Certified mailing required

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A property owner will be able to contest a condemnation award, despite not filing an appeal within 60 days of the award.

The Wisconsin Court of Appeals held on Nov. 11 that, because the court clerk mailed a copy of the award to the owner’s attorney, rather than sending it by certified mail to the owner, the period for appeal never began to run.

Dahir Lands, LLC, owns farmland in Sauk County. American Transmission Company, LLC, instituted eminent domain proceedings to obtain a high voltage transmission line easement over the property.

The local condemnation commission held an evidentiary hearing on the easement’s value and filed the award with the clerk of circuit court on Jan. 16, 2009.

The clerk then mailed a copy to the attorney who had appeared with Dahir at the hearing, and the copy was received on Jan. 20.

On Mar. 9, Dahir filed an appeal in the circuit court. American Transmission moved to dismiss for failure to appeal within 60 days of the filing of the award, and the circuit court granted the motion.

Dahir appealed, and the Court of Appeals reversed.

Section 32.06(8) provides that, after an award is filed with the clerk of circuit court, “the clerk shall give certified mail notice with return receipt requested of such filing, with a copy of the award to condemnor and owner.”

The court concluded that the use of the word “shall” mandated that certified mail be sent to the owner.

As a general matter, the use of “shall” in a statute is presumed to be mandatory. The court found nothing to rebut that presumption.

First, case law requires that the statutory provisions in favor of property owners in eminent domain cases be liberally construed in favor of the owner. Redevelopment Auth. of Green Bay v. Bee Frank, Inc., 120 Wis.2d 402, 409, 355 N.W.2d 240 (1984).

Second, the court noted that the requirement is unique to non-transportation condemnation cases; in transportation cases, there is no statutory requirement that notice be sent via certified mail.

“This is a clear indication of legislative intent,” the court found. “We need not investigate nor speculate as to the legislature’s reasoning in providing this extra level of clarity and protection of rights in cases that do not involve public transportation needs. What matters to our analysis is that it is a legislative choice that favors the arguments made here by the landowner.”

Third, the court found it irrelevant that the property owner had actual notice of the award, citing Pool v. City of Sheboygan, 2007 WI 38, 300 Wis.2d 74, 729 N.W.2d 415.

In Pool, a property owner filed a notice of claim against a city, alleging inverse condemnation. The city sent a notice of disallowance via certified mail, but Pool’s daughter, rather than Pool, signed as the recipient, contrary to sec. 893.80(1g).

The Supreme Court held it irrelevant that Pool had actual notice, and concluded that direct service on the claimant was required to commence the running of the statue of limitations under the statute.

Finally, the court found that policy reasons support the requirement, because it avoids factfinding and credibility determinations. “[American Transmission] urges a rule that would call upon courts to delve into the facts alleged regarding actual notice of various actors in a dispute, instead of simply looking to see whether the requirements of Wis. Stat. sec. 32.06(8) were met.”

The court distinguished Big Valley Farms, Inc. v. Wis. Public Serv. Corp., 66 Wis.2d 620, 225 N.W.2d 488 (1975), because the landowner in that case expressly waived personal service.

Because the clerk of court never fulfilled its obligation to send Dahir Lands the award via certified mail, the period in which it could appeal never began to run. Accordingly, the court reversed the dismissal of the appeal.

David Ziemer can be reached at [email protected].

What the court held

Case: Dahir Lands, LLC v. American Transmission Co., LLC, No. 2009AP2583

Issues: Must the clerk of circuit court strictly comply with sec. 32.06(8) to trigger the clock for appeal under subsec. (10)?

Holdings: Yes. No considerations rebut the presumption in favor of strict compliance.

Attorneys: For Plaintiff: Kim Grimmer, Madison; For Defendant: Mark J. Steichen, Katherine Stadler, Hannah L. Renfro, Madison