Supreme Court rejects new trial for I-94 eminent domain

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A Milwaukee man who claimed the Wisconsin Department of Transportation undervalued his property by as much as $600,000 in a case tied to the construction of the Marquette Interchange won’t get a new trial.

On Thursday, the Wisconsin Supreme Court upheld appellate and circuit court decisions that denied Basil Ryan Jr.’s request to call engineering and appraisal witnesses in a 2008 trial to combat WisDOT’s assessment of remediation costs for his property.

At issue was the estimated cost of removing petroleum contaminants from about 10 vacant acres at 260 N. 12th St., Milwaukee.

In 2005, WisDOT offered $1.348 million for the land, which included the cost of remediating the property, as part of the renovation of Interstate 94 and the Marquette Interchange.

Ryan rejected the offer. On March 28, 2005, WisDOT recorded in the Register of Deeds Office in Milwaukee County an award of damages equal to the offer for the land and took Ryan’s property.

Ryan sued WisDOT in Milwaukee Circuit Court on the grounds an independent appraiser valued the property at $3.497 million.

The case went to trial, and in 2008 a jury awarded Ryan $2,001,725 as just compensation for the taking of his property, meaning WisDOT had to pay another $653,725.

But Ryan’s attorney Dan Biersdorf, of Biersdorf & Associates in Minneapolis, appealed the case and argued his client should have been able to call witnesses to dispute WisDOT’s remediation assessment.

He said Ryan had two independent experts who would have testified that because the property was eligible for public grants, it would have cost $10,000 to remediate.

“Who knows what the jury would have decided,” Biersdorf said, “if we could have put in our side of the story?”

But the circuit court granted a WisDOT request to deny the testimony because Ryan failed to meet the deadline for witness submission.

He was supposed to submit Feb. 15, 2006, but did not provide witnesses until May 15, 2008.

During that time, Ryan changed attorneys, and Biersdorf was brought on in 2008. He said he immediately filed the witness request with the court.

“Basically,” Biersdorf said, “the court said, ‘Too bad. Because the prior attorney didn’t do it, we’re not going to let you do it now.’”

Both the appellate court and Supreme Court upheld the ruling on the grounds the circuit court has discretion to grant or deny witness submissions after an agreed upon date.

Gregg Hagopian of the Milwaukee city attorney’s office filed a brief with the Supreme Court in support of WisDOT’s position and said the original jury verdict was fair compensation for Ryan.

Hagopian said the appraisal submitted by Ryan did not take into account whether the land was contaminated or the cost of removing any contaminants.

“If you have environmentally contaminated property,” Hagopian said, “you would expect the buyer and seller in the private marketplace to recognize that and set a value based on that reality.”