2023 Wisconsin Statutes & Annotations › Chapter 32 - Eminent domain. › 32.19 - Additional items payable.

32.19
Additional items payable.
(1)
Declaration of purpose. The legislature declares that it is in the public interest that persons displaced by any public project be fairly compensated by payment for the property acquired and other losses hereinafter described and suffered as the result of programs designed for the benefit of the public as a whole; and the legislature further finds and declares that, notwithstanding subch. II, or any other provision of law, payment of such relocation assistance and assistance in the acquisition of replacement housing are proper costs of the construction of public improvements. If the public improvement is funded in whole or in part by a nonlapsible trust, the relocation payments and assistance constitute a purpose for which the fund of the trust is accountable.
(2)
Definitions. In this section and ss. 32.25 to 32.27:
(a)
“Business" means any lawful activity, excepting a farm operation, conducted primarily:
1.
For the purchase, sale, lease or rental of personal and real property, and for the manufacture, processing, or marketing of products, commodities, or any other personal property;
2.
For the sale of services to the public;
3.
By a nonprofit organization; or
4.
Solely for the purpose of sub. (3) for assisting in the purchase, sale, resale, manufacture, processing, or marketing of products, commodities, personal property, or services by the erection and maintenance of an outdoor advertising display or displays, whether or not such display or displays are located on the premises on which any of the above activities are conducted.
(b)
“Comparable dwelling" means one which, when compared with the dwelling being taken, is substantially equal concerning all major characteristics and functionally equivalent with respect to: the number and size of rooms and closets, area of living space, type of construction, age, state of repair, size and utility of any garage or other outbuilding, type of neighborhood and accessibility to public services and places of employment. “Comparable dwelling" shall meet all of the standard building requirements and other code requirements of the local governmental body and shall also be decent, safe and sanitary and within the financial means of the displaced person, as defined by the department of administration.
(c)
“Comparable replacement business" means a replacement business which, when compared with the business premises being acquired by the condemnor, is adequate for the needs of the business, is reasonably similar in all major characteristics, is functionally equivalent with respect to condition, state of repair, land area, building square footage required, access to transportation, utilities and public service, is available on the market, meets all applicable federal, state or local codes required of the particular business being conducted, is within reasonable proximity of the business acquired and is suited for the same type of business conducted by the acquired business at the time of acquisition.
(d)
“Comparable replacement farm operation" means a replacement farm operation which, when compared with the farm operation being acquired by the condemnor, is adequate for the needs of the farmer, is reasonably similar in all major characteristics, is functionally equivalent with respect to type of farm operation, condition and state of repair of farm buildings, soil quality, yield per acre, land area, access to transportation, utilities and public services, is within reasonable proximity of the acquired farm operation, is available on the market, meets all applicable federal, state or local codes required of the particular farm operation acquired and is suited for the same type of farming operation conducted by the displaced person at the time of acquisition.
(e)
1.
“Displaced person" means, except as provided under subd. 2., any person who moves from real property or who moves his or her personal property from real property:
a.
As a direct result of a written notice of intent to acquire or the acquisition of the real property, in whole or in part or subsequent to the issuance of a jurisdictional offer under this subchapter, for public purposes; or
b.
As a result of rehabilitation, demolition or other displacing activity, as determined by the department of administration, if the person is a tenant-occupant of a dwelling, business or farm operation and the displacement is permanent.
2.
“Displaced person" does not include:
a.
Any person determined to be unlawfully occupying the property or to have occupied the property solely for the purpose of obtaining assistance under ss. 32.19 to 32.27; or
b.
Any person, other than a person who is an occupant of the property at the time it is acquired, who occupies the property on a rental basis for a short term or a period subject to termination when the property is needed for the program or project for which it is being acquired.
(f)
“Farm operation" means any activity conducted solely or primarily for the production of one or more agricultural products or commodities for sale and home use, and customarily producing such products or commodities in sufficient quantity to be capable of contributing materially to the operator's support.
(g)
“Owner displaced person" means a displaced person who owned the real property being acquired and also owned the business or farm operation conducted on the real property being acquired.
(h)
“Person" means:
1.
Any individual, partnership, limited liability company, corporation or association which owns a business concern; or
2.
Any owner, part owner, tenant or sharecropper operating a farm; or
3.
An individual who is the head of a family; or
4.
An individual not a member of a family, except that 2 or more tenant occupants of the same dwelling unit shall be considered as one person.
