Owners of rental property who do not physically occupy the real property taken for public use are ineligible for business replacement payments under sub. (4m). A business that owned a parking lot used for customer and employee parking was an occupants of the lot and a displaced person under sub. (2) (e) eligible for relocation benefits under s. 32.05 (8). City of Milwaukee v. Roadster LLC, 2003 WI App 131
, 265 Wis. 2d 518
, 666 N.W.2d 524
Both statutory and administrative code provisions contemplate that the initial offer of a replacement housing payment is not static in amount. These provisions contemplate a more dynamic approach, allowing for recomputation of the payment after the acquisition damages have been more fully assessed. Pinczkowski v. Milwaukee County, 2005 WI 161
, 286 Wis. 2d 339
, 706 N.W.2d 642
Sub. (2) (c) does not require: 1) identification of a property that is identical to the property condemned; or 2) that at the moment of identification, the property, without modification, can be used by the business that was relocated. Rather, it requires identification of a property that with modification can be used for the occupier's business. A condemnor has no open-ended obligation to provide a replacement property that is acceptable to the business being relocated. City of Janesville v. CC Midwest, Inc. 2007 WI 93
, 302 Wis. 2d 599
; 734 N.W.2d 428
The definition of “displaced person" in sub. (2) (e) 1. b. provides that a “displaced person" is one whose move is prompted by “rehabilitation, demolition, or other displacing activity" and is an alternative to in sub. (2) (e) 1. a., which contains no reference to the physical condition or habitability of the condemned property, and instead defines “displaced person" in terms of “direct" causation. Sub. sub. (2) (e) 1. b. contains no explicit requirement that a person's move must be “forced" or involuntary in order to render that person “displaced." Waller v. American Transmission Company, LLC, 2013 WI 77
, 350 Wis. 2d 242
, 833 N.W.2d 764
A suit against a state agency constitutes a suit against the state for purposes of sovereign immunity. If the legislature has not specifically consented to the suit, then sovereign immunity deprives the court of personal jurisdiction. The legislature has specifically directed the manner in which suits may be brought against the state to vindicate rights under this section. The displaced person must file a claim under s. 32.20, which must, under that section's specific language, precede any resort to court. Aesthetic and Cosmetic Plastic Surgery Center, LLC v. Department of Transportation, 2014 WI App 88
, 356 Wis. 2d 197
, 853 N.W.2d 607
State debt financing of relocation payments is permissible under art. VIII, s. 7 (2) (a). 62 Atty. Gen. 42.
Relocation benefits and services, when an owner initiates negotiations for the acquisition, is discussed. 62 Atty. Gen. 168.
State agencies engaging in advance land acquisitions must comply with this section et seq., Wisconsin's relocation assistance and payment law. 63 Atty. Gen. 201.
Wisconsin condemnors are not bound by the federal relocation act. Relocation assistance and payments to displaced persons must be made in accordance with ss. 32.19 to 32.27. Unrelated individuals who share a common dwelling for convenience sake without a common head of the household are persons under this section. 63 Atty. Gen. 229.
Religious societies incorporated under ch. 187 are “persons" within the meaning of the relocation assistance act and are entitled to the benefits of the act if they otherwise qualify. 63 Atty. Gen. 578.
An owner of rental property, regardless of its size, is engaged in “business" under sub. (2) (d) [now sub. (2) (a)]. 69 Atty. Gen. 11.
Owners of rental property who do not physically occupy real property taken for public use are not eligible for business replacement payments under sub. (4m). 69 Atty. Gen. 263.
Condemnors may not offer displaced persons a loan or alternative assistance in lieu of payments. Condemnors may not obtain waivers of benefits as a condition for participation in acquisition program. 70 Atty. Gen. 94.
A tenant who rents new property in reasonable anticipation of displacement prior to actual displacement is entitled to replacement payments under sub. (4m) (b). 70 Atty. Gen. 120.
There was no constitutional “taking" when tenants were ordered to vacate temporarily their uninhabitable dwelling to permit repairs pursuant to a housing code. Devines v. Maier, 728 F.2d 876
Compensation for lost rents. 1971 WLR 657.
Expenses incidental to transfer of property.
In addition to amounts otherwise authorized by this subchapter, the condemnor shall reimburse the owner of real property acquired for a project for all reasonable and necessary expenses incurred for:
Recording fees, transfer taxes and similar expenses incidental to conveying such property.
Penalty costs for prepayment of any mortgage entered into in good faith encumbering such real property if the mortgage is recorded or has been filed for recording as provided by law prior to the date specified in s. 32.19 (4) (a) 2.
