Scott N. Waller v. American Transmission Company, LLC

2013 WI 77SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP805 & 2012AP840
COMPLETE TITLE: Scott N. Waller and Lynnea S. Waller,
Plaintiffs-Respondents,
v.
American Transmission Company, LLC,
Defendant-Appellant.
ON BYPASS FROM THE COURT OF APPEALS
OPINION FILED: July 16, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: April 10, 2013
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Walworth
JUDGE: James L. Carlson
JUSTICES:
CONCURRED:
DISSENTED: BRADLEY, J., ABRAHAMSON, C.J., dissent. (Opinion
filed.)
NOT PARTICIPATING: GABLEMAN, J., did not participate.
ATTORNEYS:
For the defendant-appellant, there were briefs by Katherine
Stadler, Bryan J. Cahill, and Godfrey & Kahn, S.C., Madison, and
oral argument by Katherine Stadler.
For the plaintiffs-respondents, there were briefs by Hugh
R. Braun, Nicholas R. DiUlio, and Godfrey, Braun & Frazier, LLP,
Milwaukee, and oral argument by Hugh R. Braun.
There was an amicus curiae brief by Trevor J. Will, Bradley
D. Jackson, Krista J. Sterken, and Foley & Lardner, LLP,
Madison, on behalf of the Wisconsin Utilities Association.
2013 WI 77NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP805 & 2012AP840
(L.C. No. 2008CV520 & 2010CV691)
STATE OF WISCONSIN : IN SUPREME COURT
Scott N. Waller and Lynnea S. Waller,
Plaintiffs-Respondents,
FILED
v.
JUL 16, 2013
American Transmission Company, LLC,
Diane M. Fremgen
Defendant-Appellant. Clerk of Supreme Court
APPEAL from final judgments of the Circuit Court for
Walworth County, James L. Carlson, Judge. Affirmed.
¶1 DAVID T. PROSSER, J. This case is before the court
on a petition for bypass of the court of appeals pursuant to
Wis. Stat. (Rule) § 809.60 (2011–12).1 We are asked to interpret
the condemnation procedures in Wis. Stat. § 32.06 and determine
the rights of property owners who claim that a taking of
property has left them with an "uneconomic remnant."
1
All subsequent references to the Wisconsin Statutes are to
the 2011-12 version unless otherwise indicated.
No. 2012AP805 & 2012AP840
¶2 American Transmission Company, LLC (ATC) condemned a
pair of easements on the residential property of Scott and
Lynnea Waller (the Wallers) to facilitate the construction and
placement of high-voltage transmission lines. The Wallers
claimed that the easements diminished the value of their
property so much that they were left with an uneconomic remnant.
The Wallers contend that they are entitled to certain rights as
the owners of property that has substantially impaired economic
viability as a result of a partial taking.
¶3 The Walworth County Circuit Court2 agreed with the
Wallers, concluding that their property, after the taking of the
easements, was an uneconomic remnant. It ordered ATC to acquire
the entire property. The circuit court also awarded the Wallers
litigation costs and relocation expenses as "displaced persons"
when they moved from the property after the taking.
¶4 The specific issues before this court are as follows:
(1) At what point in a Wis. Stat. § 32.06condemnation proceeding must a property owner raise an
uneconomic remnant claim?
(2) Were the Wallers left with an uneconomic
remnant after ATC took two easements on their
property?
(3) Are the Wallers entitled to litigation
expenses?
(4) Are the Wallers "displaced persons,"
entitling them to relocation benefits?
2
Judge James L. Carlson, presiding.
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No. 2012AP805 & 2012AP840
¶5 We affirm the circuit court and reach the following
conclusions.
¶6 First, Wis. Stat. § 32.06(5), the "right-to-take"
provision, sets out the proper and exclusive way for a property
owner to raise a claim that the owner will be left with an
uneconomic remnant after a partial taking by the condemnor. An
uneconomic remnant claim should be brought under § 32.06(5)
because the condemnor has failed to include an offer to acquire
any uneconomic remnant in the condemnor's jurisdictional offer.
The inclusion of an offer to acquire an uneconomic remnant
acknowledges the existence of the uneconomic remnant. The
exclusion of such an offer indicates that the condemnor disputes
the existence of an uneconomic remnant. A right-to-take action
must be decided promptly by the court and shall not prevent the
condemnor from filing a simultaneous valuation petition,
proceeding thereon, and taking any property interest whose
condemnation is not being directly contested by the owner. A
right-to-take action on an uneconomic remnant claim is designed
to protect an owner's right to fair compensation to avoid
economic hardship, not to paralyze public interest takings under
eminent domain.
¶7 Second, the Wallers' property, after ATC took two
easements for transmission lines, is an uneconomic remnant
because it is of such size, shape, and condition as to be of
substantially impaired economic viability as either a
residential or an industrial parcel. The taking of the two
easements drastically reduced the portion of the Wallers'
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No. 2012AP805 & 2012AP840
property not subject to a servitude. The easements themselves
not only restricted the Wallers' activity in the easement area
but also substantially diminished the desirability,
practicality, and value of the Wallers' property for either a
residential or industrial user.
¶8 Third, the Wallers prevailed on their uneconomic
remnant claim brought under Wis. Stat. § 32.06(5)——the right-to-
take statute——and, therefore, were entitled to litigation
expenses under Wis. Stat. § 32.28.
¶9 Finally, the Wallers were displaced persons under Wis.
Stat. § 32.19(2)(e)1.a. because they moved "as a direct result"
of ATC's jurisdictional offer, and the circuit court's findings
of fact on this issue are not clearly erroneous.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶10 These consolidated cases3 come before the court with a
long and complicated history; the uneconomic remnant claim alone
has been the subject of three proceedings before the circuit
court and two appeals before the court of appeals. We begin
with background information on the Waller property, ATC, and the
negotiations between the two parties before ATC's jurisdictional
offer to acquire the two easements for its transmission lines.
Second, we summarize the Wallers' right-to-take action, along
with ATC's simultaneous petition to determine just compensation
3
This petition for bypass is composed of two cases
consolidated for purposes of appeal. The first case, 2008CV520
(No. 2012AP805) is the Wallers' relocation benefits case. The
second case, 2010CV691 (No. 2012AP840) is the Wallers' right-to-
take action.
4
No. 2012AP805 & 2012AP840
for the taking of the easements. Third, we examine the holding
and reasoning in the first court of appeals decision, Waller v.
American Transmission Co., LLC, 2009 WI App 172, 322
Wis. 2d 255, 776 N.W.2d 612 (Waller I). Fourth, we explain the
circuit court proceedings after the first remand from the court
of appeals. Fifth, we examine the holding and reasoning in the
second court of appeals decision, Waller v. American
Transmission Co., LLC, 2011 WI App 91, 334 Wis. 2d 740, 799
N.W.2d 487 (Waller II). Sixth, we recount the proceedings in
the circuit court on the uneconomic remnant issue after the
second remand. Finally, we examine the circuit court's findings
and conclusions on the issues of litigation expenses and
relocation benefits.
A. The Waller Property and ATC
¶11 In 1989 the Wallers purchased a 1.5 acre triangular
lot in the Town of Delavan in Walworth County. The property is
bounded on the east by Interstate 43, on the north by Mound
Road, and on the west by a vacant lot. The property——zoned A-1
Agricultural——includes a single-family residence, site
improvements, landscaping, and outbuildings.
¶12 The Waller property had several encumbrances burdening
it before the easements taken by ATC. First, a transmission
line with a 20-foot-wide easement burdened the property along
Mound Road on the north before the Wallers purchased the
property. Second, the property was subject to highway setbacks
along both Mound Road (25 feet) and Interstate 43 (50 feet).
5
No. 2012AP805 & 2012AP840
¶13 For almost 20 years, the rural farmette served as the
Wallers' home.4 However, in the years since 1989 the character
of the land surrounding the Wallers' property changed. By 2008
nearby land that was once agricultural became an industrial
park.
¶14 ATC is a Wisconsin limited liability company and
public utility regulated by the Public Service Commission of
Wisconsin (the PSC)5 and the Federal Energy Regulatory
Commission. The legislature authorized the creation of ATC and
designated it as a "public utility," an electric "transmission
company," and a "transmission utility." Wis. Stat.
§§ 196.01(5), 196.485(1)(ge), 196.485(1)(i). See also 1999 Wis.
Act 9. Wisconsin Stat. § 32.02(5)(b) vests entities like ATC
with the power of eminent domain.
¶15 Public utilities may not undertake work on a project
like a high-voltage transmission line unless they have obtained
the requisite approval from the PSC and the Department of
Natural Resources (the DNR). See Wis. Stat. § 196.491(3)
(requiring the PSC to issue a certificate of public convenience
and necessity before the construction of a "facility" like a
4
The Wallers used their property to raise chickens and
turkeys and pasture sheep. The Wallers also had an extensive
garden on the property.
5
The Public Service Commission (PSC) "has jurisdiction to
supervise and regulate every public utility in this state and to
do all things necessary and convenient to its jurisdiction."
Wis. Stat. § 196.02(1). See also Indus. Energy Grp. v. Pub.
Serv. Comm'n, 2012 WI 89, ¶26, 342 Wis. 2d 576, 819 N.W.2d 240.
6
No. 2012AP805 & 2012AP840
high-voltage transmission line). Thus, when ATC proposed an
upgrade and expansion of an existing transmission line in and
around the City of Delavan, the statutes required administrative
proceedings before the PSC and the DNR. One of the proceedings
included a public hearing at the PSC in Madison at which Scott
Waller testified. He expressed concern about possible health
hazards and impairment of property values resulting from the
placement of high-voltage transmission lines affecting two sides
of his property.
¶16 Ultimately, on March 30, 2006, the PSC issued ATC a
certificate of public convenience and necessity for the
utility's project. The PSC determined that the upgrade and
expansion of transmission lines "[would] not have undue adverse
impacts on . . . public health and welfare."
¶17 Having received the requisite regulatory approval, ATC
proceeded to acquire the land and easements needed to advance
the project. These acquisitions included the easements on the
Waller property.
¶18 As explained previously, the Waller property was
already burdened by a 20-foot-wide easement from an existing
transmission line on the north side along Mound Road, highway
setbacks along Mound Road, and highway setbacks along Interstate
43.
¶19 ATC sought to purchase two easements on the Waller
property. The first easement would overlay the existing
transmission line easement on the north side of the property,
but widen the easement to 45 feet——an extension of 25 feet over
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No. 2012AP805 & 2012AP840
the existing easement. The second easement would be 45 feet
wide and run along the east side of the property——within the 50
foot highway setback from Interstate 43. In addition, ATC
sought to install a large utility pole in the northeast corner
of the property to support conductor wires and distribution
lines.6
¶20 Pursuant to Wis. Stat. § 32.06(2)(a),7 ATC retained
John Rolling (Rolling) of Rolling & Co. to conduct an appraisal
6
The easement authorized ATC to do the following:
"Construct, install, operate, maintain, repair, replace,
rebuild, remove, relocate, inspect and patrol a line of
structures, comprised of wood, concrete, steel or of such
material as Grantee may select, and wires, including associated
appurtenances for the transmission of electric current,
communication facilities and signals appurtenant thereto."
The easement also granted ATC the associated necessary
rights to:
(1) Enter upon the easement strip for the
purposes of exercising the rights conferred by this
easement. (2) Construct, install, operate, maintain,
repair, replace, rebuild, remove, relocate, inspect
and patrol the above described facilities and other
appurtenances that the Grantee deems necessary. (3)
Trim, cut down and remove any or all brush, trees and
overhanging branches now or hereafter existing on said
easement strip. (4) Cut down and remove such trees
now or hereafter existing on the property of the
Landowner located outside of said easement strip which
by falling might interfere with or endanger said
line(s), together with the right, permission and
authority to enter in a reasonable manner upon the
property of the Landowner adjacent to said easement
strip for such purpose.
7
Wis. Stat. § 32.06(2)(a) provides: "The condemnor shall
cause at least one . . . appraisal to be made of the property
proposed to be acquired."
8
No. 2012AP805 & 2012AP840
of the property. Rolling concluded that the property's
appraised value before the easements was $130,000.8 With regard
to the effects of the easements, Rolling wrote:
We believe there will be an immediate negative
effect on residential appeal. Over one half of the
property will be under easement. The [property] will
have major transmission lines along two of its three
sides. The transmission lines will be within 60
[feet] of the house. A substantial part of the
landscaping will have been lost. Our before analysis
suggested a property which was already in transition
from improved residential use to vacant industrial lot
use. We believe the installation of the transmission
line pole and the lines themselves brings this
property to the tipping point from residential appeal
toward light industrial appeal. It is more likely
that the next buyer of this property will be an
industrial developer rather than a residential user.