(hm)
“Reasonable project costs” means the total of all of the following costs that an owner displaced person of an owner-occupied business or farm operation or tenant displaced person of a tenant-occupied business or farm operation must reasonably incur to make a business or farm operation to which the owner or tenant moves a comparable replacement business or farm operation under sub. (4m):
1.
Capital costs, including the actual costs of the construction of improvements, new buildings, structures, and fixtures; the demolition, alteration, remodeling, repair or reconstruction of existing buildings, structures, and fixtures; the removal or containment of, or the restoration of soil or groundwater affected by, environmental pollution; and the clearing and grading of land.
2.
Financing costs, including all interest paid to holders of evidences of indebtedness issued to pay for project costs and any premium paid over the principal amount of the obligations because of the redemption of the obligations prior to maturity.
3.
Professional service costs, including costs incurred for architectural, planning, engineering, and legal advice and services.
4.
Imputed administrative costs, including reasonable charges for the time spent by the owner or tenant in connection with the implementation of the project.
5.
Costs related to the construction or alteration of sewerage treatment plants, water treatment plants or other environmental protection devices, storm or sanitary sewer lines, water lines, or amenities on streets; the relocation of utility lines or other utility infrastructure, including any lines or infrastructure related to an electric utility, natural gas utility, or telecommunications utility; the installation of infrastructure necessary to provide utility service to the property, including any service from an electric utility, natural gas utility, or telecommunications utility; or the rebuilding or expansion of streets if such costs are required by the applicable municipality and are not paid for by the municipality.
(i)
“Tenant displaced person" means a displaced person who owned the business or farm operation conducted on the real property being acquired but leased or rented the real property.
(2m)
Information on payments. Before initiating negotiations to acquire the property under s. 32.05 (2a), 32.06 (2a) or subch. II, the condemnor shall provide displaced persons with copies of applicable pamphlets prepared under s. 32.26 (6).
(3)
Relocation payments. Any condemnor which proceeds with the acquisition of real and personal property for purposes of any project for which the power of condemnation may be exercised, or undertakes a program or project that causes a person to be a displaced person, shall make fair and reasonable relocation payments to displaced persons, business concerns and farm operations under this section. Payments shall be made as follows:
(a)
Moving expenses; actual. The condemnor shall compensate a displaced person for the actual and reasonable expenses of moving the displaced person and his or her family, business or farm operation, including personal property; actual direct losses of tangible personal property as a result of moving or discontinuing a business or farm operation, but not to exceed an amount equal to the reasonable expenses that would have been required to relocate such property; actual reasonable expenses in searching for a replacement business or farm operation; and actual reasonable expenses necessary to reestablish a business or farm operation, not to exceed $10,000, unless compensation for such expenses is included in the payment provided under sub. (4m).
(b)
Moving expenses; optional fixed payments.
1.
`Dwellings.' Any displaced person who moves from a dwelling and who elects to accept the payments authorized by this paragraph in lieu of the payments authorized by par. (a) may receive an expense and dislocation allowance, determined according to a schedule established by the department of administration.
2.
`Business and farm operations.' Any displaced person who moves or discontinues his or her business or farm operation, is eligible under criteria established by the department of administration by rule and elects to accept payment authorized under this paragraph in lieu of the payment authorized under par. (a), may receive a fixed payment in an amount determined according to criteria established by the department of administration by rule, except that such payment shall not be less than $1,000 nor more than $20,000. A person whose sole business at the displacement dwelling is the rental of such property to others is not eligible for a payment under this subdivision.
(c)
Optional payment for businesses. Any displaced person who moves his or her business, and elects to accept the payment authorized in par. (a), may, if otherwise qualified under par. (b) 2., elect to receive the payment authorized under par. (b) 2., minus whatever payment the displaced person received under par. (a), if the displaced person discontinues the business within 2 years of the date of receipt of payment under par. (a), provided that the displaced person meets eligibility criteria established by the department of administration by rule. In no event may the total combined payment be less than $1,000 nor more than $20,000.
(d)
Federally financed projects. Notwithstanding pars. (a) to (c), in the case of a program or project receiving federal financial assistance, a condemnor shall, in addition to any payment under pars. (a) to (c), make any additional payment required to comply with the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 USC 4601 to 4655, and any regulations adopted thereunder.
(4)
Replacement housing.
(a)
Owner-occupants. In addition to amounts otherwise authorized by this subchapter, the condemnor shall make a payment, not to exceed $25,000, to any displaced person who is displaced from a dwelling actually owned and occupied, or from a mobile home site actually owned or occupied, by the displaced person for not less than 180 days prior to the initiation of negotiations for the acquisition of the property. For the purposes of this paragraph, a corporation organized under ch. 181 that is a nonprofit corporation, as defined in s. 181.0103 (17), may, if otherwise eligible, be considered a displaced owner. A displaced owner may elect to receive the payment under par. (b) 1. in lieu of the payment under this paragraph. Such payment includes only the following:
1.