The proportional share of real property taxes paid which are allocable to a period subsequent to the date of vesting of title in the condemnor or the effective date of possession of such real property by the condemnor, whichever is earlier.
The cost of realigning personal property on the same site in partial takings or where realignment is required by reason of elimination or restriction of existing used rights of access.
Expenses incurred for plans and specifications specifically designed for the property taken and which are of no value elsewhere because of the taking.
Reasonable net rental losses when all of the following are true:
The losses are directly attributable to the public improvement project.
The losses are shown to exceed the normal rental or vacancy experience for similar properties in the area.
Cost of fencing reasonably necessary pursuant to s. 32.09 (6) (g)
shall, when incurred, be payable in the manner described in s. 32.20
See also s. Adm 92.001
, Wis. adm. code.
An owner who is legally liable for expenses incurred for plans relating to condemned property is entitled to reimbursement under sub. (5). Shepherd Legan Aldrian Ltd. v. Village of Shorewood, 182 Wis. 2d 472
, 513 N.W.2d 686
(Ct. App. 1994).
Relocation payments not taxable.
Except for reasonable net rental losses under s. 32.195 (6)
, no payments received under s. 32.19
may be considered income for the purposes of ch. 71
; nor may such payments be considered income or resources to any recipient of public assistance and such payments shall not be deducted from the amount of aid to which the recipient would otherwise be entitled under any welfare law.
History: 1983 a. 27
See also s. Adm 92.001
, Wis. adm. code.
Waiver of relocation assistance.
An owner-occupant of property being acquired may waive his or her right to receive any relocation payments or services under this subchapter if the property being acquired is not contiguous to any property which may be acquired by the condemnor and is not part of a previously identified or proposed project where it is reasonable to conclude that acquisition by the condemnor may occur in the foreseeable future. Prior to the execution of any waiver under this section, the condemnor shall provide to the owner-occupant, in writing, full information about the specific payments and services being waived by the owner-occupant. The department of administration shall by rule establish procedures for relocation assistance waivers under this section to ensure that the waivers are voluntarily and knowledgeably executed.
See also s. Adm 92.001
, Wis. adm. code.
Procedure for collection of itemized items of compensation.
Claims for damages itemized in ss. 32.19
shall be filed with the condemnor carrying on the project through which condemnee's or claimant's claims arise. All such claims must be filed after the damages upon which they are based have fully materialized but not later than 2 years after the condemnor takes physical possession of the entire property acquired or such other event as determined by the department of administration by rule. If such claim is not allowed within 90 days after the filing thereof, the claimant has a right of action against the condemnor carrying on the project through which the claim arises. Such action shall be commenced in a court of record in the county wherein the damages occurred. In causes of action, involving any state commission, board or other agency, excluding counties, the sum recovered by the claimant shall be paid out of any funds appropriated to such condemning agency. Any judgment shall be appealable by either party and any amount recovered by the body against which the claim was filed, arising from costs, counterclaims, punitive damages or otherwise may be used as an offset to any amount owed by it to the claimant, or may be collected in the same manner and form as any other judgment.
See also s. Adm 92.001
, Wis. adm. code.
This statute mandates the procedure for making any and all claims by condemnees. Rotter v. Milwaukee County Expressway & Transportation Commission, 72 Wis. 2d 553
, 241 N.W.2d 440
To stop this time limit from beginning to run, the condemnee must avoid giving physical possession of the property to the condemnor. The statute provides no exception for the circumstance in which the condemnor and condemnee engage in good faith negotiations as to the amount of relocation expenses to be paid. The legislature specifically used the term “physical" to avoid uncertainty in identifying the exact time when the legal right to possession arises. C. Coakley Relocation Systems v. City of Milwaukee, 2007 WI App 209
, 305 Wis. 2d 487
, 740 N.W.2d 636
Whenever any lands or interest therein are urgently needed by any state board, or commission, or other agency of the state, and a contract for the purchase or use of the property cannot be made for a reasonable price, or for any other reason, including the unavailability of the owner or owners, the board, commission or agency may, with the approval of the governor, issue an award of damages and upon tender of the award to the owner or owners, or deposit in a court of record in the county where the lands are situated in cases where an owner is not available or tender is refused, take immediate possession of said property. Deposit in a court of record may be made by registered mail addressed to the clerk of the court. The governor shall determine whether or not such an award shall issue. Appeal from said award of damages will lie as in other similar cases and all provisions of this subchapter shall govern, except as to the provision herein concerning the immediate issuance of the award tender and immediate possession.
