84.09 Acquisition of lands and interests therein.

(1) The department may acquire by gift, devise, purchase or condemnation any lands for establishing, laying out, widening, enlarging, extending, constructing, reconstructing, improving and maintaining highways and other transportation related facilities, or interests in lands in and about and along and leading to any or all of the same; and after establishment, layout and completion of such improvements, the department may, subject to any prior action under s. 13.48 (14) (am) or 16.848 (1), convey such lands thus acquired and not necessary for such improvements, with reservations concerning the future use and occupation of such lands so as to protect such public works and improvements and their environs and to preserve the view, appearance, light, air and usefulness of such public works. Whenever the department deems it necessary to acquire any such lands or interests therein for any transportation related purpose, it shall so order and in such order or on a map or plat show the old and new locations and the lands and interests required, and shall file a copy of the order and map with the county clerk and county highway committee of each county in which such lands or interests are required or, in lieu of filing a copy of the order and map, may file or record a plat in accordance with s. 84.095. For the purposes of this section the department may acquire private or public lands or interests in such lands. When so provided in the department's order, such land shall be acquired in fee simple. Unless it elects to proceed under sub. (3), the department shall endeavor to obtain easements or title in fee simple by conveyance of the lands or interests required at a price, including any damages, deemed reasonable by the department. The instrument of conveyance shall name the state as grantee and shall be recorded in the office of the register of deeds. The purchase or acquisition of lands or interests therein under this section is excepted and exempt from s. 20.914 (1). The department may purchase or accept donations of remnants of tracts or parcels of land existing at the time or after it has acquired portions of such tracts or parcels by purchase or condemnation for transportation purposes where in the judgment of the department such action would assist in making whole the landowner, a part of whose lands have been taken for transportation purposes and would serve to minimize the overall costs of such taking by the public.

(2) If any of the needed lands or interests therein cannot be purchased expeditiously for a price deemed reasonable by the department, the department may acquire the same by condemnation under ch. 32.

(3)

(a) The department may order that all or certain parts of the required land or interests therein be acquired by the county highway committee. When so ordered, the committee and the department shall appraise and agree on the maximum price, including damages, considered reasonable for the lands or interests to be so acquired. The committee shall endeavor to obtain easements or title in fee simple by conveyance of the lands or interests required, as directed in the department's order. The instrument of conveyance shall name the county as grantee, shall be subject to approval by the department, and shall be recorded in the office of the register of deeds and filed with the department. If the needed lands or interests therein cannot be purchased expeditiously within the appraised price, the county highway committee may acquire them by condemnation under ch. 32.

(b) Any property of whatever nature acquired in the name of the county pursuant to this section or any predecessor shall be conveyed to the state without charge by the county highway committee and county clerk in the name of the county when so ordered by the department.

(c) The county highway committee when so ordered by the department is authorized and empowered to sell and shall sell at public or private sale, subject to such conditions and terms authorized by the department, any and all buildings, structures, or parts thereof, and any other fixtures or personalty acquired in the name of the county under this section or any predecessor. Any instrument in the name of the county, transferring title to the property mentioned in the foregoing sentence, shall be executed by the county highway committee and the county clerk. The proceeds from such sale shall be deposited with the state in the appropriate transportation fund and the expense incurred in connection with such sale shall be paid from such fund.

(d) Section 59.52 (6) (c) shall not apply to any conveyance or transfer made under this section.

(3m) The department may order that all or certain parts of the required land or interest therein be acquired for the department by a board, commission or department of the city, village or town within whose limits the land is located. The city board or city, village or town commission or department shall be created or selected by the common council, village board or town board subject to the approval of the department. When so ordered, the board, commission or department created or selected and the department shall appraise and agree on the maximum price, including damages, considered reasonable for the lands or interests to be so acquired. The city, village or town board, commission or department shall endeavor to obtain easements or title in fee simple by conveyance of the lands or interests required, as directed in the department's order. The instrument of conveyance shall name the state as grantee and shall be recorded in the office of the register of deeds. If the needed lands or interests therein cannot be purchased expeditiously within the appraised price, the city, village or town board, commission or department may, subject to approval by the department, acquire them by condemnation in the name of the state under ch. 32. The city, village or town attorney may act as counsel in any proceedings brought under authority of this subsection. Special counsel may be employed with the consent of the governor and the secretary. The city, village or town, upon agreement with the department, may pay for the land or interests acquired from city, village or town funds made available for such purpose or not otherwise appropriated, as an advance subject to reimbursement by the department or as part of the city's, village's or town's contribution toward the cost of the improvement.

(4) The cost of the lands and interests acquired and damages allowed pursuant to this section, expenses incidental thereto, expenses of the county highway committee incurred in performing duties under this section and the county highway committee's customary per diem, or a per diem not to exceed the lawful rate permitted for members of county boards if the highway committee members receive an annual salary, are paid out of the available improvement or maintenance funds. Members of a highway committee who receive an annual salary shall be entitled to the per diem paid, as compensation for their services, in addition to their annual salary fixed pursuant to s. 59.10 (3) (i).

