Condemnation work on the rise

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It seems impossible to drive anywhere in Wisconsin without encountering road work.
Federal stimulus money has accelerated several highway and city street projects in the state, as well as plans to construct upwards of 50 intersection roundabouts.

And all those orange barrels are expected to create more green for condemnation lawyers.

“It’s kind of exploding,” said attorney Brian C. Sajdak, of Wesolowski, Reidenbach & Sajdak SC in Franklin.

Sajdak is currently working with the village of Hales Corners and the city of Franklin on a pair of planned overhauls to Highway 100 and South 27th Street, two major streets in the metro-Milwaukee area.

In addition to advising on the acquisition of both public and private property along the construction routes, Sajdak is working on tax assessment issues and property transfer agreements.

“In the next year, we’re going to see more of those projects getting to the point where acquisitions are going to take place,” he said. “And issues like how much money is involved and environmental concerns have to be addressed first.”

Milwaukee real estate attorney Charles P. Graupner dedicates about 50 percent of his practice to eminent domain issues. He is currently representing a landowner challenging a plan to construct an entrance ramp on Highway 43 in Sheboygan County specifically for Whistling Straits Golf Course.

“It’s an interesting case because the ramp would only be open one week a year and it creates the question of whether the project is public or private use,” said Graupner, of Michael Best & Friedrich LLP.

Aggressive projects breed lawsuits

Because cities and the state are now aggressively looking to acquire property to advance projects, there’s a risk that landowners will be offered less than fair-market offers for their property, said eminent domain attorney Michael R. Bauer.

The result: increased litigation.

“Some of the appraisals I see from consultants hired by the state are way off on fair market value, and we have no choice but to litigate,” said Bauer, of Bauer & Bach LLC in Madison.

He is currently challenging a proposed roundabout in the village of Waunakee on behalf of a gas station, arguing that it will reduce traffic flow and ultimately business at the busy intersection.

Reinhart Boerner Van Deuren SC real estate attorney John M. Van Lieshout said condemnation referrals at his office are on the rise, and more of these cases are ending up in court than in the past.

“More commercial sites have a feeling that offers are insufficient, and they go to court,” he said.

Bauer, a former supervisor at the Department of Transportation, said the state is contracting with independent appraisers, and that has contributed to lower offers.
“I think the trend is away from state employees being involved as much,” he said.

Sajdak, who works for both municipalities and private entities, said one of the elements driving business for attorneys on both sides is that clients have a “real concern or uneasiness about projects that are still in the planning stages.”

“The biggest issue I’m seeing now is landowners asking, ‘If I improve my property realizing it will be acquired, am I shooting myself in the foot with how much I’ll be able to recover down the road?’” he said.

Van Lieshout, who recently co-authored “Wisconsin Condemnation Law and Practice,” noted that a number of his referrals come from family attorneys who were contacted by clients.

Attorneys who helped set up wills or closed on a house may often be able to assist in a basic condemnation process, said Van Lieshout, and those with a background in real estate, litigation or trust and estates may be able to do more.

But in complex takings cases, he sees general practitioners recognizing the need to pass along the work to specialists.

“A lot of general practitioners get that initial call and those who think, ‘Should I get expertise?’ are where that first wave of work is coming from,” he said.