Eminent Domain

Listen to attorney Daniel Bach discuss business law and eminent domain.

Devil's Advocates: Welcome back to the Devil's Advocates radio show. We've been joined by a fine guest in studio a sponsor and soon to be friend I hope, his name Dan Bach. I feel much more confident now say it Dan. Thanks for clarifying. I was right the first time. Dan, welcome to the show.

Daniel Bach: Thanks guys it's a pleasure to be here.

Devil's Advocates: Thank you sir. How long have you been with Lawton & Cates? You are a Business Attorney with Lawton & Cates, how long have you been in practice with them?

Daniel Bach: Right. I just rejoined Lawton & Cates in August. I had been there a couple years back and went away for a little while and I'm really happy to be back with that group.

Devil's Advocates: How long in practice in total?

Daniel Bach: I've practicing law since 1984. So I was in the public sector for quite a while, I was a federal prosecutor for a number of years, I was a deputy attorney general for four years. Outside of that I have been in private practice since 2000.

Devil's Advocates: That's good sir. Business, let's talk about business for a minute. That seems like a very broad umbrella. Well Dom and I are in business and I've had the need for business attorneys before, let me ask you what sort of matters/where is the concentration of your practice?

Daniel Bach: Well I do a wide variety of what we call Commercial Litigation. Representing business owners or other people with business disputes, contract disputes and so forth. But I am also heavily involved in a lot of real estate related matters. Zoning issues, representing property owners on a number of different types of matters, but in particular Eminent Domain cases is my subspecialty that I've been involved with for a number of years.

Devil's Advocates: Well I don't want to go too far afield but let me ask you, there is a story in the state of Wisconsin, Enbridge a Canadian company is building a pipeline, pipeline 66, a twin pipe there's already a pipeline 61. My understanding to make this new pipeline work they are using eminent domain and this eminent domain is not for the government but for private industry. When did we see the change in eminent domain Dan?

Daniel Bach: Well utility companies have long had the authority to condemn property as well as governmental authorities. I can't give you a specific date but it goes back a number of years. Utility companies for gas lines or electric lines do have the statutory power to condemn peoples' property for their projects.

Devil's Advocates: And how does the landowner, homeowner, how do they get reimbursed?  Is there a preset scale? How does that work?

Daniel Bach: Well the process usually begins with, always begins with some type of public hearing. With utility projects it's going to involve the Public Service Commission and proceedings before it. There have been projects in this state where property owners or groups of property owners have objected to the route of a proposed utility line, gas line what have you. So they can participate at that end. But it terms of once a project is set in stone more or less and approvals have all been made then the main issue is just compensation. Getting paid a fair amount for whatever damage to that person's property has been occasioned by the project.

Devil's Advocates: Dan, I can see why sometimes that might require capable representation, an attorney. I would suspect many of the corporations are not looking to pay fair price or above fair price to acquire a property in this circumstance. Are they required to by statute? How much of this is discretionary and how much of this can you impact as an attorney?

Daniel Bach: Well we can have a substantial impact. Your first question is really can someone expect to be fairly compensated whether is a governmental authority taking a property or a private one. Unfortunately often times what we have seen is an offer is made and the condemning authority will always have an appraisal done and present it to the property owner. That appraisal doesn't necessarily reflect what we think and what the experts we deal with view as appropriate compensation, just compensation to the property owner. So if anyone is confronted by a problem like this you get notice that an easement is going to be taken on your property or if your property is actually taken away for a road project for example. It would be my advice to anyone to seek appropriate consultation with an attorney who has resources, we work with appraisers and other experts to help guide people in terms of what they ought to be paid for what damage has been done to their property.

 Devil's Advocates: Dan we have an easement on the back of my lot line and there is a utility pole. Sometimes the workers come and it makes my wife mad as hell. We have dogs and we have a fenced yard and my wife is used to opening the door and letting the dogs out. While these utility workers haven't been so good about shutting our gate after the fact. When you talk about damages my wife would ask me to ask you Dan if she would have known you were coming today, what sort of regress does she have if they leave the gate open and the dogs run and get hit by a car?

Daniel Bach: Have her come down and have a cup coffee and we'll sit down and talk about that. But usually there is some attendant right to an easement to have the workers of the utility of the company to have access to the property in some fashion so that they can maintain it. That's always spelled out in the rights, in the documents, in the easement that's filed when the property is taken. There is an expectation there they will be able to maintain their lines. Now whether or not they always abide by those restrictions or they go outside them that can be another matter.

