Wisconsin Ct App: Property Owner’s “Check” Is Subject To Town’s Condemnation “Checkmate”

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 bea problem, it is plainly a problem of DSG’s own making.  It is undisputed that the 1.5-acre lot atissue did not exist when the Town had the proposed condemnation projectappraised.  Shortly thereafter, however,DSG swapped property with a neighbor who owned adjoining land, therebyeliminating the access easement the Town had provided DSG, creating thepossibility that if the condemnation project was successful, it would create anillegal 1.5-acre parcel.  The clearevidence is that DSG was fully aware of the property the Town wished to condemnfor the Hauge Church project, but swapped the parcelwith its neighbor anyway just before negotiations were to commence.  A reasonable inference from this transactionat this time in the condemnation process is that DSG was aware that throughthis land swap, the condemnation would result in creating a lot that did not complywith the minimum size lot ordinance. The equities of the case call for reliefto the Town by not holding the Town to the alleged problem of creating a lot inan 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 tochallenge the Town’s creation of a lot of less than 35 acres in violation ofDane County ordinances. It is for Dane Countyto raise the challenge DSG makes here, not DSG. DSG does not cite to any part of the Dane Countyzoning ordinances that permits a private citizen to enforce the minimum lotsize 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.