Senate bill targets eminent domain

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State Sen. Fred Risser might have more firsthand knowledge of eminent domain than any other member of the Wisconsin Legislature.

Dane County in 2002 forced the Madison Democrat to sell his law office, at South Hamilton and West Wilson streets, for $728,800 so the county could build a new courthouse. Risser fought the sale and asked for twice as much money for the office.

“I didn’t really want to give it up, and I wanted the price they paid the next-door neighbor for square footage,” he said. “They didn’t give me that much, so of course we had quite a hassle on it.”

Nonetheless, Risser opposes a bill making its way through the Legislature that would prevent other property owners from losing their land to similar public seizures.

The bill, authored by Republican Sen. Mary Lazich of New Berlin, would narrow the definition of blighted property to make it harder for municipalities to force the sale of land. The first step in eminent domain is for governments to classify a parcel of land as blighted.

Under Lazich’s bill, the term blighted would refer to a property that has been cited for building violations, with at least two notices sent to the property owner. Also, the cost of remedying the code violations would have to “exceed an amount equal to 50 percent of the most recent assessed value of the buildings, excluding the value of the land.”

The Senate Judiciary Committee was scheduled to vote on the bill in a Wednesday session. If the bill passed, as expected, it would advance to the Senate.

Risser, a member of the Judiciary Committee, said he empathized with the need to protect property owners, but Lazich’s bill went too far.

“It is redefining (blight) in such a way that it would preclude local units of government from cleaning up certain areas they’d like to clean up,” Risser said. “It would preclude them from cleaning environmentally contaminated sites, preclude them from certain vacant properties that should be cleaned up.

“It would prohibit a lot of redevelopment that local units of government are currently doing.”

Risser cited Milwaukee as a city that would find the new definition insurmountable if the city tried to claim run-down property to fix neighborhoods.

Lazich, though, said the current definition of blight lets municipalities target any property owner whose land was in the way of new development that would pad tax rolls.

A “blighted area,” according to state law, refers to “any combination of factors … conducive to ill health, transmission of disease, infant mortality, juvenile delinquency and crime, and is detrimental to the public health, safety, morals or welfare.”

That definition, Lazich said, let the city of Greenfield, which is in her district, briefly consider, and then reject, using eminent domain to buy several parcels for a new mixed-use development.

Some of the property Greenfield wanted to classify as blighted, Lazich said, included “an auto repair shop that … had even received beautification awards.”

Greenfield business owners, she said, “were very much disenfranchised in their private property rights.”

“I said, ‘How could this be happening?'” Lazich said.

But her bill has drawn opposition not only from municipalities, but also from real estate developers.

Michael Mooney, chairman of Brookfield-based MLG Commercial LLC, said Republicans failed to consider the full effect of the bill.

“I think it’s going to be more detrimental than beneficial,” he said. “Those of us in the trenches who deal with these issues are trying to communicate the real-world impacts.”

Municipalities would have no resources to improve neighborhoods or create large developments that would serve the public good, Mooney said.

The bill, he said, “presents opportunities for people to let greed get in the way of cooperating, or just be obstructive. One property owner can eliminate an entire major project.”

Supporting some use of eminent domain doesn’t mean trampling the rights of property owners, Mooney said, but rather letting cities and counties improve their landscapes.

“Even though we are naturally protective of property owners’ rights,” he said, “we realize there are times when it’s in the best interest of everybody that municipalities step up and use its authority.

“This would pretty much eliminate that possibility.”

But Lee McGrath, legislative counsel for the Minnesota chapter of the Institute for Justice, said overreach of municipal power had necessitated the bill. Institute for Justice has fought to weaken eminent domain power across the United States, including in Wisconsin, and represented a Connecticut property owner in a 2005 U.S. Supreme Court case that set legal precedent for eminent domain. The institute lost the case when the court sided with the city of New London, Conn., and, by extension, affirmed municipal power to use eminent domain.

“This bill allows municipalities to continue to use eminent domain in the traditional way — for roads, government buildings and remediation of blight,” McGrath said. “What it stops is the disingenuous use of blight findings for the benefit of private development corporations.”

The bill, McGrath said, merely tightens the Wisconsin law that was established to protect property owners.

Risser, though, said the only real problem with Wisconsin’s eminent domain law — as he has experienced it — was that it didn’t provide enough money for property owners whose land was seized.

“This bill doesn’t relate to compensation,” he said. “It only relates to what can be taken.”