Constitutional Law — Takings Clause — environmental contamination

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Wisconsin Supreme Court

Civil

Constitutional Law — Takings Clause — environmental contamination

Subject to the circuit court’s discretion, evidence of environmental contamination and of remediation costs are admissible in condemnation proceedings so long as they are relevant to the fair market value of the property.

“A property’s environmental contamination and the costs to remediate it are relevant to the property’s fair market value if they would influence a prudent purchaser who is willing and able, but not obliged, to buy the property. To conclude, as a matter of law, that environmental contamination and remediation costs are not relevant to a property’s fair market value, in the words of the Connecticut Supreme Court, ‘blinks at reality.’ Ne. CT Econ. Alliance, 776 A.2d at 1080 (‘Excluding contamination evidence, as a matter of law, is likely to result in a fictional property value——a result that is inconsistent with the principles by which just compensation is calculated. It blinks at reality to say that a willing buyer would simply ignore the fact of contamination, and its attendant economic consequences, including specifically the cost of remediation, in deciding how much to pay for property.’). Indeed, in this context, we view evidence of environmental contamination no differently than evidence of a leaky basement, a cracked foundation, or a dilapidated roof: in each case, if the damage and the attendant costs of repair would influence a prudent purchaser in determining how much to pay for the property, then evidence of such damage and repair costs is relevant to fair market value and therefore admissible in condemnation proceedings.”

Affirmed.

2009AP1557 260 North 12th Street, LLC, v. DOT

Ziegler, J.

Attorneys: For Appellant: Biersdorf, Dan, Minneapolis, MN; Keady, E. Kelly,. Minneapolis, MN; For Respondent: Ferris, Phillip D., Madison; Potts, Abigail, Madison