2010AP1447 Waller v. American Transmission Co., LLC

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Property
Condemnation; uneconomic remnants

When a property owner properly raises the issue of whether he will be left with an uneconomic remnant pursuant to sec. 32.06(3m), a circuit court must first hold an evidentiary hearing under sec. 32.06(5) to determine whether the remaining parcel is an uneconomic remnant.

“Whether the remaining property after a partial taking has ‘little value’ or is ‘of substantially impaired economic viability’ is a factual question for the circuit court to resolve. A $10 million property subjected to a partial taking leaving a $100,000 property might be an uneconomic remnant, whereas the partial taking of a $150,000 property leaving a $100,000 property might not be an uneconomic remnant. The reverse could also be true depending upon the facts and circumstances of each case. Contrary to what the circuit court stated, the inquiry does not end once the dollar value of the remaining property is determined—a circuit court is also expected to examine whether the partial taking ‘substantially impaired [the] economic viability’ of the property.”

“Our holding that a court must first determine whether a property is an uneconomic remnant before moving on to the just compensation issue is bolstered by the text of Wis. Stat. § 32.06(5) and case law. When a property owner contests a condemnation in circuit court under § 32.06(5), ‘such action shall be given precedence over all other actions in said court then not on trial.’ Id. As an uneconomic remnant claim is properly brought in a § 32.06(5) action, see Waller I, 322 Wis. 2d 255, ¶17, a court must prioritize an uneconomic remnant determination over a just compensation determination. Additionally, in Waller I we cited to case law that explained that “procedural issues must be resolved before an administrative body or a court calculates compensation.” Id., ¶14 (citing to Arrowhead Farms, Inc. v. Dodge County, 21 Wis. 2d 647, 651, 124 N.W.2d 631 (1963), and Rademann v. DOT, 2002 WI App 59, ¶¶37-38, 252 Wis. 2d 191, 642 N.W.2d 600). The reason for this is to allow the circuit court or the local condemnation commission to devote its full attention to the just compensation issue without being distracted by collateral procedural matters. Waller I, 322 Wis. 2d 255, ¶14.” Reversed and Remanded.

Recommended for publication in the official reports.

2010AP1447 Waller v. American Transmission Co., LLC

Dist. II, Walworth County, Race, J., Reilly, J.

Attorneys: For Appellant: Braun, Hugh R., Milwaukee; For Respondent: Steichen, Mark J., Madison; Stadler, Katherine, Madison; Cahill, Bryan J., Madison

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