Eminent Domain in Wisconsin: The Property Owner’s Guide

Wisconsin is one of the better states in the country to be a condemnee, and the reason is Wis. Stat. § 32.28. If the compensation ultimately found exceeds the jurisdictional offer, you are deemed the successful party and your litigation expenses, including your attorney, appraisal, and engineering fees, shift to the condemnor. That single provision changes what an owner can afford to fight about. Wisconsin also gives you an unusual amount of time: two years to bypass the commission and demand a jury.

The law that governs takings in Wisconsin

Chapter 32 of the Wisconsin Statutes is the eminent domain chapter, and it splits by purpose. Section 32.05 sets out the condemnation procedure for transportation facilities and sewers. Section 32.06 sets out the procedure in other than transportation matters. The two tracks share concepts but differ in sequence, and the first question in any Wisconsin case is which one applies.

Section 32.28 supplies the litigation expense rules that apply across the chapter, and § 32.09 supplies the rules of valuation. Sections 32.19 and 32.20 govern additional items payable and the procedure for claiming them.

Two substantive limits sit outside the procedure. Section 32.03(6) restricts the ability of municipalities to condemn property for redevelopment where the property would be conveyed or leased to a private entity, a restriction enacted by 2006 Wisconsin Act 233 following Kelo v. New London. And § 32.015, added through the 2017 state budget, provides that condemnation may not be used to establish or extend a recreational trail, a bicycle way, a bicycle lane, or a pedestrian way. Wisconsin appellate courts have applied that prohibition, including to reject a village’s attempt to condemn property for a sidewalk.

Who can take property in Wisconsin

The Wisconsin Department of Transportation is the largest condemnor and proceeds under § 32.05, as do counties, cities, villages, and towns acquiring for highways and sewers.

Redevelopment authorities, community development authorities, housing authorities, school districts, sanitary districts, and utilities condemn under § 32.06. Investor owned utilities, electric cooperatives, and pipeline companies hold the power under their enabling statutes and use the § 32.06 track.

Regardless of the condemnor, § 32.015 removes recreational trails, bicycle ways and lanes, and pedestrian ways from the reach of eminent domain entirely.

The condemnation process in Wisconsin, step by step

Under § 32.05, the transportation and sewer track, the condemnor issues a relocation order describing the project, obtains an appraisal, gives you the opportunity to accompany the appraiser, and attempts to negotiate a purchase. If negotiation fails it issues a jurisdictional offer, and if that is not accepted it records an award of damages, which transfers title and starts the owner’s appeal rights.

Under § 32.06, the track for everything else, the condemnor appraises, negotiates, and then issues a jurisdictional offer. The offer must state that if it is not accepted within twenty days, the condemnor may petition for a determination of just compensation by the county condemnation commissioners, and that either party may appeal from the commissioners’ award to circuit court within sixty days.

The commission stage is an evidentiary hearing before county condemnation commissioners, who issue an award. It is faster and less formal than a trial, and its award frequently becomes the settlement benchmark.

Within sixty days after the date of filing of the commission’s award, either the condemnor or the owner may appeal to circuit court by giving notice of appeal to the opposite party and to the clerk of the circuit court. The clerk enters the appeal as an action with the condemnee as plaintiff and the condemnor as defendant. The only issues tried are questions of title and the amount of just compensation, and the action takes precedence over all other actions not then on trial.

Possession and deposits

Under the § 32.05 track, recording the award of damages transfers title to the condemnor and gives it the right to possession. That happens before any commission hearing or jury trial, which is why the section provides the owner with generous post taking appeal rights rather than pre taking blocking rights.

You may accept and use the money from the award while you pursue more. Section 32.05(11) says so expressly: the owner may appeal for greater compensation without prejudice to the right to use the compensation given by the award. That is a meaningful protection, because it means an owner does not have to choose between paying off a mortgage on the taken parcel and preserving a valuation claim.

Under the § 32.06 track, title and possession follow the commission or court process rather than a unilateral recording, so the timeline is different and the owner has more leverage before the transfer.

What just compensation includes in Wisconsin

Section 32.09 supplies the rules of valuation. The measure is fair market value, and in a partial taking, the value of the property taken plus the damage to the remainder, with the standard offsets.

Wisconsin does not compensate lost business profits or business goodwill as a separate element of just compensation. However, §§ 32.19 and 32.20 provide additional items payable that go beyond bare market value, including relocation payments and business reestablishment costs, and those are claimed through their own procedure rather than being folded into the compensation award.

Highest and best use governs. On Wisconsin projects the recurring valuation issues are agricultural land with development potential, commercial frontage where a right of way take alters access, and remainders left in shapes that no longer support the prior use.

Relocation assistance and moving costs

Sections 32.19 and 32.20 set out Wisconsin’s additional items payable and the procedure for claiming them. These cover relocation payments and related costs for displaced owners, tenants, and businesses. Federally assisted projects also carry the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act.

