651 N.W.2d 1 (Wis.App. 2002), 01-1913, Dotty Dumpling's Dowry, Ltd. v. Community Development Authority of City of Madison

Docket Nº:01-1913.
Citation:651 N.W.2d 1, 257 Wis.2d 377
Opinion Judge:[8] The opinion of the court was delivered by: Deininger, J.
Party Name:DOTTY DUMPLING'S DOWRY, LTD., Plaintiff-Appellant, [d] v. COMMUNITY DEVELOPMENT AUTHORITY OF THE CITY OF MADISON, Defendant-Respondent. Community Development Authority of the City of Madison, Plaintiff-Respondent, v. Dotty Dumpling's Dowry, Ltd., Defendant-Appellant. d
Case Date:July 25, 2002
Court:Court of Appeals of Wisconsin

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651 N.W.2d 1 (Wis.App. 2002)

257 Wis.2d 377

DOTTY DUMPLING'S DOWRY, LTD., Plaintiff-Appellant, [d]



Community Development Authority of the City of Madison, Plaintiff-Respondent,


Dotty Dumpling's Dowry, Ltd., Defendant-Appellant. d

No. 01-1913.

Court of Appeals of Wisconsin

July 25, 2002.

Submitted on Briefs Jan. 11, 2002.

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[257 Wis.2d 381] On behalf of the plaintiff-appellant/defendant-appellant, the cause was submitted on the briefs of Alan Marcuvitz and Andrea Roschke of Weiss Berzowski Brady LLP, Milwaukee.

On behalf of the defendant-respondent/plaintiff-respondent, the cause was submitted on the brief of Benjamin Southwick, Richland Center.

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Dotty Dumpling's Dowry, Ltd. (Dotty), appeals an order granting the Community Development Authority of the City of Madison a writ of [257 Wis.2d 382] assistance to remove Dotty from premises which the Authority had condemned. Dotty claims the circuit court erred in granting the writ because "a comparable replacement property" was not "made available" to Dotty, as required by WIS. STAT. § 32.05(8) (1999-2000). 1 We conclude, however, that comparable replacement property was "made available" to Dotty " to the extent required by the relocation assistance law." City of Racine v. Bassinger, 163 Wis.2d 1029, 1040, 473 N.W.2d 526 (Ct.App.1991). Accordingly, the trial court did not err in granting the writ and we affirm its issuance.


¶ 2 The relevant facts are largely undisputed. Dotty owned and operated a restaurant business on Fairchild Street in downtown Madison since 1991. The sole shareholder of Dotty had operated a restaurant of the same name at two other locations on Madison's near west side since 1975. Dotty owned the Fairchild Street property in which the restaurant was located. The area in question was determined by the Madison City Council to be blighted, and the City's Community Development Authority sought to acquire and raze Dotty's building in order to further the redevelopment of the area by constructing a cultural arts facility. See WIS. STAT. § 66.1333.

¶ 3 The Authority initiated condemnation proceedings under WIS. STAT. § 32.05 and acquired title to Dotty's real estate. The Authority's jurisdictional offer to compensate Dotty for the loss of its "land including [257 Wis.2d 383] site improvements and fixtures actually taken" was $583,680. The acquisition of Dotty's and other property required the Authority to comply with statutory relocation assistance provisions. See WIS. STAT. § 32.19 et seq. Accordingly, the Authority retained a relocation specialist who devised a relocation plan for those displaced by its project. Dotty identified several criteria which a replacement property must meet in order to make it acceptable to Dotty as a comparable replacement for its business property. These were: (1) the property would have to be in the same vicinity as the condemned restaurant property; (2) Dotty must be able to own (not lease) the property; and (3) acquisition of the replacement property would not increase Dotty's existing level of business indebtedness.

¶ 4 The relocation specialist identified several potential replacement properties in the general area, but only one was deemed worthy of further inquiry. The cost to purchase and remodel this property would have been about $1.5 million dollars, almost $1 million more than the Authority made available to Dotty in its condemnation award and proposed relocation assistance payments. Dotty requested that the Authority pay this difference to Dotty so that it could acquire and renovate the property. In the alternative, Dotty asked the Authority to conduct another search and offer it a comparable property which it could acquire at a cost not exceeding the amount it would receive from the Authority. At about this same time, the Authority requested Dotty to vacate the condemned property so that the redevelopment project,

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which was already or soon to be underway, could proceed.

