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Attorney rallies opposition to state DOT rule

By: dmc-admin//March 30, 2009//

Attorney rallies opposition to state DOT rule

By: dmc-admin//March 30, 2009//

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An out-of-state attorney is organizing opposition to a Wisconsin Department of Transportation budget proposal that would make it more difficult to fight the agency over land seized for road projects.

The proposal limits the amount of attorney fees landowners can recover when challenging WisDOT over cases involving eminent domain, which is a state law allowing government to buy land for public projects. In some cases, landowners appeal WisDOT appraisals of land needed for road projects to get more money for their properties.

But if the proposal becomes law, landowners appealing the WisDOT appraisals might end up owing their lawyers more money than they win in court, said Kelly Keady, an attorney with the Minneapolis law firm Biersdorf & Associates S.C., which specializes in eminent domain cases. Essentially, the proposal would make it more difficult for landowners to contest WisDOT appraisals, he said.

“This is really giving people the shaft,” said Keady, who said he represented several clients in Wisconsin who won higher sale prices from WisDOT through legal settlements or court cases.

The new law also would cost lawyers business, he said, because they would have to turn down winnable cases knowing WisDOT would not have to reimburse landowners for all of their attorneys fees.

“Cases where the state wants to take 10 to 20 acres from a farmer would not be economical to pursue,” Keady said.

Louis Prange, who owns a dairy breeding business in Fond du Lac, said he fought WisDOT for three years over land the agency needed to rebuild Highway 151. The state offered $14,000, and Prange eventually went to court and won $28,000 in 2007, he said.

Prange said his legal fees were more than the settlement amount, but the state had to cover those bills.

Under WisDOT’s proposed law, the agency would have had to pay legal fees equal to one-third of the increase in the final settlement. In Prange’s case, that would have been about $4,700, which, he said, would have left him with a legal bill higher than his settlement.

WisDOT contends in its budget proposal the agency needs the new law because payouts in eminent domain cases increased from $5 million in fiscal year 2004 to $11 million in 2007. A majority of the increase appears to be going to property owners’ legal fees, according to the budget proposal.

WisDOT representatives did not return calls for comment before deadline. William Cosh, spokesman for the Wisconsin Department of Justice, which represents WisDOT in eminent domain cases, said the department has no comment.

Representatives from Biersdorf & Associates are planning to attend at least some of the state Legislature’s Joint Committee on Finance’s six budget hearings around the state, Keady said. The firm, he said, wants more people around the state to speak against the proposal.

“The way they slipped this into the budget bill, they don’t want the community as a whole to know about this,” Keady said. “It just smells sneaky.”

Attorney Michael Bauer said he opposes WisDOT’s proposal based, in part, on his experience defending the agency in eminent domain cases. He supervised the state’s eminent domain lawyers while working for attorneys general Peg Lautenschlager and J.B. Van Hollen. Bauer said the experience left him believing WisDOT underbids property needed for road projects.

“There is institutional resistance to paying landowners just compensation,” he said about WisDOT.

Bauer, who now works on eminent domain cases with the Madison law firm Murphy Desmond S.C., described WisDOT’s eminent domain proposal as “outrageous.”

“It’s the most anti-property owner proposal I’ve seen in the 20 years I’ve practiced law,” he said. “They aren’t trying to tweak the system. They’re trying to uproot the entire (system).”

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