The Appeal Process In Wisconsin Legal Principles for Bringing Suit Against the Sovereign.

The Appeal ProcessIn Wisconsin

Legal Principles for Bringing Suit Against the Sovereign

Presentation Contents:

1. WisDOT Acquisition Process Flow Chart

2. WisDOT Average Acquisition Timelines

• Appraisal Phase

• Negotiation Phase

• Litigation Phase

3. Types of Appeals:

• Statutory Process

• Applicable Timelines

“The first is a standard condemnation proceeding in which the public agency does not take possession and title to condemned property until after a jury has awarded just compensation; thus, the ‘taking’ and the ‘compensation’ are contemporaneous and occur at the conclusion of court proceedings. Until then, the property owner bears the risk of loss to the property. ( Citations omitted). The second procedure, a quick-take proceeding, allows a public agency to take possession of a condemned property and the property owner to obtain the probable compensation for that property well in advance of the termination of court proceedings. […]

City of South Gate v. Jauregui 2012 WL 89870, 1 (Cal.App. 2 Dist.,2012)

“Quick Take” Defined

Part One: Acquisition Flow Chart

Part Two: WisDOT Average Acquisition Process Timelines

Maximum Negotiation TimelineMinimum Condemnation Timeline

Event Days Total

Nominal 1st Meeting With Owner -27 -178

Agent Appraisal Meeting With Owner -14 -151

Appraisal Submitted for CO/Regional Review and Offering Price Approval

-30 -137

Appraisal To Owner -14 -107

60 Day Owner Appraisal Period -60 -93

Jurisdiction Offer to Owner -3 -33

20 Day Jurisdictional Offer Negotiation Period -20 -30

Award of Damages Recorded – Rights Vest -3 -10

Right of Way Certification -7 -7

Plans Specifications and Estimates 0 0

Construction Contract Letting Date +120

Project Timeline:

Tasks Necessary to Completion:•Appraisal Contract awarded to consultant

• Approximate Time: 2 months

Appraisal Phase:

•Draft Appraisal submitted to WisDOT for Review and Offering Price Approval

• Approximate Time: 2 months

Appraisal Phase:

Negotiation Phase

Negotiation Phase:

T-minus approx’ (107) Days to Parcel Completion

Litigation Phase

•Wisconsin Dept. of Justice Represents WisDOT

•Regional Litigation Coordinators assist

•T plus zero to 4 years, or more!!

Part 3: Procedure for Property Owner Challenges to WisDOT Acquisitions and Relocations

How It Works in Wisconsin’s

Quick Take Process.

What about the states’ Immunity from Suit – i.e., Sovereign Immunity?

•Wis. Const. Article IV, Section 27. The legislature shall direct by law in what manner and in what courts suits may be brought against the state.

•****States’ condemnation statutes are considered a broad waiver of sovereign immunity, and, along with claims founded directly on the constitution itself, are the exclusive methods for an aggrieved land owner to claim just compensation for the taking or occupation of private property.****

“The doctrine of sovereign immunity cannot bar an action for just compensation based on a taking of private property for public use even though the legislature has failed to establish specific provisions for the recovery of just compensation.” Zinn v. State, 112 Wis.2d 417, 334 N.W. 2d 67 (Wis. 1983)

Comparison: State Constitutional Takings Clauses –Takings vs Takings and Damages

Wisconsin: ARTICLE I, Sec. 13.“Private Property for public use.  SECTION 13.  The property of no person shall be takenfor public use without just compensation therefor.”

Minnesota: ARTICLE I, BILL OF RIGHTSSec. 13. Private property for public use. Private property shall not be taken, destroyed or damaged for public use without just compensation therefor, first paid or secured.

Illinois: ARTICLE 1 BILL OF RIGHTSSECTION 15. RIGHT OF EMINENT DOMAINPrivate property shall not be taken or damaged for public use without just compensation as provided by law. Such compensation shall be determined by a jury as provided by law.

Michigan: ARTICLE X Property§ 2 Eminent domain; compensation.Sec. 2. Private property shall not be taken for public use without just compensation thereforebeing first made or secured in a manner prescribed by law. […]

Howell Plaza II v. DOT: 92 Wis.2d 74, 284 N.W.2d 887 (Wis. 1979) Absence of a Taking; Condemnation Blight

•Howell alleged inverse condemnation where Highway Comm’n announced path for future freeway

•Alignment would have traversed 50 acre undeveloped area of 60 acre larger commercial parcel.

•EIS for planned corridor not yet prepared

•After taking steps, Highway Comm’n terminated all efforts to purchase property citing challenges to the legality of the early acquisition process.

