LRB-3683/2
PG:wlj:kjf
1999 - 2000 LEGISLATURE
March 8, 2000 - Introduced by Representatives Albers, Petrowski, Gunderson,
Stone, Goetsch, Reynolds, Ainsworth, Skindrud and Seratti, cosponsored
by Senator Huelsman. Referred to Committee on Conservation and Land Use.
AB855,1,3
1An Act to renumber and amend 32.10;
to amend 32.10 (title); and
to create
232.10 (1), 32.10 (2), 32.10 (6) and 32.10 (7) of the statutes;
relating to: inverse
3condemnation proceedings.
Analysis by the Legislative Reference Bureau
Under current law, if a person's property is occupied by an entity that possesses
the power of eminent domain (a condemnor), but the condemnor has not exercised
its power (and has not, therefore, compensated the property owner), the owner may
commence an inverse condemnation action against the condemnor. If the property
owner is successful, the court may order the condemnor to acquire the owner's
interest in the affected property, resulting in compensation being paid by the
condemnor to the owner.
Currently, if a property owner wishes to allege that his or her property has been
taken by a government ordinance, statute, administrative rule or regulation (a
regulatory taking), the owner must bring an action under article I, section 13 of the
Wisconsin Constitution, which prohibits the taking of property without just
compensation.
This bill includes in the definition of "taking", for the purpose of inverse
condemnation actions, not only occupancy but also the following:
1. The physical confiscation of property by a person possessing the power of
condemnation; and
2. Any action by a person possessing the power of condemnation that directly
reduces the fair market value of a person's property by more than 50%.
This change allows all three types of actions to be brought under the inverse
condemnation law.
The bill also provides that if the court determines that the condemnor has
reduced the fair market value of the owner's property as described above, the court
must either compel the condemnor to acquire the owner's interest in the property
(and pay compensation) or declare the condemnor's action void with respect to the
property and order the condemnor to pay the owner any damages resulting from the
taking.
Finally, the bill reduces from six years to three years the statute of limitations
applicable to inverse condemnation actions.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB855, s. 1
1Section
1. 32.10 (title) of the statutes is amended to read:
AB855,2,3
232.10 (title)
Condemnation proceedings Proceedings instituted by
3property owner.
AB855, s. 2
4Section
2. 32.10 of the statutes is renumbered 32.10 (3) and amended to read:
AB855,2,105
32.10
(3) If any property
has been occupied is taken by a person possessing the
6power of condemnation and if the person has not exercised the power, the owner,
to 7within 3 years of the action alleged to constitute the taking, may institute
8condemnation proceedings
, shall present under this section by filing a verified
9petition
to with the circuit
judge court of the county
wherein
in which the
land 10property is situated
asking that such proceedings be commenced.
AB855,3,6
11(4) The petition shall describe the
land property, state the person against which
12the
condemnation proceedings are instituted and
describe the
use to which it has
13been put or is designed to have been put action by the person against which the
14proceedings are instituted
that is alleged to constitute a taking. A copy of the petition
15shall be served upon the person
who has occupied petitioner's land, or interest in
1land. The petition shall be filed in the office of the clerk of the circuit court and
2thereupon the matter shall be deemed an action at law and at issue, with against
3which the proceedings are instituted. The petitioner
as shall be the plaintiff and the
4occupying person
as alleged to have taken the property shall be the defendant.
The
5court shall make a finding of whether the defendant is occupying property of the
6plaintiff without having the right to do so.
AB855,3,13
7(5) If the court determines that the defendant
is occupying such has taken the 8property of the plaintiff
under sub. (1) (a) or (b) without
having the right to do so 9exercising the power of condemnation, it shall treat the matter in accordance with
10the provisions of this subchapter assuming the plaintiff has received from the
11defendant a jurisdictional offer and has failed to accept the
same offer and assuming
12the plaintiff is not questioning the right of the defendant to condemn the property
13so occupied.
AB855, s. 3
14Section
3. 32.10 (1) of the statutes is created to read:
AB855,3,1515
32.10
(1) In this section "taking" means any of the following:
AB855,3,1716
(a) The physical confiscation of property by a person possessing the power of
17eminent domain.
AB855,3,1918
(b) The occupation of property by a person possessing the power of
19condemnation.
AB855,3,2120
(c) Any action by a person possessing the power of condemnation that directly
21reduces the fair market value of a person's property by more than 50%.
AB855, s. 4
22Section
4. 32.10 (2) of the statutes is created to read:
AB855,3,2523
32.10
(2) This section does not apply to the failure to act on the part of a person
24possessing the power of condemnation or to any action taken by such a person that
25is a reasonable response to an obligation required by state or federal law.
AB855, s. 5
1Section
5. 32.10 (6) of the statutes is created to read:
AB855,4,42
32.10
(6) If the court determines that the defendant has taken the property of
3the plaintiff under sub. (1) (c) without exercising the power of condemnation, the
4court shall do one of the following:
AB855,4,55
(a) Treat the matter as described in sub. (5).
AB855,4,76
(b) Declare the defendant's action void with respect to the property and order
7the defendant to pay the plaintiff any damages resulting from the taking.
AB855, s. 6
8Section
6. 32.10 (7) of the statutes is created to read:
AB855,4,109
32.10
(7) Nothing in this section prohibits, or prescribes the procedure for, an
10action under article I, section 13, of the constitution.
AB855,4,1312
(1) This act first applies to takings that occur on the effective date of this
13subsection.