History: 1981 c. 390
; 1983 a. 236
See also s. Adm 92.001
, Wis. adm. code.
Special procedure for immediate condemnation. 32.22(1)(1)
In this section, unless the context requires otherwise:
“Blighted property" means any property which, by reason of abandonment, dilapidation, deterioration, age or obsolescence, inadequate provisions for ventilation, light, air or sanitation, high density of population and overcrowding, faulty lot layout in relation to size, adequacy, accessibility or usefulness, unsanitary or unsafe conditions, deterioration of site or other improvements, or the existence of conditions which endanger life or property by fire or other causes, or any combination of such factors, is detrimental to the public health, safety or welfare.
“Municipality" means a city, a village, a town, a housing authority created under ss. 66.1201
, a redevelopment authority created under s. 66.1333
or a community development authority created under s. 66.1335
“Owner" means any person holding record title in the property.
“Residential" means used principally for dwelling purposes.
Any municipality may use the procedures in this section for the condemnation of blighted residential property, in lieu of the procedures in s. 32.06
. Any 1st class city may use the procedures in this section for the condemnation of blighted residential property, in lieu of the procedures in subch. II
. The procedures in this section may only be used to acquire all of the property in a single parcel. Except as provided in sub. (12)
, the procedures in this section may not be used by a municipality to acquire blighted residential property for any purpose which requires the razing of the residential building.
(3) Determination of necessity of taking.
The necessity of taking shall be determined under s. 32.07
(4) Appraisal; information on blight; warrant. 32.22(4)(a)1.1.
The municipality shall prepare one or more appraisals of any blighted residential property proposed to be acquired under this section. In preparing any appraisal under this paragraph, the appraiser shall confer with the owner or the owner's representative, if either can be located with reasonable diligence. The condemnor shall provide the owner with a full narrative appraisal upon which the petition under sub. (5)
is based and a copy of any other appraisal made under this paragraph and at the same time shall inform the owner of his or her right to obtain an appraisal under subd. 2.
The owner may obtain an appraisal by a qualified appraiser of all property proposed to be acquired. The owner may submit the reasonable costs of the appraisal to the condemnor for payment, along with a copy of the owner's full narrative appraisal and evidence of the owner's payment for the appraisal within 60 days after the petition is filed under sub. (5)
. After receipt of the statement of appraisal costs, proof of payment and a copy of the appraisal, the municipality shall promptly reimburse the owner for the reasonable costs of the appraisal. The condemnor shall not be required to reimburse more than one owner under this subdivision for an appraisal relating to the condemnation under this section of any single parcel of real estate. If record title exists in more than one person, the person obtaining reimbursement under this subdivision shall provide a copy of the owner's appraisal to each other person who is an owner, as defined in sub. (1) (c)
Before submitting the petition under sub. (5)
, the municipality shall ascertain that the property is blighted and shall note any other evidence of blight, such as unlocked doors, unlocked or broken windows and screens, lack of gas, electric or water service, absence of personal belongings in the building and any conditions which render the building untenantable.
Prior to entry into any building proposed to be acquired under this section, the condemnor shall obtain a special condemnation warrant under this paragraph. To obtain a special condemnation warrant, the condemnor shall petition the circuit court for the county in which the property proposed to be acquired is located and shall mail a copy of the petition for a warrant under this paragraph by registered or certified mail to the owner's last-known address if any. The court shall issue the warrant on the condemnor's affidavit that the condemnor intends to condemn the property under this section; that the condemnor has mailed a copy of the petition for the warrant as required in this paragraph; and that an external inspection of the property indicates that it is blighted.
(5) Petition for condemnation proceedings. 32.22(5)(a)(a)
A municipality may present a verified petition to the circuit court for the county in which the property to be taken is located, for proceedings to take immediate possession of blighted residential property and for proceedings to determine the necessity of taking, where such determination is required. The compensation offered for the property shall accompany the petition.
Describe the property and interests sought to be acquired.
State the authority of the municipality to condemn the property.
Describe the facts which indicate that property is blighted.
Itemize the compensation offered for the property according to the items of damages under s. 32.09
Describe the condemnor's plan to preserve the property pending rehabilitation.
Describe the condemnor's plan to rehabilitate the property and return it to the housing market.
Immediately upon receipt of the petition, the circuit court shall examine the evidence presented by the municipality showing that the property is blighted. If the circuit court finds that the property is blighted, the court shall immediately direct the municipality to serve a copy of the petition and a notice on the owner under s. 801.12 (1)
, and to post a copy of the petition and notice on the main entrance to the residential building. The notice shall state that:
The owner may accept the compensation offered by filing a petition with the clerk of the court.