The amount, if any, which when added to the acquisition payment, equals the reasonable cost of a comparable replacement dwelling available on the private market, as determined by the condemnor.
1m.
In the case of a person displaced from a mobile home site who meets one of the conditions under subd. 1m. a., b. or c., the amount, if any, which when added to the trade-in or salvage value of the mobile home equals the reasonable cost of a comparable mobile home which is decent, safe and sanitary, plus an amount equal to 48 times the difference between the monthly rent being paid for the site on which the mobile home is located and the monthly rent for a comparable mobile home site or the amount necessary to enable the displaced person to make a down payment on the purchase of a comparable mobile home site. If a comparable mobile home dwelling is not available, the replacement housing payment shall be calculated on the basis of the next highest type of mobile home or a conventional dwelling that is available and meets the requirements and standards for a comparable dwelling. The owner of a mobile home shall be eligible for payments under this subdivision if one of the following conditions is met:
a.
The mobile home is not considered to be a decent, safe and sanitary dwelling unit.
b.
The structural condition of the mobile home is such that it cannot be moved without substantial damage or unreasonable cost.
c.
There are no adequate or available replacement sites to which the mobile home can be moved.
2.
The amount of increased interest expenses and other debt service costs incurred by the owner to finance the purchase of another property substantially similar to the property taken, if at the time of the taking the land acquired was subject to a bona fide mortgage or was held under a vendee's interest in a bona fide land contract, and such mortgage or land contract had been executed in good faith not less than 180 days prior to the initiation of negotiations for the acquisition of such property. The computation of the increased interest costs shall be determined according to rules promulgated by the department of administration.
3.
Reasonable incidental fees, commissions, discounts, surveying costs, title evidence costs and other closing costs incurred in the purchase of replacement housing, but not including prepaid expenses.
(ag)
Limitation. Payment under par. (a) shall be made only to a displaced person who purchases and occupies a decent, safe and sanitary replacement dwelling not later than one year after the date on which the person moves from the dwelling acquired for the project, or the date on which the person receives payment from the condemnor, whichever is later, except that the condemnor may extend the period for good cause. If the period is extended, payment under par. (a) shall be based on the costs of relocating the displaced person to a comparable replacement dwelling within one year of the date on which the person moves from the dwelling acquired for the project.
(b)
Tenants and certain others. In addition to amounts otherwise authorized by this subchapter, the condemnor shall make a payment to any individual or family displaced from any dwelling which was actually and lawfully occupied by such individual or family for not less than 90 days prior to the initiation of negotiations for the acquisition of such property or, if displacement is not a direct result of acquisition, such other event as determined by the department of administration by rule. For purposes of this paragraph, a corporation organized under ch. 181 that is a nonprofit corporation, as defined in s. 181.0103 (17), may, if otherwise eligible, be considered a displaced tenant. Subject to the limitations under par. (bm), such payment shall be either:
1.
The amount, if any, which, when added to the rental cost of the acquired dwelling, equals the reasonable cost of leasing or renting a comparable dwelling available on the private market for a period not to exceed 4 years, as determined by the condemnor, but not to exceed $8,000; or
2.
If the person elects to purchase a comparable dwelling, the amount determined under subd. 1. plus expenses under par. (a) 3.
(bm)
Limitations.
1.
Payment under par. (b) shall be made only to a displaced person who rents, leases or purchases a decent, safe and sanitary replacement dwelling and occupies that dwelling not later than one year after the date on which the person moves from the displacement dwelling, except that the condemnor may extend the period for good cause.
2.
If a displaced person occupied the dwelling acquired for at least 90 days but not more than 180 days prior to the initiation of negotiations for the acquisition of the property, the payment under par. (b) may not exceed the amount the displaced person would receive if the displaced person was eligible for a payment under par. (a).
(c)
Additional payment. If a comparable dwelling is not available within the monetary limits established in par. (a) or (b), the condemnor may exceed the monetary limits and make payments necessary to provide a comparable dwelling.
(d)
Federally financed projects. Notwithstanding pars. (a) to (c), in the case of a program or project receiving federal financial assistance, a condemnor shall, in addition to any payment under pars. (a) to (c), make any additional payment required to comply with the federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 USC 4601 to 4655, and any regulations adopted thereunder.
(4m)
Business or farm replacement payment.
