Takings Case Analysis

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The court states that the case is distinguishable from Dotty Dumpling’s Dowry, Ltd., v. Community Development Authority of the City of Madison, 2002 WI App 200, 257 Wis.2d 377, 651 N.W.2d 1, but it is difficult to see how.

Distinguishing Dotty Dumpling’s would require the court to withdraw certain language from that case, something only the state Supreme Court can do.

In Dotty Dumpling’s, the CDA offered the business roughly half a million dollars for her property, but obtaining and renovating a suitable replacement property would actually cost one and half million. Given the million dollar discrepancy, the restaurant argued that the City failed to provide a comparable replacement property.

Rejecting the argument, the court of appeals wrote, “In Dotty’s view, a court may not grant a condemnor possession of condemned premises until a replacement property deemed acceptable by the condemnee is procured, regardless of its acquisition costs, all of which the condemnor must bear or tender.” Dotty Dumpling’s, 651 N.W.2d at 10.

In the case at bar, the court iterates this statement verbatim. Par. 26.

What the court does not do, however, is even acknowledge the next two sentences in Dotty Dumpling’s, to wit: “Alternatively, Dotty’s interpretation of the ’made available’ requirement implies that it will never have to vacate the condemned property if the Authority cannot identify a replacement property acceptable to Dotty which can be acquired for an amount not exceeding the award of compensation plus the maximum relocation benefits to which Dotty is entitled. Either result is unreasonable and contrary to the legislative intent regarding the ‘made available’ requirement… (emphasis added).”

Either those statements are mere dicta, or the case at bar was decided incorrectly, because that is exactly what the court has held.

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Although the court does not put forth the argument (as noted, it did not even cite these sentences), it could have argued that in the case at bar, there were no comparable properties at all, while the passage in Dotty Dumpling’s refers to properties that are comparable, but would require prohibitive cost to be made comparable.

However, the difference is merely semantic; this is the United States of America; for enough money, a comparable replacement property can always be found or created.

Accordingly, parties aggrieved by this decision, or the decision in Dotty Dumpling’s, should note this inconsistency, and preserve for Supreme Court review, the issue of which one was correctly decided, because it cannot be the case that both were.

– David Ziemer

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David Ziemer can be reached by email.