We conclude that the residential improvements are
rendered totally obsolete. Highest and best use
changes from improved residential to vacant industrial
land.
Consequently, Rolling concluded that the Waller property's
appraised value after the easements was $55,500——a loss of
$74,500, or nearly 57 percent loss in value. Rolling allotted
an additional $7,500 to demolish the residential improvements.
¶21 The Wallers retained their own appraisers, Arthur
Sullivan and Kurt Kielisch of Appraisal Group One (Group One).
Group One concluded that the before-easement value of the
property was $132,000, very similar to Rolling's before-easement
8
Of the $130,000 before-easement appraisal, Rolling
allocated $75,500 to value of the land and $54,500 to value of
the improvements.
9
No. 2012AP805 & 2012AP840
appraised value. However, Group One came to a very different
conclusion on the after-easement value of the Waller property.
¶22 In determining the after-easement value, Group One
considered the property use for industrial and residential
purposes. In light of the neighboring industrial land uses,
Group One considered the Waller property to have its highest and
best use as "vacant for industrial purposes." However, Group
One noted that the property's triangular shape and small size
"negatively impact[ed] its desirability as an industrial site at
this time." Thus, Group One concluded that the current
improvements "contribute significant value to its ongoing use as
a residential property, despite the changing land use and city
expansion surrounding it." In either case, following the
encumbrance of the property by two 45-foot-wide easements, the
property's use would be restricted further for either industrial
or residential purposes.9 Altogether, Group One estimated that
the easements would cover approximately 0.8 acres of land and
would produce in that area a 100 percent loss in value.
Consequently, Group One concluded that:
Granting [the two easements to ATC] reduces the
property owner's right to enjoy their property and
utilize it to its fullest use. Due to the restricted
use of the property and the giving up of the right to
control the easement area, it is concluded that the
9
In particular, Group One pointed to restrictions on owner
usage in the easement area (i.e., inability to build structures,
store certain wares, plant trees or shrubs). Furthermore, the
property's size and shape limitations, while already creating
development limitations, would be further restricted for either
industrial or residential users.
10
No. 2012AP805 & 2012AP840
easement area represents a 100% loss of property value
to the property owner.
Thus, Group One estimated the after-easement value of the total
property to be only $15,500——resulting in a loss of $116,500, or
88 percent of the before easement value.
¶23 Kurt Kielisch later supplemented Group One's initial
appraisal, stating his opinion that the Waller property
"suffered substantial[ly] impaired economic viability as a
result of the taking of the transmission line easement." Mr.
Kielisch based his opinion, in part, on the following: ATC's
jurisdictional offer indicated a value of $30,500 for the
property, reflecting a loss of value of more than 76 percent;
the easement area covered more than half of the property;
"public perceptions of the dangers of electric magnetic fields";
the appearance and proximity of the high-voltage transmission
lines; the highest and best use of the property after the taking
would be vacant industrial; and the inability of the parcel to
be utilized for industrial purposes in the absence of municipal
sewer and water.
¶24 After the Rolling and Group One appraisals, ATC made
several offers to the Wallers. See Wis. Stat. § 32.06(2a)
(requiring the condemnor, before making a jurisdictional offer,
to negotiate personally with a property owner). Initially, on
October 8, 2007, ATC offered to acquire only the easements for
$49,000. The Wallers rejected that offer. Next, ATC raised its
offer for only the easements to $84,600, which the Wallers also
rejected. Later, on March 14, 2008, after receiving the Group
11
No. 2012AP805 & 2012AP840
One appraisal, ATC again raised its offer for the easements to
$99,500. In the alternative, ATC offered to purchase the entire
Waller property for $132,000, provided the Wallers waived the
right to any relocation benefits. The Wallers rejected that
offer as well.
¶25 Finally, on March 20, 2008, ATC made a jurisdictional
offer to the Wallers of $99,500 for only the two easements. The
Wallers rejected the jurisdictional offer.
B. The First Circuit Court Decision: The Wallers'
Right-to-Take Action and the Just Compensation Proceeding
Initiated by ATC
¶26 On April 25, 2008, the Wallers filed a right-to-take
action under Wis. Stat. § 32.06(5). The Wallers did not
challenge ATC's right to take the easements. They argued
instead that because the proposed easements would cover more
than half of their property and render their residential
improvements totally obsolete, they would be left with an
uneconomic remnant under § 32.06(3m). In short, the Wallers did
not argue that the ATC was taking too much, but that ATC was
trying to get away with taking too little. The Wallers'
complaint claimed that "the proposed acquisition by ATC compels
a total acquisition with a guarantee of attendant relocation
benefits pursuant to . . . Wis. Stat. § 32.19." Then, raising
the stakes, the Wallers asked the circuit court to prohibit the
proposed acquisition of the easements until ATC agreed to
acquire the entire property and provide relocation benefits.
12
No. 2012AP805 & 2012AP840
¶27 Four days after the Wallers filed their right-to-take
action, ATC filed a verified petition for condemnation
proceedings, pursuant to Wis. Stat. § 32.06(7).10 ATC asked the
circuit court for hearings before the Walworth County
Condemnation Commission (the Commission) to determine just
compensation for the taking of the easements.11 At the same
time, ATC petitioned the circuit court for immediate possession
of the easements pursuant to Wis. Stat. § 32.12(1). The circuit
court, Robert J. Kennedy, Judge, granted the petitions,
assigning the case to the Commission and allowing ATC to take
immediate possession without a hearing.12
¶28 The Commission held a hearing on June 11, 2008, on
valuation questions to determine an award. Ultimately, the
Commission concluded that the fair market value of the Waller
10
2008GF78, Walworth County, Consolidated Court Automated
Program (CCAP). Initially, the Wallers' right-to-take action
was consolidated with the two petitions of ATC on just
compensation and immediate possession.
11
ATC's petition for condemnation proceedings and the
subsequent award of just compensation became the subject of
appeal by the Wallers. Ultimately, the Wallers' appeal of the
Commission's award became 2008CV955, the valuation case. The
appeals of the right-to-take action and the relocation benefits
case implicate the valuation case; however, neither party has
appealed the jury verdict in the valuation case, where the jury
determined that the value of the Waller property was $38,000.
12
Shortly after ATC filed its petition for condemnation
proceedings and to take immediate possession, the Wallers moved
the circuit court for an expedited hearing on their right-to-
take action and for a temporary injunction preventing ATC from
proceeding on their petitions. The circuit court rejected the
Wallers' motion, concluding that there was no reason to prevent
ATC from obtaining immediate possession of the easements.
13
No. 2012AP805 & 2012AP840
property before the taking of the easements was $130,000, that
the value was reduced to $40,000 after the taking, and that the
Wallers should be awarded $90,000. The Wallers ultimately
accepted this amount from ATC in January 2009 but appealed the
Commission's award to the circuit court.
¶29 The circuit court, again presided over by Judge
Kennedy, dismissed the Wallers' right-to-take action on November
8, 2008, five months after the Commission finished its
valuation. The circuit court concluded that an uneconomic
remnant claim should be decided in a valuation proceeding, not
in a right-to-take action. The Wallers appealed the dismissal
of their complaint.
C. Waller I: The First Appeal
¶30 The sole issue before the court of appeals was
"whether the question of the existence of an uneconomic remnant
is properly raised in an action under Wis. Stat. § 32.06(5)."
Waller I, 322 Wis. 2d 255, ¶10.
¶31 The Wallers argued that Wis. Stat. § 32.06(5) provides
the only opportunity for a property owner to challenge a taking
on the ground that it was incomplete because it left an
uneconomic remnant. Id., ¶13. The court of appeals found this
argument persuasive in light of the plain language of § 32.06(5)
(allowing for challenges for any reason other than just
compensation), as well as the statutory scheme. Id., ¶¶13–16.
Although conceding that "an uneconomic remnant seems to require
valuation," the court of appeals reasoned that "before
compensation can be set, there must be a determination of what
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No. 2012AP805 & 2012AP840
is being taken." Id., ¶¶13–14. The uneconomic remnant
determination in § 32.06(5) "permits the court and the
[condemnation] commission to 'devote full attention' to the
crucial issue of just compensation 'without having the
deliberation deflected into consideration of collateral
procedural matters.'" Id., ¶14 (quoting Rademann v. DOT, 2002
WI App 59, ¶38, 252 Wis. 2d 191, 642 N.W.2d 600). In other
words, the property owner must know the "scope of the
acquisition before the question of compensation is negotiated."
Id.¶32 The court of appeals also held that a property owner
asserting the existence of an uneconomic remnant after a taking
"must have the right to contest a condemnation that does not
acknowledge an uneconomic remnant." Id., ¶15. The claim of an
uneconomic remnant, the court of appeals posited, "is not a
meaningless exercise swallowed up in the compensation process,"
but a property owner's assertion to protect his or her rights.
Id., ¶16.
¶33 Therefore, the court of appeals remanded the case to
the circuit court, directing it to reinstate the Wallers' right-
to-take claim and to determine whether ATC's taking created an
uneconomic remnant. "If so," the court of appeals concluded,
"ATC is required, under [Wis. Stat.] § 32.06(3m), to make a
concurrent offer for the remnant and to provide relocation
benefits . . . directed by Wis. Stat. § 32.19." Id., ¶17.
D. Post-Waller I: The Valuation Trial and
Second Decision on the Wallers' Uneconomic Remnant Claim
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No. 2012AP805 & 2012AP840
¶34 After remand, the circuit court, with Judge John R.
Race presiding over both the right-to-take and valuation cases,
chose to postpone a hearing on the uneconomic remnant claim
until after the jury's verdict in the valuation appeal.13
¶35 The circuit court conducted a three-day jury trial on
the Wallers' appeal of the Commission's award of just
compensation. The jury concluded the before taking value of the
property at $132,000 and an after taking value at $38,000. The
resulting just compensation award was $94,000, which the Wallers
did not appeal.
¶36 After the valuation jury trial, the circuit court
incorporated both the record and the verdict from the jury trial
into the recently reinstated right-to-take action by the
Wallers. The circuit court found that the Wallers resided in
their house for approximately one year after ATC took the
easements; that people could still reside in the Waller house;
that the property was of sufficient size to allow for meaningful
use; and that the property and improvements had substantial
value after the taking. Therefore, the circuit court ruled
that, as a matter of law, the property after the taking of the
easements was not an uneconomic remnant.
13
The Wallers petitioned the court of appeals for a writ of
mandamus, arguing that the order of determination chosen by the
circuit court violated the court of appeals mandate in Waller v.
American Transmission Co., LLC, 2009 WI App 172, 322
Wis. 2d 255, 776 N.W.2d 612 (Waller I). The court of appeals
denied the petition, concluding that the circuit court did not
violate a plain legal duty mandated in Waller I.
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No. 2012AP805 & 2012AP840
¶37 The circuit court dismissed the Wallers' complaint and
the Wallers appealed.
E. Waller II: The Second Appeal
¶38 Once again, the court of appeals reversed the circuit
court. Waller II, 334 Wis. 2d 740. The court of appeals held
that
when a property owner properly raises the issue of
whether he or she will be left with an uneconomic
remnant pursuant to Wis. Stat. § 32.06(3m), a circuit
court must first hold an evidentiary hearing under
§ 32.06(5) to determine whether the remaining parcel
is an uneconomic remnant. A fact finder may not
determine just compensation until the circuit court
has resolved the full scope of the taking.
Id., ¶2.
¶39 As it did previously in Waller I, the court of appeals
acknowledged the difficulty of separating the question of the
existence of an uneconomic remnant and the question of value of
the remnant. Id., ¶14. However, determining the existence of
an uneconomic remnant is "not just a question of value——a
circuit court must also determine whether the property is 'of
substantially impaired economic viability.'" Id. (quoting Wis.
Stat. § 32.06(3m)). The court of appeals concluded that the
circuit court failed to address whether the Waller property was
"substantially impaired" as to its economic viability. Id.Significantly, the court of appeals stated that "the inquiry
does not end once the dollar value of the remaining property is
determined——a circuit court is also expected to examine whether
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No. 2012AP805 & 2012AP840
the partial taking 'substantially impaired [the] economic
viability' of the property." Id., ¶15 (alteration in original).
¶40 Thus, the court of appeals reversed and remanded to
the circuit court for a hearing consistent with its decision.
Id., ¶17. Also, the court of appeals ruled that "[i]f the
circuit court finds that the Wallers' property is an uneconomic
remnant, the jury's just compensation verdict is vacated." Id.
F. Post-Waller II: The Third Decision on the Wallers'
Uneconomic Remnant Claim and Litigation Costs
¶41 Following the second remand from the court of appeals,
the circuit court, Judge James L. Carlson now presiding, held a
two-day trial in the right-to-take case on whether an uneconomic
remnant existed. The trial was held in November 2011. For the
most part, the same witnesses who testified in the valuation
trial testified at the right-to-take trial, and the testimony
was largely the same.
