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Eminent domain cases on the rise

By Jack Zemlicka
Dolan Media Newswires

It seems impossible to drive anywhere in Wisconsin without encountering roadwork.

Federal stimulus money has accelerated several highway and city street projects in the state, and the work beyond those orange barrels is expected to create more green for condemnation lawyers.

“It’s kind of exploding,” said attorney Brian C. Sajdak, of Wesolowski, Reidenbach & Sajdak SC in Franklin.

Sajdak is working with the village of Hales Corners and the city of Franklin on a pair of planned overhauls to Highway 100 and South 27th Street, two major streets in metro Milwaukee.

In addition to advising on the acquisition of public and private property along the construction routes, Sajdak is working on tax assessment issues and property transfer agreements.

“In the next year, we’re going to see more of those projects getting to the point where acquisitions are going to take place,” he said. “And issues like how much money is involved and environmental concerns have to be addressed first.”

Milwaukee real estate attorney Charles P. Graupner dedicates about 50 percent of his practice to eminent domain issues. He represents a landowner challenging a plan to build an entrance ramp on Highway 43 in Sheboygan County for Whistling Straits Golf Course.

“It’s an interesting case because the ramp would only be open one week a year and it creates the question of whether the project is public or private use,” said Graupner, of Michael Best & Friedrich LLP.

Because cities and the state are aggressively looking to acquire property to advance projects, there’s a risk that landowners will be offered less than fair market prices for their property, said eminent domain attorney Michael R. Bauer.

The result: more litigation.

“Some of the appraisals I see from consultants hired by the state are way off on fair market value, and we have no choice but to litigate,” said Bauer, of Bauer & Bach LLC in Madison.

He is challenging a proposed roundabout in the village of Waunakee on behalf of a gas station, arguing that the project will reduce traffic flow and ultimately business at the busy intersection.

Bauer, a former supervisor at the Department of Transportation, said the state is contracting with independent appraisers, and that has contributed to lower offers.

“I think the trend is away from state employees being involved as much,” he said.

Sajdak, who works for both municipalities and private entities, said one of the elements driving business for attorneys on both sides is that clients have a “real concern or uneasiness about projects that are still in the planning stages.”

“The biggest issue I’m seeing now is landowners asking, ‘If I improve my property realizing it will be acquired, am I shooting myself in the foot with how much I’ll be able to recover down the road?’” he said.

One comment

  1. What property owners are seeing in Wisconsin and elsewhere is that the notion of “public good” is corrupted in today’s interpretation of eminent domain; plus the fact that there is a lot of play in the “just” of just compensation.

    Several states — including New York and Pennsylvania — will see more eminent domain “takings” thanks to the rising interest in natural gas drilling in the gas-rich Marcellus Shale. With more drilling comes more pipelines and more underground gas storage fields — and that (pipelines & storage fields) always means eminent domain.

    The excellent Institute for Justice (of Kelo fame) declines to intervene in energy/utility “takings” because, they told me, of the “public good” premise.

    But property owners can fight back. Our two-year battle against Houston-based Spectra Energy which seized our property rights for an underground gas storage field led to the development of a website which has begun to attract whistle blowers inside the energy industry. We are collaborating and helping property owners in many states. For info, visit the site: http://www.spectraenergywatch.com/blog/

    By the way, our new neighbor, Spectra Energy, has received two Notice of Violations for “unlawful conduct” related to emergency shutdowns and emissions at its storage field in Bedford County, PA. Reports of contaminated water supplies are on the rise since they began operations.

    The ripple effects of eminent domain are never over.

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