Easement

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WI Court of Appeals – District III

Case Name: Lila Zastrow, et al. v. American Transmission Company LLC, et al.

Case No.: 2017AP1848

Officials: STARK, P.J.

Focus: Easement

This appeal involves efforts by American Transmission Company LLC and ATC Management Inc. (collectively ATC) to acquire an easement over property owned by Lila Zastrow and David Hendrickson (collectively, Zastrow) in order to construct two high-voltage transmission lines. The Public Service Commission (PSC) issued ATC a certificate of public convenience and necessity (Certificate) for the construction of the transmission lines. After receiving a jurisdictional offer from ATC, Zastrow filed the instant lawsuit under WIS. STAT. § 32.06(5) (2015-16), challenging ATC’s right to condemn her property. Zastrow contended ATC had failed to negotiate with her in good faith regarding the terms of a vegetation management plan within the proposed easement. She argued such good faith negotiation was required under § 32.06(2a).

The circuit court granted summary judgment in favor of ATC, concluding WIS. STAT. § 32.06(2a) does not require a condemnor to negotiate in good faith regarding any subject other than compensation. We agree with the circuit court’s conclusion. We further conclude that nothing in the Certificate required ATC to negotiate with Zastrow regarding the terms of a vegetation management plan. We also reject Zastrow’s argument that ATC made false statements about its obligation to negotiate, in violation of WIS. STAT. § 32.29. Ultimately, we conclude that, while framed as a challenge to ATC’s duty of good faith negotiation, the instant lawsuit is actually an attempt to indirectly challenge the PSC’s failure to include specific vegetation management conditions in the Certificate. However, Zastrow did not seek judicial review of the PSC’s decision, and she has therefore forfeited her right to consideration of that issue. For all of these reasons, we affirm the circuit court’s grant of summary judgment in favor of ATC.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.