplifying the issues at the commission hearing or court trial.
History:  1975 c. 68, 191, 410, 425; 1977 c. 438, 440; 1983 a. 236; 1993 a. 490; 1997 a. 204; 2017 a. 243.
When a strip of land was taken and highway access to a loading dock restricted without a prior finding of necessity to limit access, the plaintiff could recover damages for loss of access because the police power under sub. (4) had not been exercised; rather the taking was by eminent domain. Crown Zellerbach Corp. v. Department of City Development, 47 Wis. 2d 142, 177 N.W.2d 94 (1970).
While the general rule is that evidence of net income is inadmissible to establish fair market value, that rule does not preclude admission of net income evidence under certain circumstances for certain purposes, including impeachment, refreshing the recollection of a witness, or when proper objection is not timely made. Mancheski v. State, 49 Wis. 2d 46, 181 N.W.2d 420 (1970).
The closing of an intersection under the police power does not require compensation so long as access to property is preserved. There is no property right to the flow of traffic. Schneider v. State, 51 Wis. 2d 458, 187 N.W.2d 172 (1971).
It was error to receive testimony of an appraiser who made the appraisal ten months before the date of the taking and acknowledged that the value had changed in the ten months but could not update the appraisal. Schey Enterprises, Inc. v. State, 52 Wis. 2d 361, 190 N.W.2d 149 (1971).
The elimination of the respondent's sewer connection, which had the effect of rendering the existing lateral sewer useless, was a damage resulting from the severance of an improvement within the meaning of sub. (6) (e), which was of such consequence as not to be incidental to the taking under the exercise of the appellant's police power that it was a compensable item of damage. Hanser v. Metropolitan Sewerage District, 52 Wis. 2d 429, 190 N.W.2d 161 (1971).
Zoning changes and sanitary facilities are elements of value and are factors to be admitted in evidence concerning value when the evidence is in proper form. When a zoning ordinance prohibits the most advantageous use of the property, the landowner may show there is a reasonable probability of rezoning so as to allow for the highest use. Bembinster v. State, 57 Wis. 2d 277, 203 N.W.2d 897 (1973).
Damages caused by a change of the grade of a street or highway where no land is taken constitutes an exercise of police power that is separate and distinct from the exercise of the power of eminent domain under sub. (6) (f) and is only compensable under s. 32.18. Jantz v. State, 63 Wis. 2d 404, 217 N.W.2d 266 (1974).
Inconvenience is a factor only when the landowner's property rights in the remaining portion are so impaired that the owner has, in effect, had that portion taken also. DeBruin v. Green County, 72 Wis. 2d 464, 241 N.W.2d 167 (1976).
An owner's opinion as to the value of real estate may be accepted, but in order to support a verdict some basis for the opinion must be shown. Genge v. City of Baraboo, 72 Wis. 2d 531, 241 N.W.2d 183 (1976).
The requirement that property be valued as an integrated and comprehensive entity does not mean that the individual components of value may not be examined or considered in arriving at an overall fair market value. Milwaukee & Suburban Transport Corp. v. Milwaukee County, 82 Wis. 2d 420, 263 N.W.2d 503 (1978).
An existing right of access in sub. (6) (b) includes the right of an abutting property owner to ingress and egress and the right to be judged on criteria for granting permits for access points under s. 86.07 (2). The restriction of access was a compensable taking. Narloch v. DOT, 115 Wis. 2d 419, 340 N.W.2d 542 (1983).
A court may apply the “assemblage" doctrine that permits consideration of evidence of prospective use that requires integration of the condemned parcel with other parcels if integration of the lands is reasonably probable. Clarmar Realty Co. v. Redevelopment Authority, 129 Wis. 2d 81, 383 N.W.2d 890 (1986).
There can be no compensation under sub. (6) (b) without the denial of substantially all beneficial use of a property. Sippel v. City of St. Francis, 164 Wis. 2d 527, 476 N.W.2d 579 (Ct. App. 1991).
A change in use is not a prerequisite to finding a special benefit under sub. (3); the real issue is whether the property has gained a benefit not shared by any other parcel. Red Top Farms v. DOT, 177 Wis. 2d 822, 503 N.W.2d 354 (Ct. App. 1993).
Damage to property is not compensated as a taking. For flooding to be a taking it must constitute a permanent physical occupation of property. Menick v. City of Menasha, 200 Wis. 2d 737, 547 N.W.2d 778 (Ct. App. 1996), 95-0185.