¶42 At the conclusion of this trial, Judge Carlson ruled
that the taking did indeed leave the Wallers with an uneconomic
remnant. The circuit court found that the property suffered
"substantially impaired economic viability" because: (1) the
jurisdictional offer of $99,500 set damages to the property at
76 percent of the agreed upon $130,000 pre-taking value; (2)
both appraisers agreed that the taking made the value of the
residential improvements obsolete because the highest and best
use after taking was vacant industrial land; (3) after the
activation of both transmission line, the Wallers experienced
regular electronic interference that prompted concern for
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No. 2012AP805 & 2012AP840
themselves, their family, and potential buyers; and (4) the
removal of shrubbery and trees within the easement
"substantially reduced the attractiveness of the site" and
eliminated a sound barrier between the home and Interstate 43.
¶43 The circuit court entered final judgment for the
Wallers, imposing an additional $47,509.72 on ATC to acquire the
entire Waller property and ordering the Wallers to quitclaim the
property to ATC. ATC appealed the judgment.
¶44 After an additional two-day hearing, the circuit court
awarded the Wallers $211,261.74 in litigation expenses. The
court found that ATC conditioned the purchase of all the
Wallers' property on whether the Wallers waived any right to
relocation expenses. On the basis of this finding, the court
determined that ATC failed to negotiate in good faith. The
court also ruled that, when a condemnor fails to "resolve the
issue of the uneconomic remnant prior to [making the
jurisdictional offer]," the cost of litigation shifts to the
condemnor. The circuit court determined that both scenarios
applied in this case. ATC challenges the award of litigation
costs in this appeal.
G. The Relocation Benefits Case
¶45 On December 18, 2008, the Wallers filed a claim with
ATC for relocation benefits, which ATC denied. On August 15,
2009, the Wallers moved to a new permanent residence in the Town
of Sharon in Walworth County——after the high-voltage
transmission lines had been installed and fully charged.
19
No. 2012AP805 & 2012AP840
¶46 On April 30, 2010, the Wallers filed a complaint with
the circuit court claiming the right to recover relocation
costs. The circuit court, Judge Carlson presiding, held a one-
day trial on the issue on January 25, 2012.
¶47 During the trial, Scott Waller testified that the
decision to move resulted from ATC's jurisdictional offer of
$99,500 and the report of ATC's appraiser, Rolling, that the
easements destroyed the value of the residential improvements on
the land. Waller testified further that he and his wife started
looking for a new home in February 2008——a month before the
jurisdictional offer——and made an offer to purchase their Town
of Sharon property the following November.14
¶48 Jack Sanderson, a relocation specialist with the
Wisconsin Department of Commerce, also testified. Sanderson
evaluated the Wallers' claim for relocation benefits. He opined
that the Wallers were displaced persons because "their home was
no longer safe, decent or sanitary," and that it had "been
degraded to an industrial lot." However, Sanderson admitted
that he relied on "common sense" and a dictionary definition of
"decent" and not on any definition in the administrative code.
¶49 At the conclusion of the trial, the circuit court
ruled that the Wallers were displaced persons under Wis. Stat.
§ 32.19(2)(e)1.a. and entitled to relocation benefits. The
14
On cross-examination, Scott Waller testified that he had
considered moving to a new home even before he learned of the
transmission line upgrade and expansion, based on a desire for
larger property and more building space.
20
No. 2012AP805 & 2012AP840
court found that the Wallers sustained $26,350 in costs
associated with the acquisition of relocation property and
entered judgment in that amount.15
¶50 ATC appealed the right-to-take and relocation cases
and petitioned this court to bypass the court of appeals. The
court granted the petition on January 14, 2013.
II. STANDARD OF REVIEW
¶51 In this case, the court must interpret various
provisions of Wis. Stat. ch. 32's condemnation procedure.
Statutory interpretation is a question of law that this court
reviews de novo. Weborg v. Jenny, 2012 WI 67, ¶41, 341
Wis. 2d 668, 816 N.W.2d 191 (citations omitted).
¶52 The court also is asked to apply statutory provisions
on condemnation to certain facts. The application of a statute
to the facts of the case is a question of law that we review de
novo. Warehouse II, LLC v. DOT, 2006 WI 62, ¶4, 291 Wis. 2d 80,
715 N.W.2d 213 (citing State v. Reed, 2005 WI 53, ¶13, 280
Wis. 2d 68, 695 N.W.2d 315). As usual, the court benefits from
the analyses of the circuit court and court of appeals. Id.(citing State v. Cole, 2003 WI 59, ¶12, 262 Wis. 2d 167, 663
N.W.2d 700). "Findings of fact shall not be set aside unless
clearly erroneous, and due regard shall be given to the
15
Wisconsin Stat. § 32.19(4)(a) capped relocation benefit
costs for the Wallers at a maximum of $25,000, but the circuit
court also permitted an additional $1,350 for the cost of
moving, pursuant to then-Wis. Admin. Code § COMM 202.54.
21
No. 2012AP805 & 2012AP840
opportunity of the trial court to judge the credibility of the
witnesses." Wis. Stat. § 805.17(2).
III. DISCUSSION
¶53 Before we address the arguments of counsel, we think
it is useful to summarize the condemnation process in Wisconsin.
A. Statutory Overview of the Wis. Stat. ch. 32
Condemnation Process
¶54 The Fifth Amendment to the United States Constitution
provides, in pertinent part: "[N]or shall private property be
taken for public use, without just compensation." U.S. Const.
amend. V. The Takings Clause of the Fifth Amendment is applied
to the states through the Fourteenth Amendment. Stop the Beach
Renourishment, Inc. v. Fla. Dep't of Envtl. Prot., ___ U.S. ___,
130 S.Ct. 2592, 2597, 177 L.Ed. 2d 184 (2010); Chi., Burlington
& Quincy R.R. Co. v. Chi., 166 U.S. 226, 239 (1897). Article I,
Section 13 of the Wisconsin Constitution provides, "The property
of no person shall be taken for public use without just
compensation therefor." Wis. Const. art. I, § 13.
¶55 A "taking"——or condemnation——of private property for
public use requires the award of just compensation under both
the United States and Wisconsin constitutions. E-L Enters. v.
Milwaukee Metro. Sewage Dist., 2010 WI 58, ¶21, 326 Wis. 2d 82,
785 N.W.2d 409 (citing Zinn v. State, 112 Wis. 2d 417, 424, 334
N.W.2d 67 (1983); Howell Plaza, Inc. v. State Highway Comm'n, 92
Wis. 2d 74, 80, 284 N.W.2d 887 (1979)).
22
No. 2012AP805 & 2012AP840
¶56 As a general rule,16 condemnation powers in Wisconsin
are set out in Wis. Stat. ch. 32, "Eminent Domain." Condemnors
are divided into two categories depending on the purpose for
which they seek to acquire property. Each category follows a
separate procedural track, although the two tracks share many
common procedures.
¶57 Condemnors use Wis. Stat. § 32.05, known as the
"quick-take" statute,17 for condemning property related to sewer
and transportation projects. Other condemnors utilize Wis.
Stat. § 32.06, the "slow-take" statute, which is the "catch-all"
for condemnations not covered by § 32.05.
¶58 Wisconsin's condemnation procedures underwent
significant revisions in 1959. Ch. 639, Laws of 1959; Falkner
v. N. States Power Co., 75 Wis. 2d 116, 120, 248 N.W.2d 885(1977). Based on the legislative revisions,
[i]t is apparent that the legislature intended to
create two independent proceedings relating to
["catch-all"] condemnation, an owner's action in
circuit court under sec. 32.06(5), Stats., and the
condemnation proceeding before a judge under sec.
32.06(7). From sec. 32.06(5) it is clear that the two
proceedings may go on simultaneously.
16
Exceptions to the general powers and procedures in Wis.
Stat. ch. 32 are Wis. Stat. § 157.50 (condemnation powers
established for municipalities to acquire land for municipal
cemeteries) and Wis. Stat. ch. 197 (acquisition of public
utilities by municipal utilities).
17
"Quick-take proceedings are intended to permit the
immediate transfer of possession and title to condemnors while
protecting the rights of landowners." 27 Am. Jur. 2d Eminent
Domain § 687 (2004) (footnote omitted).
23
No. 2012AP805 & 2012AP840
Falkner, 75 Wis. 2d at 120.
1. Who May Condemn, Negotiation Between the Parties,
and the Jurisdictional Offer
¶59 Wisconsin Stat. § 32.02 enumerates entities that have
the power to condemn private property. The list includes public
utilities such as ATC. See Wis. Stat. § 32.02(5)(b). Utilities
use the condemnation procedures outlined in Wis. Stat. § 32.06.
¶60 Most condemnations under Wis. Stat. § 32.06 require a
determination of the "necessity of taking." Wis. Stat.
§ 32.06(1). For example, utilities secure a certificate of
public convenience and necessity, Wis. Stat. § 32.07(1), under
Wis. Stat. § 196.491(3). See also Indus. Energy Grp. v. Pub.
Serv. Comm'n, 2012 WI 89, ¶¶26–38, 342 Wis. 2d 576, 819
N.W.2d 240 (describing the process of obtaining a certificate of
public convenience and necessity).
¶61 After making a determination of what it needs to take,
a condemnor "shall attempt to negotiate personally" with the
condemnee (the property owner) for purchase of the property
"sought to be taken." Wis. Stat. § 32.06(2a). The condemnor
must "cause at least one . . . appraisal to be made of the
property to be acquired" before the negotiations commence, and
the condemnee may also obtain an appraisal "of all property
proposed to be acquired." Wis. Stat. § 32.06(2)(a)–(b).
24
No. 2012AP805 & 2012AP840
¶62 If the negotiations are unsuccessful,18 the condemnor
"shall make and serve" a jurisdictional offer to purchase the
property sought. Wis. Stat. § 32.06(3). The contents of a
jurisdictional offer are set out in Wis. Stat. § 32.05(3). They
include a description of the property and "the interest therein
sought to be taken," the proposed date of occupancy, and "the
amount of compensation offered," including such additional items
as relocation benefits. Wis. Stat. § 32.05(3).
¶63 Immediately following the provision relating to the
jurisdictional offer in Wis. Stat. § 32.06(3) is the
definitional provision on "uneconomic remnant." It reads:
In this section, "uneconomic remnant" means the
property remaining after a partial taking of property,
if the property remaining is of such size, shape or
condition as to be of little value or of substantially
impaired economic viability. 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.19
18
If the negotiations are successful, the condemnor must
file two documents: a record of the conveyance itself and the
certificate of compensation, indicating the identity of persons
having an interest of record in the property, the property's
legal description, the nature of the interest acquired and the
compensation provided. Kurylo v. Wis. Elec. Power Co., 2000 WI
App 102, ¶10, 235 Wis. 2d 166, 612 N.W.2d 380 (quoting Wis.
Stat. § 32.06(2a)).
For a general discussion of negotiations in eminent domain
proceedings, see Ross F. Plaetzer, Comment, Statutory
Restrictions on the Exercise of Eminent Domain in Wisconsin:
Dual Requirements of Prior Negotiation and Provision of
Negotiating Materials, 63 Marq. L. Rev. 489 (1980).
19
Except for a different title to the subsection, Wis.
Stat. § 32.05(3m) contains an identical version of this statute.
25
No. 2012AP805 & 2012AP840
Wis. Stat. § 32.06(3m).
¶64 If the property owner fails to accept the
jurisdictional offer within the time specified in the statute,
the condemnor may petition the circuit court in the county where
the property is located to have the county condemnation
commission determine the just compensation for the property
sought to be taken. Wis. Stat. §§ 32.06(6)–(7), 32.08(5). If
the court finds that the condemnor is entitled to condemn any
portion of the property, it "immediately shall assign the matter
to the chairperson of the county condemnation commissioners" to
hold a hearing to determine just compensation. Wis. Stat.
§§ 32.06(7), 32.08(6)(a).
2. The Just Compensation Proceeding and Appeal
¶65 The county condemnation commission holds a hearing to
ascertain just compensation for the taking of the condemnee's
property. Wis. Stat. §§ 32.06(8), 32.08(5). Upon determining
just compensation, the commission files a sworn voucher for the
compensation with the circuit court; if the court approves the
voucher, the condemnor pays the just compensation to the
condemnee. Wis. Stat. §§ 32.06(8), 32.08(6)(b). Either party
may appeal the commission's award to the circuit court within 60
days of the filing of the commission's award. Wis. Stat.
