September/October 2024 Issue

Also in this issue: What’s All This About Chevron?     |     City of Eau Claire's New Children's Museum Shows How Public-Private Partnerships Bring About Innovation     |     Welcome Aiyanah Simms

Public Dedications: When Municipal Property Rights Are Less Than Total

Jared Walker Smith | 10.16.24

A municipality may acquire real property in many different ways, including by purchase, eminent domain, gift, or dedication. But not all of these ways are always equal in how a municipality may use or dispose of its land once acquired. This article discusses the implications of acquiring property through each method before focusing on the restrictions that a municipality may find itself under when owning land acquired through dedication or conditional gift.

The cleanest way for a municipality to acquire land is usually by purchase or unconditional gift. So long as there are no other recorded restrictions (such as restrictive covenants) or competing rights (such as easements), the municipality should be able to use the land for any public purpose otherwise allowed under applicable local, state, and federal law, including local zoning and land use regulations.

The ability to initially use land acquired through a municipality’s eminent domain power is constitutionally restricted to direct public use and occupation and may be otherwise limited by statute. See Wis. Const. art. I, § 13; see e.g. Wis. Stat. § 32.03(6)(b) (prohibiting the acquisition of property through eminent domain if the municipality intends to transfer it to a private entity). In many instances only an easement interest is acquired through condemnation. (In Wisconsin, a municipality always acquires only an easement in land condemned for public streets.) When an easement, including for highway purposes, is abandoned, the interest typically reverts back to the person — or their successor in interest — from whom the easement right was acquired. When fee simple title is acquired through condemnation, a municipality typically has more rights. When the public purpose for the condemnation is lawfully discontinued or abandoned, the municipality generally may use or dispose of the land for any other lawful purposes.

Acquisitions of land or rights in land by way of dedication or conditional gift always come with strings attached. The dedication of any land for a public purpose on a plat or certified survey map are statutorily limited to ​“the purposes therein expressed and no other.” Wis. Stat. § 236.29; see also Wis. Stat. § 236.34(1m)(e). Under a typical conditional gift, the deed by which the municipality acquired the land will indicate both the limitations under which a municipality may use the land (e.g., for a public park) and, should that use be abandoned, the consequences (oftentimes reversion of interest back to the grantor).

Whether or not a deed states a consequence, however, for either a conditional gift or dedication a municipality is constitutionally required to offer to return the land to the donor. Wisconsin Const. art. XI, § 3a provides that where a municipality accepts ​“a gift or dedication of land made on condition that the land be devoted to a special purpose and the condition subsequently becomes impossible or impractical, such governing body may be resolution or ordinance enacted by a two-thirds vote of its members elect either to grant the land back to the donor or dedicator or his heirs or accept from the donor or dedicator or his heirs a grant relieving” the municipality of the condition. (See also Wis. Stat. § 66.1025, allowing a municipality to seek court relief from such a condition when the donor or their heirs cannot be found.)

A municipality cannot get around this constitutionally imposed procedure by using its eminent domain powers, as was affirmed in a recent Wisconsin Court of Appeals case, Greenwald Family Limited Partnership v. Village of Mukwonago, 2022AP284 (unpublished per curiam decision).

In Greenwald, the Greenwald Family Limited Partnership (“GFLP”) dedicated a parcel of land on a plat to the Village of Mukwonago for the specific purpose of serving as a regional pond. Roughly 17 years after accepting the dedication and constructing the pond, the Village began condemnation proceedings to acquire property rights to build a road across the pond parcel for future commercial development. GFLP objected and sued. The Court of Appeals affirmed the circuit court’s judgment that, through the section 236.29 dedication, the Village acquired the property in fee simple and the Village has no eminent domain power to condemn property that it owns. The only procedure for a municipality to relieve itself of conditions imposed by way of dedication or gift are the procedures outlined in Wis. Const. art. XI, § 3a and Wis. Stat. § 66.1025.

The bottom line is that before a municipality disposes or looks to change the use on any public property, the municipality should understand (1) the manner in which the municipality acquired the property and (2) whether any restrictions were placed on the acquisition or retention of the property. Doing this at the beginning of the sale or redevelopment process — and resolving any issues discovered — could save the municipality significant time and money down the road.