April 17th, 2009 — By — In News & Events

WisDOT proposes eminent domain law changes

In January the Wisconsin Law Journal featured an article entitled “DOT wants to cap legal fees for eminent domain takings.” The author explained that WisDOT had proposed the changes as part of it’s 2009-11 budget and as a result of an increase WisDOT had seen in the payouts between 2004 and 2007 resulting from taking private property by eminent domain. (See our 1/15/09 post here.)

Yesterday, WLJ posted a second article, by Dustin Block, on the subject available here with an excellent break down of the current law versus the proposed changes which include:

Appraisal Exchange

Currently: When eminent domain is needed to acquire property, WisDOT will perform an appraisal and make an offer to the owner. WisDOT will pay for the owner to have an appraisal completed as well, however, that appraisal does not have to exchanged with the state before appealing the initial WisDOT offer.

Proposed change: Landowners have 60 days after receiving the initial offer to complete an appraisal and prior to appealing the offer, the appraisal must be exchanged with the state.

Reaching an Agreement

Currently: Owners can accept WisDOT’s offer(s) but have 6 months to appeal the offer(s).

Proposed change: Landowners can not appeal if they agree to the offer.

Attorneys’ Fees

Currently: WisDOT pays the owner’s entire attorneys’ fees if the landowner prevails in court by obtaining at least 15% higher value than the state’s offer(s).

Proposed change: Landowners’ legal fees will be capped at 33% of the difference between the state’s offer and the final award. The 15% rule becomes null. For example, if the offer is $100,000 and the award is $150,000, the fees paid by the state would be equal to $16,500.

The article included feedback on the proposed changes from various Wisconsin eminent domain attorneys including Owners’ Counsel of America member, Alan H. Marcuvitz, in Milwaukee, who proposed his own solution:

Make fair offers when acquiring land for public projects through eminent domain, and the legal bills will drop to zero.

“The only time they [WisDOT] get stuck with fees is when they lowball the property owner,” said Marcuvitz, an attorney with Milwaukee’s Michael Best & Friedrich LLP. “How can anyone say they are being taken advantage of?”

Mr. Marcuvitz makes a very good point: how can the state say it is being taken advantage of when it is the agency exerting its power of eminent domain? Property owners and the attorneys who represent their interests are defending rights and protecting freedoms.

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DISCLOSURE:Alan H. Marcuvitz is a partner with Michael, Best & Friedrich, LLP in Milwaukee, WI and the Wisconsin member of the Owners’ Counsel of America.

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