§ 32.06(10). Parties may appeal only on issues related to the
amount of just compensation and questions of title, "and it
shall have precedence over all actions not then on trial." Id.The appeal proceeds as a jury trial unless both parties agree
otherwise. Id.26
No. 2012AP805 & 2012AP840
3. Right-to-Take Proceedings
¶66 The county condemnation commission hearing provides an
opportunity for the condemnee to be heard on the question of
just compensation. However, if after the condemnor makes the
jurisdictional offer, the condemnee wishes to contest the
condemnor's right to take the property "for any reason other
than that the amount of compensation offered is inadequate," the
condemnee may file a separate right-to-take action with the
circuit court. Wis. Stat. § 32.06(5).
¶67 A § 32.06(5) action "shall be the only manner" in
which a condemnee may raise "any issue other than the amount of
just compensation" or perfection of title for the property
described in the jurisdictional offer. Id. A right-to-take
action under § 32.06(5) proceeds independently from a
condemnation proceeding under § 32.06(7) and a just compensation
proceeding under § 32.06(8). Id.
¶68 A trial on the issues in a right-to-take action takes
precedence over all other actions in the court except those
already on trial. Wis. Stat. § 32.06(5). Nevertheless, the
commencement of a right-to-take action does not "limit in any
respect" the right of a condemnor to commence condemnation
proceedings under § 32.06(7). Id. Both matters may proceed
simultaneously. Id.
¶69 If a court "determines that the condemnor does not
have the right to condemn part or all of the property described
in the jurisdictional offer or there is no necessity for its
27
No. 2012AP805 & 2012AP840
taking," litigation expenses20 may be awarded to the condemnee.
Wis. Stat. § 32.28(3)(b).
B. When Must a Property Owner Raise an
Uneconomic Remnant Claim?
¶70 The first issue we must consider is when a property
owner must raise an uneconomic remnant claim in the condemnation
process. The Wallers argue that an uneconomic remnant claim
must be made in a right-to-take proceeding, as expressed in
Waller I and Waller II. ATC, on the other hand, asserts that
there is no action for an uneconomic remnant, but if such an
action were permitted, the claim should be raised either in a
valuation proceeding before the county condemnation commission,
or alternatively, in an inverse condemnation proceeding. See
Wis. Stat. § 32.10.
¶71 Determining whether Wis. Stat. ch. 32 allows a
property owner to bring an uneconomic remnant claim——and if so,
when——requires this court to interpret statutes. "The purpose
of statutory interpretation is to determine what the statute
means so that it may be given its full, proper, and intended
effect." Heritage Farms, Inc. v. Markel Ins. Co., 2012 WI 26,
¶26, 339 Wis. 2d 125, 810 N.W.2d 465 (internal brackets and
20
"Litigation expenses" in Wis. Stat. § 32.28(3)(b) means
"the sum of costs, disbursements and expenses, including
reasonable attorney, appraisal and engineering fees necessary to
prepare for or participate in actual or anticipated proceedings
before the county condemnation commissioners, board of
assessment or any court under this chapter." Wis. Stat.
§ 32.28(1).
28
No. 2012AP805 & 2012AP840
citation omitted). Statutory interpretation "begins with the
language of the statute." State ex rel. Kalal v. Circuit Court
for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110(internal quotation marks omitted). Courts give statutory
language its common, ordinary meaning. Id. Statutory language
is interpreted in the context in which it is used, not in
isolation but as part of a whole. Id., ¶46. We must construe
statutory language reasonably, so as to avoid absurd results.
Id. Legislative history may be relevant to confirm a statute's
plain meaning. Id., ¶51.
¶72 Rules of construction for eminent domain statutes also
guide our interpretation of Wis. Stat. ch. 32. "Because the
power of eminent domain under Wis. Stat. ch. 32 is
extraordinary, we strictly construe the condemnor's
power . . . while liberally construing provisions favoring the
landowner, including available remedies and compensation." TFJ
Nominee Trust v. DOT, 2001 WI App 116, ¶10, 244 Wis. 2d 242, 629
N.W.2d 57 (citing Miesen v. DOT, 226 Wis. 2d 298, 305, 594
N.W.2d 821 (Ct. App. 1999)); see also City of Janesville v. CC
Midwest, Inc., 2007 WI 93, ¶101 n.11, 302 Wis. 2d 599, 734
N.W.2d 428 (Prosser, J., dissenting); Aero Auto Parts, Inc. v.
DOT, 78 Wis. 2d 235, 241, 253 N.W.2d 896 (1977).
¶73 The uneconomic remnant statute, Wis. Stat.
§ 32.06(3m), became law more than 35 years ago. § 5, ch. 440,
Laws of 1977. The legislation was the product of the
legislature's Special Committee on Eminent Domain (Special
Committee), under the auspices of the Wisconsin Legislative
29
No. 2012AP805 & 2012AP840
Council. Summary of Proceedings, Spec. Comm. on Eminent Domain,
Wis. Leg. Council, Madison, Wis. (Sept. 9, 1977) [hereinafter
Spec. Comm. Summary of Proceedings].
¶74 At the September 9, 1977, proceeding of the Special
Committee, members considered separate draft legislation on
various topics that would eventually lead to several bills,
including 1977 Assembly Bill 1077, enacted as Chapter 440 of the
Laws of 1977. See ch. 440, Laws of 1977; Wis. Leg. Council Rep.
No. 28 to the 1977 Legislature, Legislation Relating to Eminent
Domain, at 3–4, Wis. Leg. Council, Madison, Wis. (1977)
[hereinafter Rep. No. 28]. One of the pieces of draft
legislation discussed at the September 9 proceeding addressed
"uneconomic remnant," creating the current Wis. Stat.
§ 32.06(3m). The summary of proceedings indicates that the
draft legislation would "allow[] condemnors to acquire
uneconomic remnants" and that the draft was based on Section 208
of the Uniform Eminent Domain Code. Spec. Comm. Summary of
Proceedings at 5.21
¶75 The National Conference of Commissioners on Uniform
State Laws approved the Model Eminent Domain Code in 1974.
Model Eminent Domain Code, Prefatory Note, 13 U.L.A. 3 (2002).
Section 208, titled "Offer to Acquire Uneconomic Remnant," reads
as follows:
21
The National Conference of Commissioners on Uniform State
Laws officially changed the Uniform Eminent Domain Code to a
Model Act in 1984. Model Eminent Domain Code, 13 U.L.A. 1
(2002).
30
No. 2012AP805 & 2012AP840
(a) If the 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.
(b) "Uneconomic remnant" as used in this section
means a remainder following a partial taking of
property, of such size, shape, or condition as to be
of little value or that gives rise to a substantial
risk that the condemnor will be required to pay in
compensation for the part taken an amount
substantially equivalent to the amount that would be
required to be paid if it and the remainder were taken
as a whole.
Model Eminent Domain Code § 208, 13 U.L.A. 22–23 (2002)
(emphasis added). The Special Committee replaced the above
emphasized language with the more succinct phrase "substantially
impaired economic viability." Spec. Comm. Summary of
Proceedings at 5.
¶76 The Comment to subsection (b) of § 208 of the Model
Eminent Domain Code lists several examples of "physical" or
"financial" remnants after partial takings that would qualify as
uneconomic remnants:
Remnants that are totally "landlocked" so that no
physical use of the property is practicable; remnants
reduced below minimum zoning area requirements where
there is no reasonable possibility of a zoning change;
remnants in such physical condition as to preclude
economically practicable use for any plausible
application; and remnants that are of significant
potential value only to one or a few persons (e.g.,
adjoining landowners).
31
No. 2012AP805 & 2012AP840
Model Eminent Domain Code § 208 cmt., 13 U.L.A. 23 (2002)
(citations omitted).22
¶77 ATC asserts that this legislative history confirms
that the decision to acquire an uneconomic remnant should be
determined by the condemnor, and thus, property owners do not
have a cause of action for an uneconomic remnant. In our view,
the legislative history does not support this theory. On the
contrary, the legislative history shows that condemnors were
given authority to acquire uneconomic remnants, not sole
authority to determine whether an uneconomic remnant exists. If
a condemnor fails to acknowledge the existence of an uneconomic
remnant by describing it and including an offer for it in the
jurisdictional offer——concurrent with its offer for a taking of
other property——the condemnee must have some recourse to assert
and prove the uneconomic remnant claim.
22
The various examples of uneconomic remnants in the
Comment to § 208 indicate that landlocked parcels are but one of
many possible uneconomic remnants. In their brief, ATC implies
that landlocked parcels resulting from partial takings were the
impetus behind the wording substitution "substantially impaired
economic viability." We do not agree.
The Summary of Proceedings for the September 9, 1977,
meeting of the Special Committee records a single spectator "who
referred to a remnant of 30 acres to which there was no access."
Summary of Proceedings, Spec. Comm. on Eminent Domain, at 5,
Wis. Leg. Council, Madison, Wis. (Sept. 9, 1977). The spectator
asserted that this type of property should also be taken. Id.
While the Summary of Proceedings then shows the committee
amended the draft legislation to include the phrase "or of
substantially impaired economic viability," we do not agree with
ATC's conclusion that the amendment was in reaction to the
comments of the spectator in particular, or to landlocked
remnants in general.
32
No. 2012AP805 & 2012AP840
¶78 A Wisconsin Legislative Council report on the Special
Committee's work bears this out. The report states that, with
regard to the uneconomic remnant proposal, "[the legislation]
provides landowners with a means of disposing of portions of
their property which would be substantially reduced in value by
a condemnation project." Rep. No. 28 at 4 (emphasis added).23
¶79 A logical argument can be made that the county
condemnation commission is the place to consider compensation
for an uneconomic remnant if the existence of an uneconomic
remnant has been acknowledged by the condemnor and the condemnor
has included an offer to acquire the uneconomic remnant as part
of the jurisdictional offer. But ATC's position is that the
condemnor alone decides whether to recognize an uneconomic
remnant and that the parties simply fight over the amount of
compensation before the county condemnation commission. We
disagree with that analysis.
¶80 Having recognized a property owner's right to bring an
uneconomic remnant claim, we turn to the question of when in the
condemnation process a property owner should bring that claim.
¶81 We look first to Wis. Stat. § 32.06(3m) to see if it
yields any direction or clues:
23
The Comment to § 208 of the Model Eminent Domain Code
also provides foundation for the assertion of a claim by the
owner of an alleged uneconomic remnant: "[I]f the owner is
prepared to sell, but is not willing to agree to the amount of
compensation offered, this section authorizes the parties to
agree to its acquisition by condemnation proceedings, so that
the compensation may be ascertained by the trier of fact." 13
U.L.A. 23, § 208 cmt. (2002).
33
No. 2012AP805 & 2012AP840
Definition. In this section, "uneconomic
remnant" means the property remaining after a partial
taking of property, if the property remaining is of
such size, shape or condition as to be of little value
or of substantially impaired economic viability. 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.
¶82 The key phrase in this subsection is "the condemnor
shall offer to acquire," and the key word is "concurrently." If
the parties have agreed that there is an uneconomic remnant,
that the condemnor will acquire it, and that the amount of
compensation offered is acceptable, there is no dispute. Where
there is a dispute, the nature of the dispute is exposed in the
jurisdictional offer. If the condemnor makes an offer to
acquire the uneconomic remnant as well as an offer on the
property sought, the condemnor is conceding that an uneconomic
remnant exists, and the dispute is confined to the amount of
compensation. If the condemnor fails to include an offer to
acquire the uneconomic remnant in the jurisdictional offer, it
is disputing that an uneconomic remnant exists, and the property
owner must have a place to raise the issue.
¶83 Wisconsin Stat. § 32.06(5), the right-to-take statute,
reads in part: "When an owner desires to contest the right of
the condemnor to condemn the property described in the
jurisdictional offer for any reason other than that the amount
of compensation offered is inadequate, such owner
may . . . commence an action in the circuit court . . . naming
the condemnor as defendant." (Emphasis added.) Subsection (5)
34
No. 2012AP805 & 2012AP840
continues: "Such an action shall be the only manner in which any
issue other than the amount of just compensation or other than
proceedings to perfect title . . . may be raised pertaining to
the condemnation of the property described in the jurisdictional
offer." Wis. Stat. § 32.06(5) (emphasis added).
¶84 If subsection (5) contained only the first sentence
quoted above, there might be reason to resist including an
uneconomic remnant claim in a right-to-take action. But the
second sentence refers to "any issue," and when the
jurisdictional offer fails to include an offer to acquire the
alleged uneconomic remnant, it creates an "issue other than the
amount of just compensation."24
¶85 Asking the county condemnation commission to order the
condemnor to acquire property beyond what the condemnor has
sought to take in the jurisdictional offer and beyond what the
circuit court has already approved is asking the commission to
exceed its statutory authority. Moreover, if the commission did
not exceed its statutory authority, the condemnee arguably would
not be able to appeal the uneconomic remnant issue because of
the statutory limit on issues that may be appealed. See Wis.
Stat. § 32.06(10).