(5)

(a) Subject to pars. (b) and (c) and any prior action under s. 13.48 (14) (am) or 16.848 (1), and subject to the approval of the governor, the department may sell at public or private sale property of whatever nature owned by the state and under the jurisdiction of the department when the department determines that the property is no longer necessary for the state's use for transportation purposes and, if real property, the real property is not the subject of a petition under s. 16.310 (2). The department shall present to the governor a full and complete report of the property to be sold, the reason for the sale, and the minimum price for which the same should be sold, together with an application for the governor's approval of the sale. The governor shall thereupon make such investigation as he or she may deem necessary and approve or disapprove the application. Upon such approval and receipt of the full purchase price, the department shall by appropriate deed or other instrument transfer the property to the purchaser. The approval of the governor is not required for public or private sale of property having an appraised value at the time of sale of not more than $15,000, for the transfer of surplus state real property to the department of administration under s. 16.310, or for the transfer of surplus state personal property to the department of tourism under sub. (5s). The funds derived from sales under this subsection shall be deposited in the transportation fund, and the expense incurred by the department in connection with the sale shall be paid from such fund.

(b) Subject to the approval of the governor in the manner, scope, and form specified in par. (a), with respect to the sale of property acquired by the department for a project that is completed after May 25, 2006, the department shall, and with respect to the sale of property acquired by the department for a project that is completed before May 25, 2006, the department may offer for sale or transfer ownership of the property that the department determines is no longer necessary for the state's use for transportation purposes, if the property is not the subject of a petition under s. 16.310 (2). This disposition process shall take place within 24 months of the completion of the transportation project for which the property was acquired. Except as provided in par. (c) 3., the department shall offer limited and general marketable properties at appraised value, as determined by a state-certified or licensed appraiser, for not less than 12 months. If the department does not sell the property at or above its appraised value, the department shall offer the property for sale by means of sealed bids or public auction. For the purposes of this paragraph, a project is completed when final payment is made under the contract for the project.

(c)

1. Subject to any prior action under s. 13.48 (14) (am) or 16.848 (1), prior to conducting a public sale on a generally marketable surplus land parcel under par. (b), the department shall contact the county, municipality, and the local school district where the land parcel is located and the department of natural resources to solicit interest in acquiring the parcel for public use. Upon notification from the department, the county, municipality, local school district, and department of natural resources must respond to the department, stating their interest in the land for public use, within 60 days. Failure to respond within 60 days constitutes noninterest in the land parcel.

2. Except as provided in subd. 2m. and subject to any prior action under s. 13.48 (14) (am) or 16.848 (1), if a county, a municipality, a local school district, or the department of natural resources expresses interest in acquiring the land for public use, the department shall offer the county, municipality, local school district, or department of natural resources the property at its appraised value if all of the following are true:

a. The county, municipality, local school district, or department of natural resources provides a plan to the department identifying the proposed public use for the land parcel and the acreage involved in the public use.

b. The public use would benefit a cross-section of the population.

c. The land parcel will not be purchased for the generation of profit either through the sale price or its long-term intended public use.

2m. If a county, municipality, or a local school district expresses interest in acquiring the land for public use related to transportation or infrastructure, the department may, subject to any prior action under s. 13.48 (14) (am) or 16.848 (1), offer the county, municipality, or the local school district the property, for less than the appraised value of the property, if all of the following are true:

a. The county, municipality, or local school district provides a plan to the department identifying the proposed use of the property for transportation or infrastructure purposes.

b. The county, municipality, or local school district agrees to a permanent restriction on the use of the land for the purpose identified.

3. If the conditions of subd. 2. are met, the department shall transfer ownership of the land parcel to the county, municipality, local school district, or department of natural resources upon receipt of the appraised value of the land parcel. If the conditions of subd. 2m. are met, the department shall transfer ownership of the land parcel to the county, municipality, or local school district upon receipt of the agreed purchase price of the land parcel. Ownership of the land parcel shall be transferred contingent upon the public use identified under subd. 2., and shall remain in the ownership of the public entity preserving the public use.

(5m) Subject to the approval of the governor in the manner, scope, and form provided by sub. (5) (a), and subject to any prior action under s. 13.48 (14) (am) or 16.848 (1), the department may convey lands or interests therein acquired pursuant to this section and improvements installed thereon to municipalities within whose limits such lands or interests therein are located. The conveyance of said lands or interests therein and improvements shall restrict the use of the premises by the municipality to the uses for which they were acquired, except that said lands or interests therein declared by the department to be excess may be so conveyed without restrictions as to use. This subsection shall apply only to the sale of property acquired by the department for a project that is completed before May 25, 2006. The department may sell property that is acquired by the department for a project that is completed after May 25, 2006, to a municipality under sub. (5) (c), as applicable.

