“Ask Your Attorney” Column

About The City Taking Your Property

Dear Counselor: My wife and I own a store at the corner of two State Highways. The State has decided to widen and reconstruct the road, and sent us a drawing of what they are doing. They say they will only have to take part of our property, but their construction drawing shows that most of our parking lot is going to be gone. Their letter says they only owe us for the value of the land they are taking, but if they take our parking lot, it will put us out of business. What is the law?

Dear Client: Take heart — no less than the US and Wisconsin Constitutions protect you!  Both require the government to pay you “just compensation” for the taking of your private property for public use.  Wisconsin law sets out various procedures when the Department of Transportation, or some other State or municipal agency, decides they need your property, or some part of it.  The Wisconsin Supreme Court has ruled that if a governmental authority decides that it only needs a part of your property, but what you would be left with amounts to an “uneconomic remnant”, then they have to “buy” the whole thing.  They can’t get away with taking too little.  An “uneconomic remnant” is defined as that part of your property remaining after a partial taking that, because of its size, configuration or condition, is of little value or has a substantially impaired economic viability. The Supreme Court has stated that whether the part left amounts to an uneconomic remnant, or not, depends upon the economic viability of your business as a result of the partial taking.  So, if you can show that the loss of essentially your entire parking lot would severely restrict your business, as you argue, then they have to pay you the value of your entire property, and not just the piece they took.  These kinds of arguments should be presented not only by you, as the owner/operator, but also by expert appraisers who are qualified to testify along those lines.  So, stand up for yourselves, and if the government needs your property for a public purpose, make them pay fair value for the effect of the taking.  Good luck, and let me know if you need further help in your negotiations

John L. Maier, Jr.

Sweet & Maier, S.C., Attorneys
114 Church St.
Elkhorn, Wisconsin