¶86 The amicus brief filed by the Wisconsin Utilities
Association remarks that:
24
The "any issue" language quoted above was part of the
Wisconsin Statutes before the enactment of the "uneconomic
remnant" provision in 1978. See Wis. Stat. § 32.06(5) (1975–
76).
35
No. 2012AP805 & 2012AP840
There is simply no reason for issues concerning
uneconomic remnants to ever be raised in a right-to-
take proceeding. Even if a landowner brought a
challenge to a condemnation under § 32.06(5) on the
grounds that an uneconomic remnant existed because the
condemnor took a wider right-of-way than needed, the
inquiry would be how wide an easement was needed for
utility purposes, not whether a wider easement
produced an uneconomic remnant.
The Wisconsin Utilities Association's hypothetical suggests that
even though the issue of "uneconomic remnant" might well come up
in a right-to-take hearing, the parties would battle over such
questions as the necessity of taking so large an easement. We
think the existence or non-existence of an "uneconomic remnant"
would be integral to the discussion. The present case
represents the flip side of the hypothetical: the condemnor,
allegedly, has so failed to account for the full impact of its
taking of easements on the condemnee's property that the
condemnee seeks to require the condemnor to acquire more than
the condemnor would like to take. If the condemnee succeeds,
the condemnor also may be required to pay the condemnee
relocation expenses. Surely these are "issues."
¶87 ATC's position is that any question about uneconomic
remnants should be decided by the county condemnation commission
irrespective of whether the condemnor has acknowledged the
existence of an uneconomic remnant.
¶88 The Wallers' position is that the condemnor must take
the uneconomic remnant and pay for it. Wisconsin Stat. § 32.07
is entitled "Necessity, determination of." It reads in part:
The necessity of the taking shall be determined
as follows:
36
No. 2012AP805 & 2012AP840
(1) A certificate of public convenience and
necessity issued under s. 196.491(3) shall constitute
the determination of the necessity of the taking for
any lands or interests described in the certificate.
. . . .
(3) In all other cases, the judge shall
determine the necessity.
Wis. Stat. § 32.07(1) and (3).
¶89 We think it is unlikely that the PSC would decide on
the necessity of taking an individual uneconomic remnant when it
authorizes a major utility project. Thus, the task of
determining the existence of an uneconomic remnant will fall to
the circuit court.
¶90 ATC argues that an uneconomic remnant claim should be
brought in a condemnation hearing on valuation, but this
argument misconstrues the inherent dispute in an uneconomic
remnant case. While determining whether an uneconomic remnant
exists undoubtedly is related to the total amount owed to a
condemnee, it is fundamentally different from a calculation of
the fair market value of an easement under Wis. Stat.
§ 32.09(6g). As Wis. Stat. § 32.06(3m) implies, the question in
an uneconomic remnant claim is the extent of the property the
condemnor has the right or obligation to acquire. Indeed, if a
court finds that a property would become an uneconomic remnant
if the condemnor took an easement, the condemnor might not have
a right to take the easement without offering to purchase the
entire property. See Wis. Stat. § 32.06(3m). Thus, an
uneconomic remnant determination is essential in deciding a
right to a partial taking like an easement and should, whenever
37
No. 2012AP805 & 2012AP840
reasonably possible, precede valuation questions. See Arrowhead
Farms, Inc. v. Dodge Cnty., 21 Wis. 2d 647, 651, 124 N.W.2d 631(1963) (stating that under Wis. Stat. § 32.05, procedural issues
must be resolved before the matter of just compensation).
¶91 While an uneconomic remnant claim may, arguably, be
brought in some cases in an inverse condemnation action, such a
process is "unusual." W. Va. Dep't. of Transp. v. Dodson Mobile
Homes Sales & Servs., 624 S.E.2d 468, 473 (W. Va. 2005).
Further, a property owner may bring an inverse condemnation
action under Wisconsin law only if the property in question "has
been occupied by a person possessing the power of condemnation
and if the person has not exercised the power." Wis. Stat.
§ 32.10; Kohlbeck v. Reliance Constr. Co., 2002 WI App 142, ¶22,
256 Wis. 2d 235, 647 N.W.2d 277. In this case, an inverse
condemnation action would be inappropriate because the Wallers
never claimed that ATC was occupying their entire property; they
retained ownership interest in the property. Instead, the
Wallers argue that ATC's easement substantially impaired the
economic viability of their property.
¶92 It is important to stress that the two tracks——the
right-to-take action and the valuation proceeding before the
county condemnation commission——can proceed simultaneously, and
nothing should stop a utility like ATC from getting easements so
that projects can move forward, so long as the right of
condemnation is not being directly contested. Wisconsin Stat.
§ 32.06(5) specifically provides that the commencement of an
action under that section "shall not prevent a condemnor from
38
No. 2012AP805 & 2012AP840
filing the [condemnation] petition provided for in [subsection]
(7) and proceeding thereon." Utilities like ATC are entitled to
an efficient, cost-effective, and timely resolution of their
proposed takings. In that vein, a motion for injunctive relief
to halt a condemnation proceeding, like the one the Wallers
proposed here, is counterproductive and contrary to the intent
and spirit of the statutes.
C. Is the Waller Property an Uneconomic Remnant?
¶93 This brings us to the question of whether ATC's taking
of the two easements left the Wallers with an uneconomic
remnant, that is, "property . . . of such size, shape or
condition as to be of little value or of substantially impaired
economic viability." Wis. Stat. § 32.06(3m). In our view, the
circuit court was correct in its determination that the Wallers
were left with an uneconomic remnant.
¶94 Considerable factual findings support the trial
court's conclusion that ATC's easements substantially impaired
the economic viability of the Waller property.
¶95 The circuit court described the damage to property
value that was recognized in both appraisals and in the
jurisdictional offer. Rolling's appraisal noted nearly a 57
percent loss in value, while Group One's appraisal determined
that the Waller property sustained an 88 percent loss of value.
The jurisdictional offer acknowledged a 76 percent decrease in
39
No. 2012AP805 & 2012AP840
value from the taking. These numbers are indicative of
substantial economic impairment to the Wallers' small property.25
¶96 Other conclusions in both appraisals create a bleak
picture. Rolling's appraisal for ATC noted that the Wallers'
property will have major transmission lines along two of its
three sides; that the transmission lines will be within 60 feet
of the house; and that substantial landscaping will have been
lost in the easement area. Rolling's appraisal acknowledged
that the property was already transitioning from improved
residential use to vacant industrial use; the installation of
the transmission line pole and the lines themselves would tip
the property to light industrial, rendering the residential
improvements "totally obsolete."
¶97 The Group One appraisal also considered the Waller
property to have its highest and best use——after the taking——as
"vacant for industrial purposes." Group One also noted that the
Wisconsin Department of Transportation, in its Real Estate
Manual for contractors and local governments, indicates that
when a partial taking changes a property's highest and best use,
the change provides a basis for determining that the property
has become an uneconomic remnant.
¶98 However, even for industrial purposes, Group One noted
that the property's triangular shape and small size "negatively
25
The existence of an uneconomic remnant will not always
turn on the percentage of land or the percentage of value taken
by the condemnor. The existence of an uneconomic remnant almost
always turns on the economic viability of what is left after the
taking.
40
No. 2012AP805 & 2012AP840
impact[ed] its desirability as an industrial site at this time."
Furthermore, the lack of municipal sewer and water on the
remaining property is a detriment to any potential industrial
buyer, and as the court of appeals in Waller II noted, it would
cost approximately $41,000 to install the sewer and water——more
than the $38,000 in value for the remaining property.
¶99 In either case, the two 45-foot-wide easements
restrict the property's use for industrial or residential
purposes.
¶100 In conjunction, the two appraisals reveal a picture of
a property so dramatically affected by the easements that it has
limited residential and industrial use after the taking. In
addition, a reduced sound barrier between the residence and
Interstate 43 and perceived electromagnetic disturbances that
would likely rattle any potential buyer, further diminish the
attractiveness and usability of the property. In other words,
the size, shape, and condition of the Waller property is of
substantially impaired economic viability as either a
residential or a light industrial parcel, and it is therefore an
uneconomic remnant.
¶101 These factual findings are not "clearly erroneous."
See Waller II, 334 Wis. 2d 740, ¶15 ("Whether the remaining
property after a partial taking has 'little value' or is 'of
substantially impaired economic viability' is a factual question
for the circuit court to resolve.").
¶102 ATC claims that the Wallers' property is not an
uneconomic remnant because the Wallers could still live on the
41
No. 2012AP805 & 2012AP840
property with the addition of the new high-voltage transmission
lines and that they in fact did live on the property even after
the transmission lines were fully energized. However, ATC
confuses habitability with substantial economic impairment.
Although it may be objectively possible to remain on the
property and continue to live with the new transmission lines,
this does not overcome the fact that the property lost a
significant amount of its desirability and value and could no
longer sustain its previous use as a residential property.
¶103 ATC argues that the property is not an uneconomic
remnant because the existence of a habitable home negates the
possibility that the property is valueless. To support this
proposition, ATC cites Lake Oswego v. Babson, 776 P.2d 870 (Or.
Ct. App. 1989) and Spotsylvania County v. Mineral Springs
Homeowners Ass'n, No. CL02-391, 2003 WL 21904116 (Va. Cir. Ct.
July 18, 2003). However, these cases are distinguishable from
the Wallers' situation. In both cases, the court relied on
statutes or regulations that defined "uneconomic remnant" as
land with no practical value or utility. See Lake Oswego, 776
P.2d at 872-73; Mineral Springs, 2003 WL 21904116 at *3
(defining uneconomic remnant as "unusable"). Thus, the
determinative question in these cases was limited to whether a
property was valueless. By contrast, Wis. Stat. § 32.06(3m)
designates property as an uneconomic remnant if its economic
viability has been substantially impaired. This broader
definition allows for the conclusion that the Wallers' property
42
No. 2012AP805 & 2012AP840
constitutes an uneconomic remnant even though it is not
valueless.
¶104 In addition, Mineral Springs and another case cited by
ATC, New Mexico ex rel. New Mexico State Highway Department v.
United States, 665 F.2d 1023 (Ct. Cl. 1981) (per curiam), are
factually distinct from the present case in that the property
owners themselves objected to the compelled takings and asserted
that their remaining properties were not uneconomic remnants.
These distinctions are material because——unlike broad
constructions favoring landowners——courts interpret the power of
condemnors narrowly, especially when a taking goes beyond what
is needed for public use. TFJ Nominee Trust, 244 Wis. 2d 242,
¶10; Mitton v. DOT, 184 Wis. 2d 738, 748, 516 N.W.2d 709 (1994)
(quoting Falkner, 75 Wis. 2d at 139) ("[N]o more property can be
taken than the public use requires.").
¶105 Based on the factual findings, we conclude that it was
not clearly erroneous for the circuit court to conclude that
ATC's easements have substantially impaired the economic
viability of the Waller property and that it is an uneconomic
remnant.
D. Are the Wallers Entitled To Litigation Expenses?
¶106 Whether the Wallers are entitled to litigation
expenses turns on an application of Wis. Stat. § 32.28(3)(b),
which provides, in relevant part, that "litigation expenses
shall be awarded to the condemnee if . . . [t]he court
determines that the condemnor does not have the right to condemn
43
No. 2012AP805 & 2012AP840
part or all of the property described in the jurisdictional
offer."
¶107 By the plain language of the statute, if the court
determines that the condemnor does not have the right to condemn
part or all of the property, then litigation expenses shall be
awarded to the condemnee under Wis. Stat. § 32.28(3)(b). The
circuit court concluded that ATC had to acquire the entire
property if it wanted to condemn the land for the easements.
The court held that ATC did not have the right to condemn only
the part of the property "sought to be taken" in the
jurisdictional offer because that would leave an uneconomic
remnant. Given this antecedent determination by the court, it
was not error for the court to conclude that the Wallers are
entitled to litigation expenses.
¶108 This conclusion finds support in Warehouse II. In
Warehouse II, this court held that an owner of condemned
property was entitled to litigation expenses under the "right to
condemn" language of Wis. Stat. § 32.28(3)(b), where the
condemnor had not negotiated its jurisdictional offer in good
faith. This court found the statutory language ambiguous, and
"liberally construe[d] statutory provisions regarding
compensation for eminent domain takings to favor the property
owner whose property is taken against his or her will."
Warehouse II, 291 Wis. 2d 80, ¶32. Awarding litigation expenses
under those circumstances furthered the statutory purposes "to
provide more specific and concrete opportunities to recover
litigation expenses for condemnees with legitimate challenges to
44
No. 2012AP805 & 2012AP840
the actions of condemnors" and "to discourage a condemnor from
making a low-ball offer to save money." Id., ¶¶33–34. Here,
like the plaintiffs in Warehouse II, the Wallers seek to recover
litigation expenses under Wis. Stat. § 32.28(3)(b) for a
legitimate challenge to the condemnation actions of ATC. The
statute should be liberally construed in the same manner, and
the Wallers are entitled to litigation expenses.