(5r) In lieu of the sale or conveyance of property under sub. (5) or (5m), the department may, subject to the approval of the governor, donate real property that is adjacent to the veterans memorial site located at The Highground in Clark County and owned by the state and under the jurisdiction of the department to the Wisconsin Vietnam Veterans Memorial Project, Inc., for the purpose of the veterans memorial site located at The Highground in Clark County for the purpose of a memorial hall specified in s. 70.11 (9). The department may donate property under this subsection only when the department determines that the property is no longer necessary for the state's use for transportation purposes and is not the subject of a petition under s. 16.310 (2) and is transferred with a restriction that the donee may not subsequently transfer the real property to any person except to this state, which shall not be charged for any improvements thereon. Such restriction shall be recorded in the office of the register of deeds in the county in which the property is located. The department shall present to the governor a full and complete report of the property to be donated, the reason for the donation, and the minimum price for which the property could likely be sold under sub. (5), together with an application for the governor's approval of the donation. The governor shall thereupon make such investigation as he or she considers necessary and approve or disapprove the application. Upon such approval, the department shall by appropriate deed or other instrument transfer the property to the donee. The approval of the governor is not required for donation of property having an appraised value at the time of donation of not more than $15,000. Any expense incurred by the department in connection with the donation shall be paid from the transportation fund.

(5s) In lieu of the sale or conveyance of personal property under sub. (5), the department of transportation may, upon the request of the department of tourism, transfer to the department of tourism, at no cost, personal property that is owned by the state and under the jurisdiction of the department of transportation and that the department of transportation has determined is no longer necessary for the state's use for highway purposes.

(6) Subject to any prior action under s. 13.48 (14) (am) or 16.848 (1), lands held by any other state department or independent agency may, with the approval of the governor, be conveyed to the department in the manner prescribed by statute and, if none is prescribed, then by a conveyance authorized by appropriate order or resolution of the head of the department or independent agency concerned.

(7) When transportation funds or federal aid are involved in financing an expressway project under s. 59.84, the department, proceeding under the general authority in this section, may order that all or certain parts of the required land or interests therein shall be acquired by the county board or its designated standing committee. When so ordered, the county board or its designated standing committee and the department shall appraise and agree on the maximum price, including all damages recoverable in condemnation proceedings, considered reasonable for the lands or interests to be so acquired. The county board or its designated standing committee shall endeavor to obtain easements or title in fee simple by conveyance of the lands or interests required, to the county or the state as grantee, all as directed in the department's order. The instrument of conveyance shall be subject to approval by the department, and shall be recorded in the office of the register of deeds and filed with the department. If the needed lands or interests therein cannot be purchased expeditiously within the agreed appraised price, the county board or its designated standing committee may acquire them by condemnation under ch. 32, but any award by the county board or its designated standing committee in excess of the agreed appraisal price shall be subject to review by the department. For the purposes and in the manner provided in s. 59.84 (2) (d) 1., when so directed in the department's order, the county board or its designated standing committee may acquire remnants, and with the approval of the department the county board may dispose of remnants and may improve, use, maintain or lease lands and interests acquired and held in trust for the state until they are actually needed for expressway construction. The net proceeds of the sales or rentals shall be remitted to the state or retained and used for expressway purposes when so directed by the department.

(8)

(a) In this subsection, “surplus land" means land under the jurisdiction of the department which is unused and not needed for department operations or included in the department's plan for construction or development.

(b) Biennially, beginning on January 1, 1984, the department shall submit to the state building commission and the joint committee on finance an inventory of surplus land containing a general description of the location and an estimated value of each parcel. For each inventory submitted after May 25, 2006, the inventory shall contain a report including the estimated marketable value totals, by marketable type, of the land parcels, the net gain and net sale of surplus properties in the previous 2-year period, and a summary of the 5 most recent reports submitted under this paragraph.

History: 1971 c. 40; 1973 c. 118 s. 7; 1977 c. 29 ss. 936, 1654 (1), (8) (a), (b); 1977 c. 272, 418; 1979 c. 310; 1983 a. 27; 1991 a. 39; 1993 a. 246; 1995 a. 201, 406; 1997 a. 27, 35, 282; 1999 a. 83, 186; 2003 a. 33, 211, 327; 2005 a. 25, 392; 2007 a. 20; 2011 a. 32; 2013 a. 20.

Federal law required consideration and minimization of impact on lands containing Indian artifacts in designing a highway project, but did not specifically require mitigation. Condemnation for mitigation outside the highway right-of-way was not authorized by this section. Mitton v. DOT, 184 Wis. 2d 738, 516 N.W.2d 709 (1994).

Neither the interest of a potential purchaser of property for sale under sub. (5) nor the general public's interest in such sales are within the zone of interests the statute is intended to protect. As such, a potential purchaser does not have standing to bring an action based on violation of the procedures under sub. (5). Chenequa Land Conservancy, Inc. v. Village of Hartland, 2004 WI App 144, 275 Wis. 2d 533, 685 N.W.2d 573, 03-2486.

The commission has the power to condemn lands of one property owner to provide a public access road to another property owner who would otherwise be landlocked. 61 Atty. Gen. 36.

The highway commission may properly engage in hardship acquisitions under this section without the filing of an environmental impact statement under either federal or state law, but must in such instances comply with the requirements of ss. 84.09 and 32.25 (1). 62 Atty. Gen. 200.