Real Estate & Property Law

Wisconsin Ct App: Property Owner's "Check" Is Subject To Town's Condemnation "Checkmate"

By Robert Thomas (inversecondemnation.com)

There are a host of issues in DSG Evergreen v Town of Perry, No. 2009AP727 (Wis. Ct. App. July 22, 2010) (the appellant raised seven grounds for appeal in this condemnation case), but this is the one that caught our eye. The property owner claimed that the town could not condemn its 1.5 acre parcel because it would create a lot that violated the county's minimum lot size for agriculture-exclusive parcels. Under the county land use ordinance, unless an ag parcel fronts a public road, it must be at least 35 acres. See slip op. at 12. The court held that yes, the parcel did fall below the 35-acre minimum size because it did not front a public road, but that it was the property owner who created the problem with it "swapped property with its neighbor after the appraisal." Id. at 13. Thus, the court concluded, the issue the property owner raised was "of its own making." 

We observe that, to the extent that the size of this lot may be a problem, it is plainly a problem of DSG?s own making.  It is undisputed that the 1.5-acre lot at issue did not exist when the Town had the proposed condemnation project appraised.  Shortly thereafter, however, DSG swapped property with a neighbor who owned adjoining land, thereby eliminating the access easement the Town had provided DSG, creating the possibility that if the condemnation project was successful, it would create an illegal 1.5-acre parcel.  The clear evidence is that DSG was fully aware of the property the Town wished to condemn for the Hauge Church project, but swapped the parcel with its neighbor anyway just before negotiations were to commence.  A reasonable inference from this transaction at this time in the condemnation process is that DSG was aware that through this land swap, the condemnation would result in creating a lot that did not comply with the minimum size lot ordinance. The equities of the case call for relief to the Town by not holding the Town to the alleged problem of creating a lot in an agricultural-exclusive zoned area that is less than 35 acres.

Id. The property owner tried to pull a fast one in the court's view, and the eminent domain gods won't be cheated from their due quite so easily.

The court added: "In any event, we agree with the Town that DSG lacks standing to challenge the Town?s creation of a lot of less than 35 acres in violation of Dane County ordinances. It is for Dane County to raise the challenge DSG makes here, not DSG.  DSG does not cite to any part of the Dane County zoning ordinances that permits a private citizen to enforce the minimum lot size ordinance, and we are not aware of such an ordinance." Note that this is likely a different result than would have been reached in Hawaii, since the Hawaii Supreme Court recently held that state land use statutes are "environmental" statutes that may be enforced by private party lawsuits.

The court also rejected the property owner's claim that the town did not prepare an adequate Agricultural Impact Statement. See slip op. at 8-12.

Full post as published by inversecondemnation on July 27, 2010 (boomark / email).