¶109 ATC argues that no statutory basis exists to award
litigation expenses because ATC negotiated in good faith. Even
if "good faith negotiation" would preclude an award of
litigation expenses——which was not the holding of Warehouse II——
whether ATC negotiated in good faith is a factual issue best
addressed by the circuit court. It should be noted, however,
that although ATC did offer to acquire the Wallers' entire
property for the full amount of the Wallers' appraisal, that
offer was conditioned upon the Wallers' waiver of relocation
benefits, which the Wallers successfully sought in circuit
court. Moreover, the offer was not included as part of the
jurisdictional offer. These facts weigh against a finding that
ATC negotiated in good faith.
¶110 ATC argues also that awarding litigation expenses does
not advance the purposes of Wis. Stat. § 32.28(3)(b). ATC
correctly points out that the purpose of the statute is to make
the landowner whole and to discourage condemnors from
shortchanging landowners. ATC claims that the Wallers would
have been made more than whole by accepting its offer of
$132,000 for the whole property or the jurisdictional offer for
45
No. 2012AP805 & 2012AP840
the easement for $99,500. However, this claim ignores the fact
that ATC's offer for the entire property was conditioned on the
Wallers' waiver of relocation benefits, to which the circuit
court held the Wallers are entitled. Because the Wallers could
have been made whole only by a jurisdictional offer that
included relocation benefits, accepting ATC's offer would have
shortchanged the Wallers, and awarding litigation expenses
furthers the purposes of the statute.26
E. Are the Wallers "Displaced Persons" and Entitled
to Relocation Benefits?
¶111 Wisconsin Stat. § 32.19, titled "Additional items
payable," provides for payments to persons displaced by public
projects. The declaration of purpose in Wis. Stat. § 32.19(1)
provides, in part, that:
The legislature declares that it is in the public
interest that persons displaced by any public project
be fairly compensated by payment for the property
acquired and other losses hereinafter described and
26
The dissent professes fidelity to the text of the
condemnation statute, see Dissent, ¶162, without acknowledging
the usual disparity in resources between the condemnor and
condemnee and the broad policy contained in the condemnation
statute to ameliorate this disparity.
A condemnee is entitled to just compensation. A condemnee
will not be made whole if the condemnee is forced to litigate
the issue of just compensation at great expense and then
subtract his or her attorney fees from an award of full value.
See Standard Theatres, Inc. v. DOT, 118 Wis. 2d 730, 744, 349
N.W.2d 661 (1984). A condemnor has no incentive to reach a fair
settlement with a condemnee if the condemnor is convinced that
it can prevail by outspending and outlasting the weaker
adversary. Wisconsin Stat. § 32.28(3) exists to address this
imbalance of power between the condemnor and the condemnee.
46
No. 2012AP805 & 2012AP840
suffered as the result of programs designed for the
benefit of the public as a whole; and the legislature
further finds and declares that, notwithstanding
subch. II, or any other provision of law, payment of
such relocation assistance and assistance in the
acquisition of replacement housing are proper costs of
the construction of public improvements.
¶112 Wisconsin Stat. § 32.19(3) provides that a condemnor
shall make relocation benefit payments to "displaced persons."
A displaced person is:
[A]ny person who moves from real property or who moves
his or her personal property from real property:
a. As a direct result of a written notice of
intent to acquire or the acquisition of the real
property, in whole or in part or subsequent to the
issuance of a jurisdictional offer under this
subchapter, for public purposes; or
b. As a result of rehabilitation, demolition or
other displacing activity, as determined by the
department of administration, if the person is a
tenant-occupant of a dwelling, business or farm
operation and the displacement if permanent.
Wis. Stat. § 32.19(2)(e)1. Disputes about relocation benefits
must be brought in separate actions under Wis. Stat. § 32.20.
¶113 Because the Wallers did not move as a result of
"rehabilitation, demolition, or other displacing activity" as
articulated in subparagraph b., the Wallers are "displaced
persons" only if they moved "as a direct result" of the
jurisdictional offer under subd. para. a.
¶114 Determining whether a person moved from real property
"as a direct result" of a written notice of the acquisition——
i.e., a jurisdictional offer——requires a factual inquiry into
the cause of the person's move. See Wis. Stat.
47
No. 2012AP805 & 2012AP840
§ 32.19(2)(e)(1)a. Factual findings will be affirmed unless
clearly erroneous. Wis. Stat. § 805.17 (2); Emp'rs Ins. of
Wausau v. Jackson, 190 Wis. 2d 597, 613, 527 N.W.2d 681 (1995).
¶115 The Wallers lived on their property for almost 20
years before ATC made its jurisdictional offer in March 2008.
Though ATC offered to purchase the Wallers' entire property for
$132,000——approximately the full amount of the Wallers'
appraisal——the Wallers refused that offer because it was
conditioned on a waiver of their relocation benefits. Although
the Wallers had listed their house for sale in 2005, there is no
evidence that the Wallers conducted a search for replacement
property until Spring 2008, when ATC made its jurisdictional
offer. Based on these facts, Judge Carlson's finding that the
Wallers' move was a "direct result . . . in whole or in part"
because of ATC's jurisdictional offer is not clearly erroneous.
¶116 ATC argues that the Wallers are not "displaced
persons" because they chose to move voluntarily and were not
"forced" to move. The Wallers do not dispute that they could
have continued to live on the property after the installation of
the transmission line or that they decided to move before they
received Rolling's 2007 appraisal. However, the statute
contains no explicit requirement that a person's move must be
"forced" or involuntary in order to render that person
"displaced."
¶117 If the legislature intended to provide for relocation
benefits only for persons who were "forced" to move, it could
have done so. Indeed, the second alternative definition of
48
No. 2012AP805 & 2012AP840
"displaced person" in Wis. Stat. § 32.19(2)(e)(1)b. explicitly
provides that a "displaced person" is one whose move is prompted
by "rehabilitation, demolition, or other displacing activity."
This definition of "displaced person" is an alternative to subd.
para. a., which contains no reference to the physical condition
or habitability of the condemned property, and instead defines
"displaced person" in terms of "direct" causation.
IV. CONCLUSION
¶118 We conclude the following. First, Wis. Stat.
§ 32.06(5), the "right-to-take" provision, sets out the proper
and exclusive way for a property owner to raise a claim that the
owner will be left with an uneconomic remnant after a partial
taking by the condemnor. An uneconomic remnant claim should be
brought under § 32.06(5) because the condemnor has failed to
include an offer to acquire any uneconomic remnant in the
condemnor's jurisdictional offer. The inclusion of an offer to
acquire an uneconomic remnant acknowledges the existence of the
uneconomic remnant. The exclusion of such an offer indicates
that the condemnor disputes the existence of an uneconomic
remnant. A right-to-take action must be decided promptly by the
court and shall not prevent the condemnor from filing a
simultaneous valuation petition, proceeding thereon, and taking
any property interest whose condemnation is not being directly
contested by the owner. A right-to-take action on an uneconomic
remnant claim is designed to protect an owner's right to fair
compensation to avoid economic hardship, not to paralyze public
interest takings under eminent domain.
49
No. 2012AP805 & 2012AP840
¶119 Second, the Wallers' property, after ATC took two
easements for transmission lines, is an uneconomic remnant
because it is of such size, shape, and condition as to be of
substantially impaired economic viability as either a
residential or an industrial parcel. The taking of the two
easements drastically reduced the portion of the Wallers'
property not subject to a servitude. The easements themselves
not only restricted the Wallers' activity in the easement area
but also substantially diminished the desirability,
practicality, and value of the Wallers' property for either a
residential or industrial user.
¶120 Third, the Wallers prevailed on their uneconomic
remnant claim brought under Wis. Stat. § 32.06(5)——the right-to-
take statute——and, therefore, were entitled to litigation
expenses under Wis. Stat. § 32.28.
¶121 Finally, the Wallers were displaced persons under Wis.
Stat. § 32.19(2)(e)1.a. because they moved "as a direct result"
of ATC's jurisdictional offer, and the circuit court's findings
of fact on this issue are not clearly erroneous.
By the Court.—The judgments of the circuit court are
affirmed.
¶122 MICHAEL J. GABLEMAN, J., did not participate.
50
No. 2012AP805 & 2012AP840.awb
¶123 ANN WALSH BRADLEY, J. (dissenting). The majority
has transformed what should be a case of minor statewide impact
involving only a small amount of money into a case with
significant ramifications and costly consequences for ratepayers
and taxpayers who end up paying the bills.
¶124 The ramifications will affect how all condemnors
throughout the state proceed with the taking of property for
projects, large and small.1
¶125 Because the majority rewrites and broadens the
statutory definition of an uneconomic remnant, condemnors may
now be required to take an increased amount of property that
they do not want or need for their projects. Increased costs to
ratepayers and taxpayers will accompany these unnecessary
takings because now condemnors can be required to pay for the
1
As ATC warned before the circuit court, the ramifications
of this case extend far beyond this relatively small dispute.
The importance of this case was described by ATC's attorney on
the record:
The value is small in this case. But the implications
of it are enormous not just for ATC but for the
Department of Transportation and every other condemnor
in the state . . . if there were a finding that this
small amount of visual and noise w[as] enough to
render this an uneconomic remnant, you'll have
uneconomic remnants in all sorts of cases. You'll
have to buy the entire property, you'll have to
provide all the relocation benefits, and we don't
think that's anything like what the legislature
intended.
In essence, this case has the potential to spawn a cottage
industry of uneconomic remnants.
1
No. 2012AP805 & 2012AP840.awb
entire property, together with relocation benefits, rather than
paying for the taking of only an easement.
¶126 In concluding that the right-to-take proceeding is the
only way to bring an uneconomic remnant claim, the majority
rewrites another statute. Rather than following the clear words
of the right-to-take statute, the majority creates a process
with concurrent dual proceedings which has the potential for
conflicting valuations and procedural quagmires. The majority's
process of dual proceedings contravenes the legislative purpose
of the condemnation statutory scheme, which is to promote
efficient and cost-effective condemnation procedures.
¶127 Likewise, because the majority rewrites what it
initially acknowledges as the clear language of a third statute,
the litigation expense statute, it awards out-of-proportion
litigation expenses of $211,261.64 for a case involving only a
few thousand dollars difference in value.
¶128 Our task when interpreting statutes is to discern the
statute's meaning, which we presume is expressed in the language
of the legislature. Richards v. Badger Mut. Ins. Co., 2008 WI
52, ¶20, 309 Wis. 2d 541, 749 N.W.2d 581. In applying the words
of the statutes written by the legislature, I conclude that a
valuation proceeding under Wis. Stat. § 32.06(7) is the proper
proceeding to bring an uneconomic remnant claim. Furthermore, I
determine that the Wallers' property is not an uneconomic
remnant as it is defined by Wis. Stat. § 32.06(3m) and that the
Wallers are not entitled to litigation expenses or relocation
benefits. Accordingly, I respectfully dissent.
2
No. 2012AP805 & 2012AP840.awb
I
A. The majority rewrites Wis. Stat. § 32.06(3m), the
uneconomic remnant statute.
¶129 The majority rewrites the statutory definition of an
uneconomic remnant. It describes the remnant here as "the
Wallers' property," leaving the impression that the remnant is
the entire property rather than a remaining piece of the
property. Majority op., ¶7.
¶130 Basing its analysis on a percentage formula (57%, 88%,
and 76%), the majority opines that the percentage losses in
value illustrate "substantial economic impairment" to the
property. Id., ¶95. In addition to considering the percentage
losses to the property's value, it states that the Waller
property is an uneconomic remnant because the easements
"diminished the desirability, practicality, and value of the
Wallers' property." Id., ¶7.
¶131 Such an analysis rewrites the uneconomic remnant
statute. The text of Wis. Stat. § 32.06(3m), which sets forth a
definition of an uneconomic remnant, provides in relevant part:
(3m) Definition. In this section, "uneconomic remnant"
means the property remaining after a partial taking of
property, if the property remaining is of such size,
shape or condition as to be of little value or of
substantially impaired economic viability.
¶132 The majority rewrites Wis. Stat. § 32.06(3m) in two
ways. First, it appears to rewrite the statutory phrase
"property remaining" to mean an entire property. Second, it
rewrites the statutory phrase "substantially impaired economic
3
No. 2012AP805 & 2012AP840.awb
viability" to mean "diminished desirability, practicality, and
value."
¶133 In essence, to fit the facts of this case, the
majority rewrites Wis. Stat. § 32.06(3m) as follows:
(3m) Definition. In this section, "uneconomic remnant"
means the entire property remaining after a partial
taking of property, if the property remaining is of
such size, shape or condition as to be of little value
or of substantially impaired economic viability
diminished desirability, practicality, and value.
