Eminent domain — Some want Wisconsin lawmakers to step in: Lacrosse (WI) Tribune, 8/21/05

By Anita Clark

A recent U.S. Supreme Court decision on a Connecticut city's condemnation powers has sparked an emotional reaction among citizens concerned about government's ability to seize private property.

From Congress to county boards to Wisconsin's Legislature, the eminent domain issue has drawn attention from property-rights groups and opponents of big development.

"I call it the Wal-Mart syndrome," said Donald Downs, a professor of political science at UW-Madison.

In the Connecticut case, called Kelo v. New London, the high court upheld the city's use of its condemnation powers for private commercial development.

Does Wisconsin need to review its laws on eminent domain? It depends on whom you ask.

"This is just ludicrous. People want their land protected," said state Sen. Dave Zien, R-Eau Claire, who has introduced a bill called the Property Rights Protection Act.

But Madison's city attorney, Michael May, stated flatly: "Our state does not allow a taking similar to that utilized in Connecticut."

Wisconsin law allows condemnation of land for public use and creates a process for condemnation of blighted areas slated for redevelopment.

And "(the) Kelo decision has opened the door to an even more expansive reading of that language," Assistant Attorney General Daniel Bach concluded.

While Madison has had a few long and well-publicized condemnation struggles — most notably with Dotty Dumpling's Dowry, when the restaurant was forced to move to make way for the Overture Center — condemnation for development is "something we do as an absolute last resort," said Mark Olinger, director of the city's Department of Planning and Development.

Soon after the June 23 court ruling, Attorney General Peg Lautenschlager scheduled four public meetings around the state seeking citizens' opinions.

At the first one, in Janesville, about two dozen people showed up and 10 of them spoke, all politely expressing a deep distrust of governmental ties to developers.

It felt like a threat, said Michael Krafjack, when a developer called him the day after the court decision to talk about 10 acres he owns in the town of Rock that has a sewer line adjacent to it.

"He threw that (court ruling) in my face first thing," Krafjack said.

Laws protect citizens
Another speaker, Alfred Lembrich of Janesville, said governments promise things, but the people in office change and "the only way the citizen is protected is by the laws."

Despite such worries, many people familiar with eminent domain in Wisconsin say the law is not abused and that condemnation actions are pursued carefully in a public process by elected local officials.

There are two routes for government to condemn property in Wisconsin:
  • Acquiring land for traditional public use — generally for streets, parks or water and sewer systems.
  • Redeveloping a blighted area, which requires a specific process and a finding that at least half of the property is blighted.

"Eminent domain in Wisconsin is overwhelmingly used for acquiring property for what would clearly be public use," usually for streets or roads, said Michael King, administrator of the Community Analysis and Planning Division of Dane County.

"The issue before the Supreme Court was whether economic development could be a public use," he said.

That's the problem, skeptics say.

'In a real bind'
Municipalities say they need condemnation as a tool in times of tight budgets. In Sun Prairie, for example, the city used condemnation to acquire property, including a few homes, for its successful $44 million public-private downtown revitalization project. Paul Evert, the city attorney, described the land acquisitions as friendly and said they were vital to the project's success.

"Municipalities are in a real bind," said Michael Christopher, attorney for the Wisconsin chapter of the American Planning Association. "There's no money. So the only way that economic revitalization is going to occur is to have government use its resources with the private sector in order to get something done."

Even so, he said, municipalities try hard to avoid condemnation, which for both sides can lead to time-consuming, expensive legal battles with uncertain outcomes.

One Madison area facing redevelopment is near Todd Drive and the Beltline, property acquired from the town of Madison and part of a proposed $18 million office, retail and parking project.

City officials hope most of the property will be sold voluntarily, but the city may have to condemn an adult video store, Selective Video, and find a new home for it.

What is blight?
Also in the development path is the nonprofit Madison Bridge Club, 2318 Todd Drive, where members gather to play cards. It's owned by Duane Steinhauer and two partners.

Steinhauer is suspicious about the definition of blight.

"All you have to do is have a crack in the foundation or a shingle out of place," he said. "Ninety percent of the blight they find is normal routine maintenance that everybody does every year or two."

A long paragraph in state law defining a blighted area includes such criteria as dilapidation, deterioration, age or obsolescence, inadequate ventilation or light, high density of population and overcrowding and conditions conducive to ill health.

Is Steinhauer bitter about the possibility of his property being condemned for redevelopment?

"We took blight (a former machine shop) and we fixed it and this is how we get repaid," he said. "I'm not bitter as much as disappointed that the city treats taxpayers like that."

‘I see the pain'
Christopher, who also represents the Open Pantry store in the Todd Drive redevelopment district, said the project reflects the balancing test between private property rights and the public good.

"This is a classic dichotomy of, where do private property rights end and when is the public good going to outweigh them?" Christopher said.

Anti-government and populist arguments — the little guy versus the big power — are appealing, particularly in Wisconsin, Christopher said. "But you've got to look at what is the overall good for the community."

He said he's not aware of any situation in Wisconsin where the condemning power has abused its authority, though "that's not to say there won't be someone who disagrees with the decision."

A relocation agent who's often involved in condemnation cases urged the attorney general to fight any expansion of laws to help developers.

"I see the hurt, I see the pain, what it does to those people," said Annette DuCharme, a real estate specialist with Earth Tech, 1210 Fourier Drive. People whose property is condemned usually are unsophisticated and lack resources to fight the government, she said.

"It boils down to money," she said, though she added that Wisconsin laws offer more protection than those in some states.

Limitless scope?
Farmers are looking at the Wisconsin condemnation process in light of the court decision, said Paul Zimmerman, executive director of governmental relations for the Wisconsin Farm Bureau Federation.

They believe Wisconsin law doesn't prevent a case similar to Kelo, he said, and "what land are they going to take but farmland?"

The Wisconsin Realtors Association has analyzed the court decision and its impact here and concluded "there's no real reason to be alarmed," said Tom Larson, director of regulatory and legislative affairs.

"It does shine the light on the authority they have now," he said, citing the "limitless" scope of the blight definition. "There needs to be a balance. There needs to be some protection for people's homes, more so than we probably have now."

Lacrosse Tribune: www.lacrossetribune.com