The owner may commence a court action to contest the right of condemnation as provided in sub. (8)
within 40 days from completion of service of process.
The owner may appeal for greater compensation without prejudice to the right to use the compensation given by the award under sub. (10)
within 2 years from the date of taking of the property.
Acceptance of the award is an absolute bar to an action to contest the right of condemnation under sub. (8)
If any owner is a minor or an individual adjudicated incompetent, a special guardian shall be appointed under s. 32.05 (4)
(7) Possession and protection of the property.
Within one working day after the municipality files proof of service of the petition and notice under s. 801.12 (1)
, the court shall grant the municipality immediate possession of the property. After obtaining the right to possession of the property, the municipality may take any action necessary to protect the property. The municipality shall post a notice on the main entrance to the building directing any occupant of the property to contact the municipality for information on relocation assistance.
(8) Action to contest right of condemnation. 32.22(8)(a)(a)
If an owner desires to contest the right of the condemnor to condemn the property described in the petition, for any reason other than that the amount of compensation offered is inadequate, the owner may within 40 days from the date of service and posting of the notice under sub. (6)
commence an action in the circuit court of the county in which the property is located, naming the condemnor as defendant. If the action is based on the allegation that the condemned property is not blighted, the owner shall demonstrate by a preponderance of the credible evidence that the property is not blighted.
An action under this subsection shall be the only manner in which any issue other than the amount of just compensation, or other than proceedings to perfect title under ss. 32.11
, may be raised pertaining to the condemnation of the property described in the petition. The trial of the issues raised by the pleadings in an action under this subsection shall be given precedence over all other actions in the circuit court then not actually on trial. If the action under this subsection is not commenced within the time limited, or if compensation offered for the condemned property is accepted, the owner or other person having any interest in the property shall be barred from raising any objection to the condemnor's right to condemn the property under this section in any manner.
Nothing in this subsection limits in any respect the right to determine the necessity of taking under s. 32.07
. Nothing in this subsection limits the right of the municipality to exercise control over the property under sub. (7)
If the final judgment of the court is that the municipality is not authorized to condemn the property, the court shall award the owner a sum equal to actual damages, if any, caused by the municipality in exercising control over the property, in addition to the amounts provided in s. 32.28
(9) Payment of compensation; transfer of title. 32.22(9)(a)(a)
If the owner accepts the compensation offered, or if the owner does not accept the compensation offered but no timely action is commenced under sub. (8)
, or if in an action under sub. (8)
the circuit court holds that the municipality may condemn the property, the court shall order the title transferred to the municipality and the compensation paid to the owner.
The clerk of court shall give notice of the order under par. (a)
by certified mail, or by a class 3 notice under ch. 985
, if any owner cannot be found, or any owner's address is unknown. The notice shall indicate that the owner may receive his or her proper share of the award by petition to and order of the court. The petition may be filed with the clerk of the court without fee.
(10) Action to contest amount of compensation.
Within 2 years after the date of taking under this section, an owner may appeal from the award using the procedures in s. 32.05 (9)
and chs. 808
without prejudice to the owner's right to use the compensation received under sub. (9)
pending final determination under this subsection. For purposes of this subsection, the “date of taking" and the “date of evaluation" shall be the date of filing the petition in circuit court under sub. (5)
. For the purposes of this subsection, the “basic award" shall be the amount paid into the circuit court by the municipality under sub. (5)
. If the owner is successful on the appeal and the circuit court awards an amount higher than the basic award, the court shall award the owner the amounts provided in s. 32.28
If within 2 years after the petition is filed by the municipality, any person claims to have been a lawful occupant of the property condemned on the date the petition was filed, that individual may submit a request for relocation assistance under s. 32.25
to the municipality. The municipality shall, within 30 days after receipt of the request, either grant this request or apply to the circuit court for the county in which the property is located for a resolution of the claim.
If an application is made to the circuit court under par. (a)
, the court shall conduct a hearing and determine whether the claimant had a lawful right to occupy the property and whether the claimant actually occupied the property on the date the petition was filed. If the court finds in favor of the claimant, the court shall direct the municipality to provide the relocation assistance and other aid available under s. 32.25
to a displaced person at the time of condemnation, unless the municipality abandons the proceedings and the claimant is able to resume occupancy of the property.
No determination by a court under par. (b)
in favor of a claimant affects the right of the municipality to condemn the property under this section in any case in which the owner accepts the compensation offered by the municipality or in which the claim under par. (a)
is made after the latest date on which the owner could have filed an action under sub. (8)