Condemnee allowed to dismiss condemnation action over objections of redevelopment authority

by Melanie Thwing

Wisconsin Mall Properties, LLC v. City of Green Bay
(Wisconsin Court of Appeals, January 4, 2011)

The Redevelopment Authority of the City of Green Bay, Wisconsin wanted to condemn a department store that was owned by Mall Properties, but leased to Younkers. Under Wisconsin Statute § 32.05 (3) the Redevelopment Authority offered compensation to both Younkers and Mall Properties.

Under this statute, if an offer is not accepted, the Redevelopment Authority makes an automatic award to the condemnee and Mall Properties and Younkers’ were awarded the amount that was originally offered. § 32.05 then allows the condemnee two courses of action to appeal the award: (1) appeal to the condemnation commission or (2) appeal directly to the circuit court. If an appeal is taken to the condemnation commission both parties have a right to appeal, however if it is taken to the circuit court then the condemning authority does not have this right.

After choosing to appeal in circuit court, and after intensive litigation with Younkers’, Mall properties filed a voluntary dismissal of the condemnation appeal under § 805.04(1) which states, “[A]n action may be dismissed by the plaintiff without order of court by serving and filing a notice of dismissal at any time before service by an adverse party of responsive pleading or motion…”

The Redevelopment Authority wished to increase the awarded amount (the court’s opinion does not state a reason for the Redevelopment Authority’s position)  and opposed the voluntary dismissal. Mall Properties request was ultimately rejected by the circuit court, who stated that public policy would not allow for the voluntary dismissal. They stated, “Is it…proper to prohibit the condemning authority from having their day in court?…when taxpayer dollars are at issue, it is not unreasonable… the taxpayers also have a right to have that valuation determined.”

Mall Properties appealed this decision to the Wisconsin Court of Appeals. The Court of Appeals looked to Dickie v. City of Tomah which ruled on § 32.06 – a sister statute to § 32.05 – for guidance.  In Dickie the court ultimately gave the right of voluntary dismissal to plaintiffs, noting that the main difference between these two statutes is that unlike in § 32.05 where the Redevelopment Authority automatically makes an award, in § 32.06 an offer that is not accepted is then directed to the condemnation commission to issue an award. Because the condemnation commission is controlling the award in § 32.06 both parties have the right to file an appeal, a right not given under § 32.05.

The Redevelopment Authority argues to the court that Dickie cannot be used under both statues because there is no option for an appeal to ensure, “the award of compensation is proper.” Taking this argument, the court points that the option for appeal is given under § 32.06 because the condemnation commission controls the awards, and the appeal process enables a fair award. However, it is the Redevelopment Authority who determined the value of the award, and if they were allowed to appeal, it would be the same as asking for protection against their own decisions. The court also points that the condemnor still has the option to join the first appeal from the condemnee.  Thus the Court of Appeals reversed the trial court’s order, and allowed Mall Properties to voluntarily dismiss the proceedings. 

Finally, the court looks to the issue of public policy that was stated by the circuit court. To court does agree that both property owners and taxypayers have a right to have the value of compensation determined. This opportunity was given to the Redevelopment Authority when they determined and funded the award. The court finds that no public policy requires an opportunity to challenge an agency’s own valuation. The case is reversed.





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