What is eminent domain?

Eminent domain is the power of government to seize private property without the owner’s consent — although just compensation must be made and is protected by the U.S. Constitution — for public use.

Historically, use of the seized property was for public facilities, highways and railroads. That was before the U.S. Supreme Court in 2004 set a precedent for government to transfer property to private interests when there is a “public interest” such as economic development. The high court — in a 5-4 decision — found that if an economic development project creates jobs, increases taxes and other revenue, and revitalizes a depressed or blighted area it qualifies as “public use.”

Unlike Connecticut, where the city of New London was sued in the case that resulted in the controversial decision, Wisconsin law does not explicitly allow for the transfer of property to a private entity. Following the decision, the Wisconsin Legislature adopted eminent domain legislation to protect the rights of private property owners. Act 233, which went into effect in April 2006, defined blighted property based on a variety of conditions that would make it “detrimental to the public health, safety, or welfare.” Factors contributing to a finding of blight could include abandonment; dilapidation; deterioration; age or obsolescence; inadequate ventilation, light, air, or sanitation; overcrowding; unsafe conditions; and other factors. For a property with a single dwelling, a finding of blight requires an additional condition, either that it is not occupied by the owner or a relative, or the crime rate in, on, or adjacent to the property is at least three times the crime rate in the remainder of the municipality in which the property is located.

Still, there was room for broad interpretation of the blight definition in Wisconsin.

In 2011, Sen. Mary Lazich, R-New Berlin, hoped to tighten the definition of “blighted areas” to provide additional protection for property owners from eminent domain when the intent is to transfer interests to a private entity, but the bill failed to pass in the senate in March.

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