The Village of Mukwonago improperly tried to condemn land for road construction that it previously pledged to the property donors would be used for a regional pond, the Court of Appeals ruled this week.
In 2003, the Greenwald Family Limited Partnership (GFLP) dedicated the parcel to the village for the specific purpose of serving as the pond, the three-judge panel for the District II Court of Appeals said in a per curiam decision.
The panel included Appellate Judges Mark Gundrum, Lisa Neubauer, and Maria Lazar.
The village accepted the condition, but in 2020, started its eminent domain process to acquire rights to build a road across the site for future commercial development. GFLP sued, seeking an injunction preventing the village from using the parcel for anything but a pond.
The village started condemnation proceedings, which the partnership also challenged.
Waukesha County Circuit Judge Ralph Ramirez granted summary judgment to GFLP.
Mukwonago appealed, arguing that its power of eminent domain allowed it to build the road.
"We disagree," the appeals panel said. "Where, as here, land is donated to a municipality through a statutory dedication ... the plain language of that statute mandates that the land be used 'for the purposes therein expressed and no other.' ”
That means, the panel said, the land must be used as a pond unless the village "complies with the statutory and constitutional procedures that permit modification" of the land's use.
The state constitution says that if the agreed-upon purpose of the donated land becomes impossible or impractical, the municipality must either return the land to the donor or obtain the donor's consent to alter its use.
Mukwonago also argued that it could use its eminent domain power because GFLP retained an interest in the parcel by restricting the property's use. The panel rejected that argument, saying that state law "expressly contemplates" land donations that limit its use but still convey ownership.
"The village has no eminent domain power to condemn property it owns," the appeals court said.
"To allow the village to use its power of eminent domain would undermine the integrity of statutory dedications and the trust placed in municipalities to adhere to the conditions of such dedications," it said.
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