¶ 5 Asserting that the Authority had not offered "a comparable business replacement in compliance with sec. 32.05(8)," Dotty refused to vacate the property. The [257 Wis.2d 384] Authority petitioned the circuit court for a writ of assistance to oust Dotty from the property. 2 See WIS. STAT. § 32.05(8). The Authority deposited $50,000 with the clerk of circuit court with instructions to release the sum to Dotty if it purchased a "comparable replacement business ... at a purchase price of at least $633,680" within two years of Dotty either vacating the condemned premises or receiving the condemnation award, whichever occurred later. See WIS. STAT. § 32.19(4m)(a). The trial court issued a writ of assistance, concluding that the Authority had complied with the statutory relocation assistance requirements. Dotty appeals.


¶ 6 We first note that this appeal does not involve a challenge to the Authority's right of condemnation, or to the adequacy of the damages awarded Dotty for the taking of its property. Rather, Dotty here challenges only the issuance of a writ of assistance under WIS. STAT. § 32.05(8) on the grounds that the Authority did not make a comparable replacement property available to it as required by that subsection. 3

[257 Wis.2d 385] ¶ 7 The writ was issued on the Authority's motion for summary judgment, and accordingly, we review the issuance of the writ de novo, applying the same standards as the trial court. M & I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis.2d 485, 496-97, 536 N.W.2d 175 (Ct.App.1995). "[S]ummary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Id. at 497, 536 N.W.2d 175; WIS. STAT. § 802.08(2).

¶ 8 Neither party asserts the existence of a factual dispute that would preclude summary judgment. Disposition of the appeal therefore presents only a question of law, specifically one of statutory interpretation, which we must decide de novo. Minuteman, Inc. v. Alexander, 147 Wis.2d 842, 853, 434 N.W.2d 773 (1989). Our goal in interpreting a statute is to determine and give effect to the intent of the legislature. DeMars v. LaPour, 123 Wis.2d 366, 370, 366 N.W.2d 891 (1985). Where the language chosen by the legislature is clear

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and unambiguous, we arrive at the intent of the legislature by "giving the language its plain, ordinary and [257 Wis.2d 386] accepted meaning." State v. Mendoza, 96 Wis.2d 106, 114, 291 N.W.2d 478 (1980). If, however, the language of a statute is ambiguous, we must look beyond its language and examine such things as its scope, history, context, subject matter, and purpose. UFE Inc. v. LIRC, 201 Wis.2d 274, 282, 548 N.W.2d 57 (1996).

¶ 9 The relevant provisions of WIS. STAT. § 32.05(8) are as follows:

(b)... The condemnor has the right to possession when the persons who occupied the acquired property vacate, or hold over beyond the vacation date established by the condemnor, whichever is sooner, except as provided under par. (c). If the condemnor is denied the right of possession, the condemnor may, upon 48 hours' notice to the occupant, apply to the circuit court where the property is located for a writ of assistance to be put in possession. The circuit court shall grant the writ of assistance if all jurisdictional requirements have been complied with, if the award has been paid or tendered as required and if the condemnor has made a comparable replacement property available to the occupants, except as provided under par. (c).

(c) The condemnor may not require the persons who occupied the premises on the date that title vested in the condemnor to vacate until a comparable replacement property is made available. This paragraph does not apply to any person who waives his or her right to receive relocation benefits or services under s. 32.197 or who is not a displaced person, as defined under s. 32.19(2)(e), unless the acquired property is part of a program or project receiving federal financial assistance.

(Emphasis added.)

¶ 10 Dotty did not waive its right to receive relocation benefits, and the Authority does not dispute [257 Wis.2d 387] that Dotty is a "displaced person" within the meaning of the statute. 4 Dotty contends that the only "comparable replacement property" 5 identified by the Authority which met Dotty's criteria was not "made available" because the cost to purchase and remodel the property would be almost $1 million more than the amount Dotty could expect to receive from the Authority. Accordingly, Dotty claims the trial court erred in issuing the writ because a plain and unambiguous statutory precondition for issuing it had not been met. See WIS. STAT. § 32.05(8)(b) and (c). More...

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