(additions are in bold, deletions have been struck.)
¶134 The majority's revision not only changes the
legislature's explicit statutory language defining a remnant,
but it also flies in the face of common sense——the entire
property cannot constitute only a remaining part of the
property. Throughout its opinion, the majority describes the
relevant remnant in this case as "the Wallers' property." See
majority op., ¶¶7, 102, 103, 119. If the majority is indeed
defining an uneconomic remnant as the entire property, it makes
no sense because a remnant necessarily means something that is
remaining or left over.
¶135 The common and ordinary meaning of the word "remnant"
is "[s]omething left over; a remainder." The American Heritage
Dictionary, 1527 (3d ed. 1992). Likewise, the common and
ordinary meaning of the statutory word "remaining" contemplates
that some property will be "left after the removal, loss,
passage, or destruction of others." Id. at 1525. The "remnant"
or the "property remaining" cannot mean the whole Waller
4
No. 2012AP805 & 2012AP840.awb
property——there nothing that is "left over" because the entire
property is still intact.
¶136 If the remnant were the entire property, condemnors
would be put in the absurd position of having to buy entire
properties when the taking leaves the property wholly intact and
retaining an economic viability. It substantially inflates the
scope of takings required for projects where only easements are
necessary, such as the installation of power lines, water or gas
pipelines, and the like. In setting forth a definition of an
uneconomic remnant, the legislature cannot have intended that a
utility company would be forced to buy a whole property in order
to install power lines on otherwise existing highway and utility
easements.
¶137 Arguably the majority embraces its strained
"whole=left over part" analysis because under the facts of this
case it also makes no sense that the remnant is the remaining
part of the property which is unencumbered by easements. The
following illustration, which is not to scale, depicts the
previously existing highway and utility easements together with
the ATC easements superimposed on top of them:
5
No. 2012AP805 & 2012AP840.awb
The legislature likewise cannot have envisioned that public
utilities would be forced to take fee simple title to the
interior part of property as an "uneconomic remnant" while
leaving the property owner fee simple title subject to easements
in the borders of the property.2 It would be absurd.
2
The north side of the triangle is abutted by Mound Road.
It was previously subject to a 20-foot easement and a 25-foot
highway setback. ATC's proposed easement expanded the
encumbered area by 25 feet, and would create a 45-foot wide
strip of land along Mound Road.
The east side of the triangle abuts Interstate 43 and was
previously subject to a 50-foot highway setback. ATC's proposed
easement would create a 45-foot wide strip of encumbered
property within the existing setback area.
A smaller triangle of land remains unencumbered by
easements or setback restrictions after the partial taking. The
residence is located on the smaller triangle.
6
No. 2012AP805 & 2012AP840.awb
¶138 The second way in which the majority rewrites the
statutory definition of the remnant also leads to absurd
results. The statute sets forth the "size, shape and condition"
test to be applied when determining "substantially impaired
economic viability." Wis. Stat. § 32.06(3m). Instead of
focusing on the statutory test, the majority makes up its own.
It interprets "substantially impaired economic viability" to
mean "diminished . . . desirability, practicality, and value."
Majority op., ¶7. The majority's emphasis on desirability,
practicality, and value causes it to employ a percentage formula
in determining whether the Waller property is an uneconomic
remnant that at first appears compelling, but ultimately the use
of a percentage formula can lead to absurd results. Majority
op., ¶85.
¶139 The absurdity is illustrated in the taking of an
easement on a highly valued piece of property. Take, for
example, a $6 million parcel of land:
¶140 If the value of the property after the partial taking
decreases by 57%, as Rolling's appraisal indicated, then the
value of the remaining property is $2,580,000.
¶141 If the jurisdictional offer's estimation of the
decrease in value is used and the $6 million parcel loses 76% of
its value, the remaining property is worth $1,440,000.
¶142 If the Group One appraisal's estimation of the
decrease in value is used and the $6 million parcel loses 88% of
its value, the remaining property is worth $1,320,000.
7
No. 2012AP805 & 2012AP840.awb
¶143 Few would argue that a property with an after-taking
value of $2,580,000, $1,440,000, or $1,320,000 is an uneconomic
remnant of "substantially impaired economic viability," except
perhaps in the extreme circumstance where there are other
compelling factors present in the facts. Does the majority
really mean to employ an analysis that could declare a multi-
million dollar property an uneconomic remnant?
¶144 Rather than rewrite Wis. Stat. § 32.06(3m) to fit the
Wallers' situation, the majority should stick to applying the
words chosen by the legislature. Such a practice would avoid
the absurd results described above.
B. The majority rewrites Wis. Stat. § 32.06(5), the right-to-
take statute.
¶145 The majority tackles the issue of what condemnation
proceeding should be used to raise an uneconomic remnant claim——
a valuation proceeding3 under Wis. Stat. § 32.06(7)4 or a right-
3
The majority refers to the proceeding set forth in Wis.
Stat. § 32.06(7) in various ways. At times it calls the
proceeding a "valuation proceeding." Majority op., ¶¶70, 92.
Other times, it calls the proceeding a "condemnation hearing on
valuation." Id., ¶90. In yet other places, it refers to the
proceeding as a "just compensation proceeding." Id., ¶67. This
opinion refers to such a proceeding as a "valuation proceeding."
4
Wisconsin Stat. § 32.06(7) states as follows, in relevant
part:
(7) Petition for condemnation proceedings. If the
jurisdictional offer is not accepted within the
periods limited in sub. (6) or the owner fails to
consummate an acceptance as provided in sub. (6), the
condemnor may present a verified petition to the
circuit court for the county in which the property to
be taken is located, for proceedings to determine the
necessity of taking, where such determination is
required, and the amount of just compensation. . . .
8
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to-take proceeding under Wis. Stat. § 32.06(5). Majority op.,
¶68. Citing to Wis. Stat. § 32.06(5), the right-to-take
statute, it concludes that an uneconomic remnant claim can be
maintained only in a right-to-take proceeding. Id., ¶92.
¶146 In reaching this conclusion, however, the majority
rewrites the right-to-take statute. As the legislature wrote
the statute, it provides, in relevant part:
(5) Court action to contest right of condemnation.
When an owner desires to contest the right of the
condemnor to condemn the property described in the
jurisdictional offer for any reason other than that
the amount of compensation offered is inadequate, such
owner may . . . commence an action in the circuit
court of the county wherein the property is located,
naming the condemnor as defendant. Such action shall
be the only manner in which any issue other than the
amount of just compensation or other than proceedings
to perfect title under ss. 32.11 and 32.12 may be
raised pertaining to the condemnation of the property
described in the jurisdictional offer.
Wis. Stat. § 32.06(5) (emphasis supplied).
¶147 The Wallers are not contesting the right of the
condemnor to condemn——quite the opposite. They want the
condmenor to condemn even more property. In an effort to
shoehorn the facts of this case into the right-to-take
If the petitioner is entitled to condemn the property
or any portion of it, the judge immediately shall
assign the matter to the chairperson of the county
condemnation commissioners for hearing under s. 32.08.
An order by the judge determining that the petitioner
does not have the right to condemn or refusing to
assign the matter to the chairperson of the county
condemnation commissioners may be appealed directly to
the court of appeals.
9
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proceeding, the majority rewrites the statute by ignoring part
of the statutory language.
¶148 The majority erases the portion of Wis. Stat.
§ 32.06(5) stating that the proceeding is to be maintained when
"an owner desires to contest the right of the condemnor to
condemn the property described in the jurisdictional
offer . . . ." Wis. Stat. § 32.06(5). Despite that clear
statement of purpose in the statute, the majority directs future
litigants like the Wallers, who do not in any way contest the
condemnor's right to take the property described in the
jurisdictional offer, to bring uneconomic remnant claims under
Wis. Stat. § 32.06(3m) in a right-to-take proceeding.5
¶149 All of the legislature's words must be accorded
meaning, and here the legislature has stated that a right-to-
take proceeding is to be maintained when an owner contests the
right of the condemnor to take the property described in the
jurisdictional offer. However, the majority appears to delete
that language from Wis. Stat. § 32.06(5) in characterizing the
right-to-take proceeding as a catchall proceeding for uneconomic
remnant claims.
5
The Wallers' attorney stated on the record that there is
no challenge to ATC's right to take the property described in
the jurisdictional offer:
In this case . . . this is a case in which we are not
challenging their right to take. The only reason
we're in that statute [Wis. Stat. § 32.06(5)] is
because the statute says the only reason——the only way
you can enforce (3m) is under this provision. This is
really not a challenge action.
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No. 2012AP805 & 2012AP840.awb
¶150 Additionally, Wis. Stat. § 32.06(5) is rewritten when
the majority leaves out other statutory words from its analysis.
It emphasizes "any issue," but the statute states in full "any
issue other than the amount of just compensation . . . ." By
emphasizing "any issue," the majority implicitly holds that an
uneconomic remnant claim is not really one of just compensation.
¶151 However, just compensation is at the heart of the
uneconomic remnant claim here. The owners want more money.
¶152 Misinterpreting an uneconomic remnant claim as an
issue of the right to take rather than an issue of how much
compensation a property owner should receive creates a
procedural quagmire. Because the majority contemplates that a
right-to-take case proceeds concurrently with a valuation
proceeding, see majority op., ¶¶92, what happens when the
answers reached in each proceeding conflict with each other?
Both proceedings require a fact finder to determine the before
and after value of the property at issue. When they are in
conflict, which valuation trumps the other?
¶153 If the valuation in the right-to-take proceeding
trumps the valuation in the valuation proceeding, how does that
affect the statutory right to a jury trial in the valuation
proceeding? Wisconsin Stat. § 32.06(10) expressly sets forth a
statutory right to a jury in a valuation proceeding. It states
that a valuation proceeding on appeal to the circuit court
"shall be tried by a jury unless waived by both plaintiff and
defendant." Id. Is such a statutory right now to be subsumed
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No. 2012AP805 & 2012AP840.awb
in favor a judge's determination of value in a right-to-take
proceeding?
¶154 Here, the court of appeals held that the jury's
verdict in the valuation proceeding must be vacated if the
circuit court determined——as it did——that the taking resulted in
an uneconomic remnant. Waller v. American Transmission Co.,
LLC, 2011 WI App 91, ¶17, 334 Wis. 2d 740, 799 N.W.2d 487.
Because there is a statutory right to a trial by jury in a
valuation proceeding and the jury's verdict is now vacated, does
that mean that the valuation proceeding must be retried?
¶155 Is the circuit court's determination on the issue of
value in the right-to-take proceeding subject to a claim of
issue preclusion in the valuation proceeding? If so, is the
denial of the statutory right to a jury trial implicated?
¶156 The condemnation statutory scheme strives for
proceedings which are both efficient and cost-effective.
Pulvermacher Enterprises, Inc. v. Wisconsin DOT, 166 Wis. 2d
234, 241, 479 N.W.2d 217 (Ct. App. 1991). The majority's
conclusion that an uneconomic remnant claim can be brought only
in a right-to-take proceeding is contrary to those purposes and
potentially creates the procedural quagmire described above.
¶157 This case provides a textbook example of the
inefficiencies likely to result from the majority's procedures.
Here, the same evidence is so essential to both the question of
just compensation and the uneconomic remnant determination that
the circuit court incorporated the record and the jury's verdict
setting forth before and after values from the valuation
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No. 2012AP805 & 2012AP840.awb
proceeding into the right-to-take case. See majority op., ¶36.
After the court of appeals reversed the circuit court a second
time, concluding that a hearing was necessary to determine
whether an uneconomic remnant exists, the same witnesses who
testified in the valuation trial were called. They offered
essentially the same testimony. See majority op., ¶41.
¶158 Condemnation proceedings are designed not only to
provide for an efficient resolution to the question of
compensation, but also to provide a cost-effective method of
taking property. Pulvermacher Enterprises, Inc., 166 Wis. 2d at
241. In Falkner v. Northern States Power Co., 75 Wis. 2d 116,
248 N.W.2d 885 (1977), even as this court recognized that a
right-to-take proceeding is independent from a valuation
proceeding, it also observed that "[d]uplication of effort and
expense may result if separate trials are held." Falkner, 75
Wis. 2d at 135 n.9. The Falkner court therefore recognized that
the condemnation statutes are designed to avoid unnecessary
expense incurred by concurrent proceedings.
¶159 In an amicus brief, the Wisconsin Utilities
Association provides examples of the added expense that will
likely arise due to the condemnation procedures adopted by the
majority. It advances that the added expense will ultimately
appear in Wisconsin residents' utility bills:
For example, Wisconsin utilities . . . depend on
efficient condemnation procedures to allow them to
quickly construct new power lines, gas pipes, and
water pipes to meet Wisconsin's growing utility
needs. . . . The financial expenses associated with
the eminent domain process [] directly impact[s]
Wisconsin residents, as the costs of doing business as
13
No. 2012AP805 & 2012AP840.awb
a utility are largely passed on to customers through
rates.