•Within one year, LO brought its claim for inverse condemnation

•LO Expert testified that LO unable to develop approx. remaining acres

•Issue: Was LO property taken or occupied?

•Burden on LO to establish that governmental activities deprived LO of all or substantially all of the beneficial use of the property

Howell Plaza II v. DOT: Con’t•In WI There Must Be A Taking before there can be claim for just compensation

•Incidental damages (a/k/a “consequential” damages) to property resulting from governmental activities, or laws passed in the promotion of the public welfare, is not considered a taking of the property for which compensation must be made

•WI Constitution, like its federal equivalent “does not undertake … to socialize all losses, but [only] those which result from a taking of property.

•There need not be a physical occupation or possession by [the state] for there to be a compensable taking

•Broad Rule: The fact that LO suffered a loss as a result of the announcement and initial planning of a public improvement has not generally been held to constitute a taking of property

Howell Plaza II v. DOT: Con’t

Held: [The] uncertainty […] often a result of a planned, public improvement which requires the eventual acquisition of private property […] does not constitute a taking of all or substantially all of the beneficial use of the property.

Judgment of the circuit court – Affirmed.

But Compare: Moorhead Economic Development Authority v. Anda, 789 N.W.2d 860 (Mn 2010)

Procedure for Available Appeals in Wisconsin

•Right of Condemnation – a/k/a, “Right to Take”•Appeal for Greater Compensation:

• Appeal from Conveyance, or• Appeal from Award of Damages

•“Inverse Condemnation,” a/k/a, Condemnation Proceedings Instituted By Property Owner •Relocation•Drainage Claims

Condemnee Litigation Expenses – The Great WI Fee Shifting Provision

Litigation Expenses defined as the sum of “all costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees necessary to prepare for or participate in actual or anticipated proceedings before the condemnation commissioners, board of assessment or any court

Condemnee Standard to prevail: commission award, court or jury verdict exceeds the jurisdictional offer or the highest written offer prior to the JO by at least $700 and at least 15%

Liability for fees accrues 14 days after date of taking and includes interest

Appeals for Greater Compensation:Two Approaches

I. Appeal from conveyance (Deed)• Must be brought within 6 months after recording • Amount of compensation treated as the award• Date of recording treated as the date of taking and the date of

evaluation• Right of appeal granted to all listed parties with an interest of

record, e.g., mortgages, liens, long term tenancies

II. Appeal from Award of Damages• Must be brought not later than 2 years from the date of taking,

as defined above• Right of appeal granted to all listed parties with an interest of

record, e.g., mortgages, liens, long term tenancies

Court Action to Contest Right of Condemnation, a/k/a, “Right to Take”

•Must be brought within 40 days of service of the Jurisdictional Offer•Allows LO to Challenge the right of the condemnor to condemn the property described in the JO for any reason other than that the amount of compensation is inadequate

•Trial of the issues to be “given precedence over all other actions” in [the circuit court] not then on trial.

•Prevailing LO awarded litigation expenses

Condemnation Proceedings Instituted By Property Owner – a/k/a, “Inverse Condemnation”

•Action commenced by verified petition:• Shall describe the land being occupied• Shall be served upon the “person” occupying the land

•Requires court to make a finding of occupation without having the right to do so – i.e., a trespass

•Matter will be treated as though LO received a JO and has failed to accept, and assumes LO not questioning the right to take

•Successful LO eligible to collect litigation fees under fee shifting provisions

•6 year limitations period applies. BOP on LO to establish commencement date

Relocation Claims: Mixture of Administrative Review and Direct Court Proceedings

•Optional procedure: for Displacee to appeal claim denial for review by Wis. Dept. of Admin. – agency with program oversight – mediation model

•Initial claim filed with condemnor•Claim to be filed after damages have fully materialized but not later than two (2) years after condemnor takes physical possession of the property•If claim not allowed within 90 days after the filing, claimant has right of action against condemnor

Right of Action in Circuit Court:

Note: Such lawsuits falloutside WI’s litigation fee shifting provisions

Drainage or Flooding Claims

•Must be brought within 3 years after alleged damage occurred

•Claimant must file claim with gov’t agency

W/n 90 days of claim, agency must:•Correct the cause•Acquire the flooding rights•Deny the claim

Thereafter, matter proceeds under inverse condemnation procedureSuit is for “such other relief, other than damages, as may be just and equitable.”

Wisconsin’s Acquisition and Litigation Statistics

Wisconsin’s Litigation Payments