The state's assertion that the plaintiff's property, even if rendered uninhabitable as a residence by state construction activities, could be used for some non-residential purpose could not support a motion for dismissal. Factual issues of damage and causation are properly deferred to the summary judgment or trial stage. Wikel v. DOT, 2001 WI App 214, 247 Wis. 2d 626, 635 N.W.2d 213, 00-3215.
Evidence of net income is ordinarily inadmissible for purposes of establishing property values in condemnation cases involving commercial enterprises because income is dependent upon too many variables to serve as a reliable guide in determining fair market value. Rademann v. DOT, 2002 WI App 59, 252 Wis. 2d 191, 642 N.W.2d 600, 00-2995.
Comparable sales evidence is admissible as direct evidence of the land's value or for the limited indirect purpose of demonstrating a basis for and giving weight to an expert opinion. Admission of comparable sales as direct evidence of value is more restrictive than the admissibility rule when offered to show a basis for an expert opinion. Admission of comparable sales evidence is within the discretion of the trial court. When offered as the basis for an expert's opinion, the extent to which the offered sales are truly comparable goes to the weight of the testimony, not to admissibility. Rademann v. DOT, 2002 WI App 59, 252 Wis. 2d 191, 642 N.W.2d 600, 00-2995.
The “existing right of access" under sub. (6) (b) includes the right of an abutting property owner to reasonable ingress and egress. A frontage road might not always constitute “reasonable" access. Whether there is reasonable access depends on the specific facts in a case, to be determined by the jury. National Auto Truckstops, Inc. v. DOT, 2003 WI 95, 263 Wis. 2d 649, 665 N.W.2d 198, 02-1384.
When comparable sales are offered as substantive evidence of property value, the other property must be closely comparable to the property being taken. The properties must be located near each other and sufficiently similar in relevant market, usability, improvements, and other characteristics so as to support a finding of comparability. Alsum v. DOT, 2004 WI App 196, 276 Wis. 2d 654, 689 N.W.2d 68, 03-2563.
Sub. (6) does not provide severance damages when compensation for a partial taking is based on the fair market value of the property taken. Justmann v. Portage County, 2005 WI App 9, 278 Wis. 2d 487, 692 N.W.2d 273, 03-3310.
Evidence regarding fear and safety concerns of natural gas transmission pipelines, electrical transmission lines, and oil and gasoline pipelines in partial takings cases is admissible if a qualified expert has successfully drawn the pertinent nexus in the calculation of damages between evidence of that fear and the fair market value of the property being condemned following the taking. Arents v. ANR Pipeline Co., 2005 WI App 61, 281 Wis. 2d 173, 696 N.W.2d 194, 03-1488.
Evidence of comparable sales is not the only relevant and admissible evidence in determining fair market value when available in a condemnation case. Arents v. ANR Pipeline Co., 2005 WI App 61, 281 Wis. 2d 173, 696 N.W.2d 194, 03-1488.
The requirement in sub. (6) to consider the “whole property" does not require that an individual assessment always treat contiguous, commonly-owned tax parcels separately or as a single unit, but requires that no portion of the property be left out of an assessment. When the property's highest and best use that affects its present market value is most appropriately appraised by considering the contiguous tax parcels separately, that is the appropriate appraisal method. Conversely, when the highest and best use is more adequately represented through an appraisal of the property as a single unit, that approach is appropriate. Spiegelberg v. State, 2006 WI 75, 291 Wis. 2d 601, 717 N.W.2d 641, 04-3384.
Under Wisconsin eminent domain law, courts apply the unit rule, which prohibits valuing individual property interests or aspects separately from the property as a whole. When a parcel of land is taken by eminent domain, the compensation award is for the land itself, not the sum of the different interests therein. Hoekstra v. Guardian Pipeline, LLC, 2006 WI App 245, 298 Wis. 2d 165, 726 N.W.2d 648, 03-2809.
The lessor under a long-term favorable lease who received no compensation for its leasehold interest under the unit rule when the fair market value of the entire property was determined to be zero was not denied the right to just compensation under article I, section 13, of the Wisconsin Constitution. City of Milwaukee Post No. 2874 Veterans of Foreign Wars v. Redevelopment Authority, 2009 WI 84, 319 Wis. 2d 553, 768 N.W.2d 749, 06-2866.
Wisconsin's project influence statute, sub. (5) (b), contains nothing about comparables. It simply states that any increase or decrease in the fair market value of the subject property caused by the public improvement may not be taken into consideration in determining just compensation. Sub. (5) (b) does not create a bright-line rule mandating that when evidence exists of comparable sales not impacted by a public improvement project, any sale alleged to be comparable that was made after the project plans were known that was located in whole or in part within the project footprint must be excluded as a matter of law. Spanbauer v. DOT, 2009 WI App 83, 320 Wis. 2d 242, 769 N.W.2d 137, 08-1165.
