Real Estate & Property Law

BIO And Reply In SCOTUS Eminent Domain Case: Is Wisconsin's Application Of The Undivided Fee Rule Unconstitutional?

By Robert Thomas (inversecondemnation.com)

Here are the final briefs in City of Milwaukee Post No. 2874 Veterans of Foreign Wars of the United States v. Redevelopment Agency of the City of Milwaukee, No. 09-1204 (cert. petition filed Apr. 2, 2010). That's the case in which the U.S. Supreme Court is being asked whether the "undivided fee rule," as applied by the Wisconsin Supreme Court, violates the Fifth Amendment's Just Compensation Clause because it requires that a leasehold interest -- which would be worth over $1 million if condemned separately -- be valued at zero.

More on the case here. [Disclosure: we filed an amicus brief for the National Association of Home Builders and the Wisconsin Builders Association in the case, supporting the VFW.]

• Brief for Respondent in Opposition (Redevelopment Authority of the City of Milwaukee)

• Reply in Support of Petition for Writ of Certiorari (Petitioner VFW)

Here are the petition and the amicus briefs, including NAHB's:

• Cert petition

• Institute for Justice's amicus brief

• NAHB and WBA's amicus brief

The VFW's cert petition presents the following questions:

When the Milwaukee Redevelopment Authority took by eminent domain the 11-story downtown building that housed the offices of Post 2874 of the Veterans of Foreign Wars (VFW) as a long-term lessee, the Wisconsin Supreme Court held 4 to 3 that?as a matter of law?the VFW was not entitled to present any evidence of value, nor entitled to recover any compensation whatever for its concededly valuable long-term leasehold.

The questions presented are:

1. Does it violate the 5th and 14th Amendments for Wisconsin?like some jurisdictions, but in conflict with others and with this Court?s repeated insistence that the appropriate question in an eminent domain proceeding is "what has the owner lost, not what has the taker gained"?to apply its "undivided fee rule" in such circumstances?

2. Did the court below violate VFW?s constitutional right to due process of law by precluding it, as the owner of a valuable interest in property being taken through eminent domain, from introducing any evidence of the value of its leasehold property?

The case is on the Court's calendar for the June 17, 2010 conference. Stay tuned for the results.

Full post as published by inversecondemnation on June 04, 2010 (boomark / email).