In rewriting Wis. Stat. § 32.06(5), the majority has left in its
wake inefficient condemnation proceedings that are more
expensive to maintain. The costs of the majority's procedures
will be passed on to rate-payers and taxpayers alike.6
C. The majority rewrites Wis. Stat. § 32.28(2)(b), the
litigation expenses statute.
¶160 The litigation expenses awarded by the circuit court
total $211,261.74. Majority op., ¶44. In its discussion of
litigation expenses, the majority does not even mention the
amount awarded by the circuit court. It nevertheless, without
analysis of the amount, affirms the entire award as reasonable.
Id., ¶¶106-110.
¶161 The error of the majority's sub silencio
reasonableness determination is compounded because it has to
rewrite a statute in order to affirm this award of out-of-
proportion litigation expenses. Wisconsin Stat. § 32.28(3)(b),
the litigation expenses statute, provides in relevant part:
(3) In lieu of costs under ch. 814, litigation
expenses shall be awarded to the condemnee if:
. . . .
6
The Wisconsin Utilities Association further argues that
the provision of utility services such as electricity, gas, and
water are "a quintessential public good at stake in the exercise
of eminent domain." It advances that "[r]esidents throughout
Wisconsin depend on" condemnor-utilities for their utility
services, and observes that this court's decision "not only
affects the [utilities], it also affects their customers'
interests in reasonably priced utility services and sufficient
electric, gas, and water distribution infrastructure to support
economic development and growth throughout Wisconsin."
14
No. 2012AP805 & 2012AP840.awb
(b) The court determines that the condemnor does not
have the right to condemn part or all of the property
described in the jurisdictional offer or there is no
necessity for its taking . . . .
¶162 The majority initially accepts point-blank that the
"plain language" of the statute does not allow the majority to
award litigation expenses here. Majority op., ¶107. The plain
language allows litigation expenses only if "the condemnor does
not have the right to condemn part or all of the property
described in the jurisdictional offer." Wis. Stat.
§ 32.28(3)(b). Nevertheless, the majority seemingly ignores the
plain language and rewrites the statute by awarding litigation
expenses in a case where all agree that ATC has the right to
condemn part or all of the property described in the
jurisdictional offer. Id.¶163 An award of litigation expenses is ordinarily
authorized by statute and must fit within the relevant statutory
grant of authority to justify an award in a given case.
Shifting litigation expenses under Chapter 32 is no different——
it "is a matter of policy to be determined by the
legislature . . . ." Wieczorek v. City of Franklin, 82 Wis. 2d
19, 23, 260 N.W.2d 650 (1978). By applying Wis. Stat.
§ 32.28(3)(b) to these facts, the majority is rewriting the
words of the statute and granting an award of litigation
expenses that the legislature did not authorize.
¶164 Ultimately, the ramifications of rewriting Wis. Stat.
§ 32.28(3)(b) to fit this fact pattern will be felt by the rate-
paying public. It is not really ATC that is on the hook for
paying the Wallers' disproportionately large litigation
15
No. 2012AP805 & 2012AP840.awb
expenses. Rather, it is those Wisconsin residents who use
electricity that will pay the $211,261.74 bill.
¶165 The amounts in dispute in this case are dwarfed by the
Wallers' litigation expenses. Here, ATC offered to purchase the
easements for $99,500 in a consensual sale. That offer exceeded
the awards of both the compensation commission, which awarded
$90,000 for the easements, and the jury, which awarded $94,000
for the easements. In the alternative, ATC conditionally
offered to buy the Wallers' entire property for $132,000——the
same valuation that the jury ultimately proffered for the Waller
property.
¶166 The Wallers rejected ATC's offers. Instead, they took
ATC to court. They chose to litigate until the case had seen
three circuit judges, the condemnation commission, two panels at
the court of appeals, and now the Wisconsin Supreme Court.
¶167 In the end, a jury awarded the Wallers $5,500 less for
the easements than what ATC offered to pay in a consensual sale.
¶168 The Wallers' attorneys have without question
vigorously and diligently advanced their clients' interests.
However, a litigation expenses award of $211,261.74 in a matter
where the just compensation award was less than what was
initially offered in a consensual sale and where it is
undisputed that the condemnor has a right to take the easements
at issue is wholly out of proportion to the scale of the
dispute.
¶169 The law requires that an award of litigation expenses
must be reasonable and necessary. Standard Theatres, Inc. v.
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No. 2012AP805 & 2012AP840.awb
Wisconsin DOT, 118 Wis. 2d 730, 741, 349 N.W.2d 661 (1984). In
evaluating the reasonableness of proposed litigation expenses,
this court has in past cases utilized SCR 20:1.5 as a useful
guide. Kolupar v. Wilde Pontiac Cadillac, Inc., 2004 WI 112,
¶24, 275 Wis. 2d 1, 683 N.W.2d 58. One factor to consider under
SCR 20:1.5 is "the amount involved and the results obtained."
Such an out-of-proportion award is not reasonable under these
circumstances, given the "amount involved" and the "results
obtained."
¶170 By affirming an award of $211,261.74 in litigation
expenses here, the majority is sending the wrong message.
Litigants may have little incentive to avoid dragging out small
disputes about uneconomic remnants, hoping that future courts
will likewise shoehorn their circumstance into the words of the
statute and award out-of-proportion litigation expenses.
II
¶171 Our task when interpreting statutes is to discern the
statute's meaning, which we presume is expressed in the language
of the legislature. Richards, 309 Wis. 2d 541, ¶20. For the
reasons set forth above, I conclude that the right-to-take
procedure is ill-fitted for an uneconomic remnant determination.
It would require rewriting of the statute and results in
concurrent, costly, and potentially conflicting procedures.
¶172 The uneconomic remnant determination is about
compensation, not the right to condemn. That is especially
evident in this case. The Wallers do not challenge ATC's right
17
No. 2012AP805 & 2012AP840.awb
to condemn. Rather, they seek additional compensation based on
the nature of ATC's taking.
¶173 In applying the words of the statutes as written by
the legislature, I conclude that Wis. Stat. § 32.06(7) sets
forth the correct procedure because it focuses on valuation and
compensation. Wisconsin Stat. § 32.06(7) requires that if the
condemnor is "entitled to condemn the property or any portion of
it, the judge immediately shall assign the matter to the
chairperson of the county condemnation commissioners for hearing
under s. 32.08." Such a proceeding may be commenced in the
circuit court by verified petition "for proceedings to determine
the necessity of taking, where such determination is required,
and the amount of just compensation."7 Id.
¶174 Thus, even if an uneconomic remnant claim implicates
issues related to the necessity of the taking, Wis. Stat.
§ 32.06(7) allows for the resolution of those uneconomic remnant
claims. Under the statute, the circuit court is expressly
empowered to determine the necessity of the taking before
referring the matter to the condemnation commission. Wis. Stat.
§ 32.06(7); see also Wis. Stat. § 32.07(3) (allowing the
necessity of a taking to be determined by the court). A
"proceeding to determine the necessity of taking" naturally
7
Upon resolution of questions regarding the necessity of a
taking, the statute directs the circuit court to refer the
valuation question to the condemnation commission. Wis. Stat.
§ 32.06(7). The condemnation commission is authorized by
statute to "ascertain the compensation to be made for the taking
of property or rights in property sought to be condemned," but
is not otherwise empowered to determine the necessity of the
proposed taking. Wis. Stat. § 32.08(5).
18
No. 2012AP805 & 2012AP840.awb
encompasses uneconomic remnant arguments that implicate the
scope of a taking.
¶175 The legislative purpose of the condemnation statutory
scheme supports my conclusion. The purpose "is to provide an
efficient, final resolution to the compensation question."
Pulvermacher Enterprises, 166 Wis. 2d at 241.
¶176 Bringing an uneconomic remnant claim in a valuation
proceeding avoids the procedural quagmire identified above. It
will encourage questions such as the ones presented here, where
the Wallers do not dispute the taking but instead seek
additional compensation, to be resolved quickly and efficiently
so that just compensation may be addressed with a measure of
finality.
¶177 Having determined that a valuation proceeding is the
correct way to raise an uneconomic remnant claim, I turn to
address whether the Wallers' remaining property after the taking
is an uneconomic remnant. Wisconsin Stat. § 32.06(3m) states
that a parcel is an uneconomic remnant under two circumstances——
when the remnant is of such size, shape or condition so as to be
of "little value" or is of "substantially impaired economic
viability."
¶178 No one argues on review that the Waller property is of
"little value," and because the Waller property has $38,000 in
value after the taking, such an argument would be difficult to
successfully advance under these facts. Ultimately, the real
question is whether the Wallers' remaining property is of such
19
No. 2012AP805 & 2012AP840.awb
"size, shape or condition" so as to be of "substantially
impaired economic viability." Wis. Stat. § 32.06(3m).
¶179 Here, the "size, shape or condition" of the Waller
property before the taking indicates that it was a property
subject to substantial restrictions. It was a small triangle of
land with a residence subject to substantial easements for power
lines and setback restrictions, which is situated next to an
industrial park and a major interstate highway.
¶180 ATC proposed to take only easements, leaving the
Wallers with a fee simple title to the entire parcel. The
easements expand upon already-existing easements, and most of
the new easements are within an area already subject to setback
restrictions.
¶181 Given the nature of the taking in this case and the
$38,000 in value left over after the taking, the Wallers have
failed to establish that the size, shape or condition of the
property remaining after the taking is of "substantially
impaired economic viability." Wis. Stat. § 32.06(3m). Under
these circumstances, I conclude that after the partial taking,
there is no uneconomic remnant.
¶182 Because I determine that there is no uneconomic
remnant in this case, I further conclude that an award of
litigation expenses and relocation benefits is not justified
here. With regard to litigation expenses, the plain text of
Wis. Stat. § 32.28(3)(b) allows an award only when the
"condemnor does not have the right to condemn part or all of the
property described in the jurisdictional offer or there is no
20
No. 2012AP805 & 2012AP840.awb
necessity for its taking." That circumstance is not present in
this case.
¶183 Likewise, relocation benefits are available only if
the Wallers meet the statutory definition of a "displaced
person" under Wis. Stat. § 32.19(2)(e).8 That statute requires
the Wallers to show that they moved "as a direct result of a
written notice of intent to acquire or the acquisition of the
real property . . . subsequent to the issuance of a
jurisdictional offer." See also Wis. Admin. Code § Adm.
8
Wisconsin Stat. § 32.19(2)(e) provides as follows:
(e)1. "Displaced person" means, except as provided
under subd. 2., any person who moves from real
property or who moves his or her personal property
from real property:
a. As a direct result of a written notice of intent to
acquire or the acquisition of the real property, in
whole or in part or subsequent to the issuance of a
jurisdictional offer under this subchapter, for public
purposes; or
b. As a result of rehabilitation, demolition or other
displacing activity, as determined by the department
of administration, if the person is a tenant-occupant
of a dwelling, business or farm operation and the
displacement is permanent.
2. "Displaced person" does not include:
a. Any person determined to be unlawfully occupying
the property or to have occupied the property solely
for the purpose of obtaining assistance under ss.
32.19 to 32.27; or
b. Any person, other than a person who is an occupant
of the property at the time it is acquired, who
occupies the property on a rental basis for a short
term or a period subject to termination when the
property is needed for the program or project for
which it is being acquired.
21
No. 2012AP805 & 2012AP840.awb
92.01(14) (further defining "displaced person"); City of
Milwaukee v. Roadster LLC, 2003 WI App 131, ¶¶13, 18, 265 Wis.
2d 518, 666 N.W.2d 524 (a lessee was a "displaced person" when
it was "forced" to give up its leasehold interest and "forced"
to relocate); C. Coakley Relocation Systems, Inc. v. City of
Milwaukee, 2008 WI 68, ¶19, 310 Wis. 2d 456, 750 N.W.2d 900(describing the language in Wis. Stat. § 32.19(2)(e) as applying
to a "person displaced by a condemnation").
¶184 The Wallers listed their house for sale in February
2005, one year before they learned of ATC's transmission-line
project. Additionally, they lived in their residence for about
one year after the upgraded transmission line was installed.
Ultimately, I conclude that they do not satisfy the statutory
definition of a "displaced person" under these circumstances
because they have failed to establish that they moved as a
"direct result" of a "written notice of intent to acquire," an
"acquisition," or a "jurisdictional offer." Wis. Stat.
§ 32.19(2)(e).
¶185 Accordingly, I respectfully dissent.
¶186 I am authorized to state that Chief Justice Shirley S.
Abrahamson joins this dissent.
22
No. 2012AP805 & 2012AP840.awb
1