Devil's Advocates: Dan let me ask you what if my dog did bite one of these workers. Within the context of the easement they have the right to be there but I as the homeowner have a pet and what if in reaction to the stranger in the yard a dog bites one of these guys. Is that a complicating factor?

Daniel Bach: I would have you talk to one of the Personal Injury attorneys that works at Lawton & Cates to get you a really definitive response.

Devil's Advocates: Folks you are listening to the Devil's Advocates radio show. We have Dan Bach an attorney with Lawton & Cates in studio with us. Dan, Kelo vs. City of New London this came out ten some years ago, I was actually in Commercial Real-estate at the time. I remember talking about this and I may have been going through some continued education and I was a little stunned that now the government for the profit of a developer can now come through and condemn your property and kick you out. How much of an impact has that had on the rest of the country, and frankly in your work sir?

Daniel Bach: I think that Kelo decision resonated throughout the country and all the way down to the local level and we've seen some instances in this community even. Where there have been condemnations essentially for what are non-public or traditionally non-public uses of property. There have been legislative efforts not only in Wisconsin but elsewhere to address the Kelo decision and limit its scope but that was a stunner for a lot of us. I was in the AG's office here in Wisconsin when that decision was passed and I know staff attorneys took a very close look at it and what the impact would be statewide. We had a lot of meetings with groups around the state after that to discuss their concerns.

Devil's Advocates: Well we started talking about this Enbridge issue last week. So I pulled up and I remembered this case and I was looking through it, they never, the city, the developer, never followed through on the development. They show this cute little pink house, this old lady got her house torn down and now it's just an empty lot. The development didn't go through, is there any redress for the homeowners if it doesn't go through?

Daniel Bach: Once the property is taken its game over. We are talking about just compensation and once that's done then you know that's usually the finally determination to be made.

Devil's Advocates: How long for a condemnation? Now certainly that's really the anchor that hangs over everybody's head is that you gotta sign the deal or they can what come through and condemn the house and take it from you if you don't accept the payout? Am I understanding that correctly?

Daniel Bach: You can still accept the payout. There will be an offer that will be made and this is confusing and rightfully so to a lot of property owners. You can accept what the offer is and still challenge the amount that they pay you. There is a time limit for doing that and I think it's very important to talk to somebody who is knowledgeable in the area when you get an offer if not beforehand.

Devil's Advocates: Dan you said you also find yourself doing real-estate and obviously eminent domain touches on real-estate. I have as a former life practice, I used to do mortgage lending, I used to do real-estate. But let me ask you it seemed like a lot of the issues we would run into were shoreline issues they were regarding can you build on the footprint of a pre-existing tear down house. You know they were often the problems of the very affluent those that had the means to buy on the water's edge. How often do you find yourself dealing with these DNR problems these development problems as they regard lakeside real-estate? I've seen those issues from both ends of the spectrum, up until recently I was the president of a Lake Buelah protective and improvement association. So we were concerned about development occurring on the lake, what type, how big, and how far from the water's edge and so forth. So we were also concerned with the high capacity well that was being situated on the shores of the lake, so I've seen it from that perspective. I've also helped some property owners who were trying to rehabilitate or refurbish properties that have been there for a long time they've been grandfathered in as it were. They run into some challenges associated with either maintaining or rehabilitating their properties on the shoreline. I've seen the arguments from both sides and I think I understand the arguments from both sides and there is no one size fits all a lot of these are very fact dependent situations. They are often challenging and need to be addressed in an appropriate fashion.

Devil's Advocates: Dan it's a small world I actually celebrated my 30th birthday in Lake Buelah and I know some people that developed a property on Lake Buelah. They had a cute little lakeside ranch and then they stacked it, they did a second story on the house and apparently per local ordinance, per site lines, they could not do that. In fact they were ordered to remove a floor from their house after they invested something approaching half a million dollars. Certainly they were in need of legal advice at that time I don't know exactly how that resolved. Do you see homeowner's getting ahead of themselves perhaps taking their own direction and perhaps giving themselves bad counsel?

Daniel Bach: First of all I celebrated my 30th birthday on Lake Buelah too but I think mine was a few years before yours. You make a good point some people do things and seek approval later but my advice is to get the approval first. If what you're doing is reasonable and you can work with your neighbors on it and the local officials that goes a long way toward making everybody happy.

Devil's Advocates: Folks you are listening to the Devil's Advocates radio show. Want to thank Dan Bach a fine attorney with Lawton & Cates if find yourself in need, if you are being eminent domained or if you have zoning property rights issues etc. Please call Dan Bach at Lawton & Cates one of the fine sponsors of the Devil's Advocates.

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