(a)
Owner-occupied business or farm operation. In addition to amounts otherwise authorized by this subchapter, the condemnor shall make a payment to any owner displaced person who has owned and occupied the business operation, or owned the farm operation, for not less than one year prior to the initiation of negotiations for the acquisition of the real property on which the business or farm operation lies, and who actually purchases a comparable replacement business or farm operation for the acquired property within 2 years after the date the person vacates the acquired property or receives payment from the condemnor, whichever is later. An owner displaced person who has owned and occupied the business operation, or owned the farm operation, for not less than one year prior to the initiation of negotiations for the acquisition of the real property on which the business or farm operation lies may elect to receive the payment under par. (b) 1. in lieu of the payment under this paragraph, but the amount of payment under par. (b) 1. to such an owner displaced person may not exceed the amount the owner displaced person is eligible to receive under this paragraph. If the condemnor is a village, town, or city, the payment by the condemnor under this paragraph may not exceed $100,000. The additional payment under this paragraph shall include the following amounts:
1.
The amount, if any, which when added to the acquisition cost of the property, other than any dwelling on the property, equals the reasonable cost of a comparable replacement business or farm operation for the acquired property, as determined by the condemnor.
2.
The amount, if any, which will compensate such owner displaced person for any increased interest and other debt service costs which such person is required to pay for financing the acquisition of any replacement property, if the property acquired was encumbered by a bona fide mortgage or land contract which was a valid lien on the property for at least one year prior to the initiation of negotiations for its acquisition. The amount under this subdivision shall be determined according to rules promulgated by the department of administration.
3.
Reasonable expenses incurred by the displaced person for evidence of title, recording fees and other closing costs incident to the purchase of the replacement property, but not including prepaid expenses.
4.
Any reasonable project costs incurred or to be incurred by the displaced person.
(b)
Tenant-occupied business or farm operation. In addition to amounts otherwise authorized by this subchapter, the condemnor shall make a payment to any tenant displaced person who has owned and occupied the business operation, or owned the farm operation, for not less than one year prior to initiation of negotiations for the acquisition of the real property on which the business or farm operation lies or, if displacement is not a direct result of acquisition, such other event as determined by the department of administration, and who actually rents or purchases a comparable replacement business or farm operation for the displaced business or farm operation within 2 years after the date the person vacates the acquired property. At the option of the tenant displaced person, such payment shall be either:
1.
The amount that is necessary to lease or rent a comparable replacement business or farm operation for a period of 4 years, plus any reasonable project costs incurred or to be incurred by the tenant displaced person. If the condemnor is a village, town, or city, the amount paid under this subdivision may not exceed $80,000. The rental payment shall be computed by determining the average monthly rent paid for the property from which the person was displaced for the 12 months prior to the initiation of negotiations or, if displacement is not a direct result of acquisition, such other event as determined by the department of administration and the monthly rent of a comparable replacement business or farm operation, and multiplying the difference by 48; or
2.
If the tenant displaced person elects to purchase a comparable replacement business or farm operation, the amount determined under subd. 1. plus expenses under par. (a) 3.
(5)
Eminent domain. Nothing in this section or ss. 32.25 to 32.27 shall be construed as creating in any condemnation proceedings brought under the power of eminent domain, any element of damages.
History:  1971 c. 99, 103, 244, 287; 1973 c. 192; 1975 c. 224, 273; 1977 c. 418, 438, 440; 1979 c. 32, 221, 358, 361; 1981 c. 390 s. 252; 1983 a. 27 ss. 881 to 888; 1983 a. 186, 189; 1983 a. 236 ss. 12, 13; 1983 a. 538; 1987 a. 399; 1993 a. 112; 1995 a. 27 ss. 1713 to 1722, 9116 (5); 1995 a. 225; 1997 a. 79; 2011 a. 32; 2015 a. 55; 2017 a. 243.
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 occupant 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, 02-3102.
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, 03-1732.
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, 04-0267.
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 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. (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 Co., 2013 WI 77, 350 Wis. 2d 242, 833 N.W.2d 764, 12-0805.
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 & Cosmetic Plastic Surgery Center, LLC v. DOT, 2014 WI App 88, 356 Wis. 2d 197, 853 N.W.2d 607, 13-2052.
State debt financing of relocation payments is permissible under article VIII, section 7 (2) (a), of the Wisconsin Constitution. 62 Atty. Gen. 42.
Discussing relocation benefits and services when an owner initiates negotiations for the acquisition. 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 an 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 (1984).
Eminent Domain—Compensation for Lost Rents. 1971 WLR 657.