Blight unseen

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When it comes to use of the state’s eminent domain laws, one man’s blight can be another man’s beauty.

“It’s a lot like looking at the Mona Lisa,” said Niebler, Pyzyk, Roth & Carrig attorney Robert W. Roth. “These laws are really in the eye of beholder.”

But Sen. Mary Lazich, R-New Berlin, is looking to remove the subjectivity involved when municipalities deem property blighted in the name of commerce.

She argued that the current laws are both broad and confusing when it comes to a clear definition of blight.

Specifically, Lazich took issue with language in Wisconsin’s General Municipality Law (Wis. Stat. 66.1333(2m)(b)3), which in part, defines a blighted area as one which “substantially impairs or arrests the sound growth of the community.”

“That is so broad that the Taj Mahal would probably fall into that definition,” she said.

Blight is also defined in Chapter 32 of the state’s eminent domain statutes, but the language primarily relates to residential properties that are abandoned or dilapidated.

Earlier this year, the City of Greenfield planned to use its eminent domain powers to acquire several operating business properties as part of a redevelopment plan along Loomis Road and Interstate 894.

But property owners fought the move and in August, the city put the redevelopment plans on hold.

In June, a groundswell of public criticism prompted Oak Creek to abandon its plan to acquire the 25-acre farm of 94-year-old Earl Giefer as part of a development plan.

A clearer definition of blight could prevent a repeat of the situations in Greenfield and Oak Creek, suggested Jason Adkins, staff attorney in the Minnesota Chapter of the Institute for Justice.

He represented property owners in the U.S. Supreme Court case Kelo v. City of New London, 545 U.S. 469 (2005), which prompted eminent domain reform in 42 states, including Wisconsin.

In the wake of the decision, the state instituted a ban on transfers of non-blighted property from one private party to another and also prohibited false blight determinations on residential properties, unless abandoned.

“The key is ensuring that cities cannot use blight as a pretext for doing old-style redevelopment takings,” said Adkins. “Right now you have cities testing eminent domain power and the ambiguity in Wisconsin law has allowed them to do so.”

While public opposition put an end to the situations in Oak Creek and Greenfield, Reinhart Boerner Van Deuren real estate litigator John M. Van Lieshout suggested that eventually, municipalities will push back.

If that happens, it may be up to a judge to interpret the meaning of blight.

“It could be a place like Wauwatosa or Hartford which wants to condemn land for the high speed rail,” Van Lieshout said. “Even if people oppose it, that situation is certainly a candidate for bare-knuckle boxing where nobody backs down.”

Historically, Van Lieshout said courts tend to favor municipalities in eminent domain cases in which officials argue that takings tied to development will increase the tax base or create more jobs.

But Roth said allowing cities to condemn someone’s current use of their property simply because of the way it looks is “a little rough.”

“A narrow definition would be more protective of individual property rights and those are right at the core of our constitutional freedoms,” he said.

Lazich, whose constituency includes Greenfield residents, agreed that the law needs to be clearer to provide security for property owners.

As it is, she said “clearly, they would not have the law on their side.”

“If businesses and property owners can be scooped up and swallowed so easily, then there is a problem with the law,” said Lazich, who plans to introduce legislation to clarify the statutes in early 2011.

Jack Zemlicka can be reached at [email protected].