In easement condemnation cases, property owners are compensated for the loss in fair market value of their whole property. Pre-existing easement rights may be considered by a jury when determining just compensation. The circuit court's exclusion of evidence of existing easement rights was erroneous because evidence of those rights was highly probative of the difference in fair market value of the property before and after the new easement was condemned. Fields v. American Transmission Co., 2010 WI App 59, 324 Wis. 2d 417, 782 N.W.2d 729, 09-1008.
Evidence of environmental contamination and of remediation costs is admissible in condemnation proceedings under this chapter so long as it is relevant to the fair market value of the property. A property's environmental contamination and the costs to remediate it are relevant to the property's fair market value if they would influence a prudent purchaser who is willing and able, but not obliged, to buy the property. Liability for environmental contamination has no place in a condemnation proceeding under this chapter. 260 North 12th Street, LLC v. DOT, 2011 WI 103, 338 Wis. 2d 34, 808 N.W.2d 372, 09-1557.
Damages for a partial taking cannot include damages for the impact caused by loss of access to a highway if the loss of access resulted from the relocation of the highway, rather than from the taking. Damages are allowed under sub. (6g) only for loss that was a consequence of the particular taking. An award for a temporary limited easement cannot serve to bootstrap damages that emanate from a road relocation, especially when no land was taken and the property's boundaries were unchanged. 118th Street Kenosha, LLC v. DOT, 2014 WI 125, 359 Wis. 2d 30, 856 N.W.2d 486, 12-2784.
Section 84.25 (3) authorizes the Department of Transportation to change access to a highway designated as controlled access in whatever way it deems “necessary or desirable." In controlled-access highway cases, abutting property owners are precluded from compensation for a change in access under sub. (6) (b) as a matter of law. However, exercises of the police power cannot deprive the owner of all or substantially all beneficial use of the property without compensation. If the replacement access is so circuitous as to amount to a regulatory taking of the property, compensation is due, and the abutting property owner may bring an inverse condemnation claim under s. 32.10. Provision of some access preserves the abutting property owner's controlled right of access to the property. Reasonableness is not the standard to apply to determine if compensation is due under sub. (6) (b). Hoffer Properties, LLC v. DOT, 2016 WI 5, 366 Wis. 2d 372, 874 N.W.2d 533, 12-2520.
Special benefits means an “uncommon advantage" and has the same meaning under both sub. (3) and s. 66.0703 (1) (a), the special assessments statute. Under sub. (3), only those special benefits that affect the market value of a property because of a planned improvement are considered and used to offset the value of the property taken. In contrast, s. 66.0703 (1) allows a municipality to levy and collect a special assessment upon property for special benefits conferred on the property by an improvement, regardless of the improvement's effect on the property's market value. Because of this distinction, a municipality's failure to raise the issue of special benefits in an eminent domain action does not foreclose the municipality's ability to levy and collect a special assessment upon a property for special benefits conferred. CED Properties, LLC v. City of Oshkosh, 2018 WI 24, 380 Wis. 2d 399, 909 N.W.2d 136, 16-0474.
Although 118th Street Kenosha, LLC, 2014 WI 125, involved the “taking of an easement" under sub. (6g), that court's statutory construction analysis applies equally to a “partial taking of property" under sub. (6). The damages authorized by subs. (6) and (6g) must be caused by “a partial taking of property" under sub. (6) or caused by “the taking of an easement" under sub. (6g). In this case, it was undisputed that the partial taking of property was not the cause of the damages the plaintiffs sought. Therefore, the plaintiffs were not entitled to loss-of-access damages under sub. (6). James & Judith Nonn Trust v. DOT, 2019 WI App 29, 388 Wis. 2d 53, 930 N.W.2d 668, 18-0888.
Sub. (6g) does not apply to temporary limited easements; its application is limited to permanent easements. Temporary limited easements must be compensated under constitutional and common law principles. Backus v. Waukesha County, 2022 WI 55, 402 Wis. 2d 764, 976 N.W.2d 492, 20-0307.
The owner of condemned property is not entitled to the cost of developing functionally equivalent substitute facilities. United States v. 564.54 Acres of Land, 441 U.S. 506, 99 S. Ct. 1854, 60 L. Ed. 2d 435 (1979).