These are separate from just compensation and are not decided by the commissioners or the jury. They require a claim, documentation, and often persistence, and a settlement of the compensation dispute does not resolve them.

Deadlines that protect your rights in Wisconsin

Twenty days to accept a jurisdictional offer before the condemnor may petition the county condemnation commissioners.

Sixty days from the filing of the commission’s award for either party to appeal to circuit court.

Two years from the date of taking under § 32.05(11), if you choose to waive the commission procedure and appeal directly to the circuit court of the county where the property is located. The sole issues are questions of title under §§ 32.11 and 32.12 and the amount of just compensation, tried to a jury unless both sides waive it. Two years is generous by national standards, but it is a hard outer limit.

Fifteen days is not a Wisconsin deadline, but the fifteen percent and seven hundred dollar thresholds in § 32.28(3)(d) are figures to track, and they are measured against the negotiated price rather than a jurisdictional offer.

How to fight a taking in Wisconsin

Wisconsin’s fee provision is the reason a valuation fight here often pays for itself. Section 32.28 defines litigation expenses as the sum of the costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, necessary to prepare for or participate in actual or anticipated proceedings before the condemnation commissioners, a board of assessment, or any court under the chapter.

If the amount of just compensation found by the court or by the commissioners of condemnation exceeds the jurisdictional offer, or exceeds the highest written offer made before the jurisdictional offer, the condemnee is deemed the successful party under § 814.02(2). That status carries the litigation expense recovery with it. Note the comparison: it is not a percentage margin in the ordinary case, it is simply beating the offer.

Section 32.28(3)(d) covers a specific path that owners take under § 32.06(2a). Litigation expenses are awarded where the owner conveys the property and receives a certificate of compensation under § 32.06(2a) with no jurisdictional offer issued under § 32.06(3), timely appeals to the circuit court which refers the matter to the chairperson of the county condemnation commissioners, is awarded at least seven hundred dollars and at least fifteen percent more than the negotiated price under § 32.06(2a), and neither party appeals the commission’s award.

On the right to take, § 32.015 is close to absolute for the uses it covers. A municipality may not condemn to establish or extend a recreational trail, a bicycle way, a bicycle lane, or a pedestrian way, and the Wisconsin Court of Appeals has enforced that language against a village trying to condemn for a sidewalk. Section 32.03(6) supplies the redevelopment limit, restricting condemnation of property that would be conveyed or leased to a private entity.

Before you sign anything

Do not accept a jurisdictional offer inside the twenty day window without an appraisal, because under § 32.28 exceeding that offer is what makes you the successful party and shifts your litigation expenses to the condemnor. Accepting the offer forecloses that recovery.

Take the money from an award of damages if you need it. Section 32.05(11) preserves your right to appeal for greater compensation without prejudice to your right to use it. And if the project is a trail, bike lane, bike way, or pedestrian way, check § 32.015 before you negotiate at all, because the condemnor may not hold the power it is asserting.

Frequently asked questions

How long do I have to accept a Wisconsin jurisdictional offer?

Twenty days. The jurisdictional offer must state that if it is not accepted within twenty days, the condemnor may petition for a determination of just compensation by the county condemnation commissioners, and that either party may appeal from the commissioners’ award to circuit court within sixty days. Because exceeding the jurisdictional offer is what triggers litigation expense recovery under § 32.28, accepting it should not be done without an appraisal.

When does Wisconsin make the condemnor pay my attorney fees?

Under Wis. Stat. § 32.28, if the amount of just compensation found by the court or by the commissioners of condemnation exceeds the jurisdictional offer or the highest written offer made before the jurisdictional offer, the condemnee is deemed the successful party under § 814.02(2) and recovers litigation expenses. Litigation expenses include costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees, necessary to prepare for or participate in proceedings before the commissioners, a board of assessment, or any court under Chapter 32.

Can I skip the condemnation commission and go straight to a jury in Wisconsin?

Yes, on the § 32.05 track. Under Wis. Stat. § 32.05(11) the owner of any interest in property named in the basic award may elect to waive the appeal procedure and instead, within two years after the date of taking, appeal to the circuit court of the county where the property is located. The sole issues are questions of title under §§ 32.11 and 32.12 and the amount of just compensation, and the case is tried by jury unless both plaintiff and defendant waive it.

Does taking the money hurt my Wisconsin appeal?

No. Wisconsin Statute § 32.05(11) allows the owner two years from the date of taking to appeal for greater compensation without prejudice to the right to use the compensation given by the award. You do not have to leave the award money untouched to preserve a claim that the compensation was inadequate.

Can Wisconsin condemn my land for a bike path or trail?

No. Wis. Stat. § 32.015, added through the 2017 state budget, provides that condemnation may not be used to establish or extend a recreational trail, a bicycle way, a bicycle lane, or a pedestrian way as defined in § 346.02(8)(a). Wisconsin appellate courts have applied the prohibition, including to reject a village’s attempt to condemn property for a sidewalk.