734 N.W.2d 428 (Wis. 2007), 2004AP267, City of Janesville v. CC Midwest, Inc.

Docket Nº:2004AP267.
Citation:734 N.W.2d 428, 2007 WI 93
Opinion Judge:1 PATIENCE DRAKE ROGGENSACK, J.
Party Name:CITY OF JANESVILLE, Plaintiff-Respondent-Petitioner, v. CC MIDWEST, INC. a foreign corporation, Defendant-Appellant.
Attorney:For the plaintiff-respondent-petitioner there were briefs by Mark J. Steichen and Boardman, Suhr, Curry & Field LLP, Madison, and oral argument by Mark J. Steichen., For the defendant-appellant there were briefs by Alan Marcuvitz, Andrea H. Roschke, and Michael Best & Friedrich, LLP, Milwaukee, a...
Case Date:July 11, 2007
Court:Supreme Court of Wisconsin
 
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734 N.W.2d 428 (Wis. 2007)

2007 WI 93

CITY OF JANESVILLE, Plaintiff-Respondent-Petitioner,

v.

CC MIDWEST, INC. a foreign corporation, Defendant-Appellant.

No. 2004AP267.

Supreme Court of Wisconsin

July 11, 2007

Argued Oct. 11, 2006.

REVIEW OF A DECISION OF THE COURT OF APPEALS, 2006 WI App 21, Reported at: 289 Wis.2d 453, 289 Wis.2d 453, 710 N.W.2d 713, (Ct. App. 2006-Published), Circuit, Rock-Janesville, John W. Roethe, Judge.

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For the plaintiff-respondent-petitioner there were briefs by Mark J. Steichen and Boardman, Suhr, Curry & Field LLP, Madison, and oral argument by Mark J. Steichen.

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For the defendant-appellant there were briefs by Alan Marcuvitz, Andrea H. Roschke, and Michael Best & Friedrich, LLP, Milwaukee, and oral argument by Alan Marcuvitz.

An amicus curiae brief was filed by James S. Thiel, Cari Anne Renlund, and Paul E. Nilsen, Madison, on behalf of the Wisconsin Department of Transportation.

¶ 1 PATIENCE DRAKE ROGGENSACK, J.

This is a review of a decision of the court of appeals reversing the circuit court's judgment1 granting the City of Janesville (the City) a writ of assistance to remove the defendant, CC Midwest, Inc. (CC Midwest), from property that the City previously acquired by exercising its power of eminent domain. The circuit court concluded that there were no issues of material fact and the City had met its statutory obligation to make available to CC Midwest a comparable replacement property/business as required by Wis. Stat. § 32.05(8)(b)-(c) and Wis. Stat. § 32.19(2)(c) (2003-04).2 The circuit court also concluded that granting the City a writ of assistance did not deprive CC Midwest of any constitutional rights. The court of appeals reversed. It agreed that the question presented was one of law, but it held that "[b]ecause it is undisputed that none of the properties the City identified met [the statutory definition of comparable replacement property set out in § 32.19(2)(c)], the City was not entitled to a writ of assistance." City of Janesville v. CC Midwest, Inc., 2006 WI App 21, ¶ 32, 289 Wis.2d 453, 710 N.W.2d 713 (emphasis added). Accordingly, in a published opinion, it reversed the circuit court judgment. Id.

¶ 2 We conclude that in satisfying its statutory obligation to make available a comparable replacement property, pursuant to Wis. Stat. § 32.05(8)(b)-(c), the City must identify one or more properties that meet the parameters of Wis. Stat. § 32.19(2)(c)3 to serve as a comparable replacement business. Because we conclude that the City has done so and has made no contrary concession in this regard, 4 we reverse the decision of the court of appeals.

I. BACKGROUND

¶ 3 On February 7, 2003, the City acquired the ownership of a property at 1627 South Jackson Street in the City of Janesville, Wisconsin (the Property), through condemnation proceedings. The condemnation was part of a transportation project involving reconstruction of a street and construction of a railroad bridge, underpass, and drive. The Property, consisting of approximately nine acres, was leased and occupied by CC Midwest. Only 3.2

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acres of the Property actually were used by CC Midwest. CC Midwest is a wholly owned subsidiary of CenTra, Inc. (CenTra), and another wholly owned subsidiary of CenTra, Crown Enterprises, Inc., owned the Property that CC Midwest rented before the City acquired ownership of it.

¶ 4 CC Midwest operated a "less than truck-load business" on the Property, wherein customers sent and received freight in quantities less than a full semi-trailer load. CC Midwest's trucks picked up freight and returned to the Property where the freight was unloaded. Other trucks were later reloaded to complete full truckloads of freight. They delivered their loads to other terminals within CenTra's network, which covers 38 states. The building on the Property included 20 docks, 16 of which were arranged in a "cross-docking" configuration that allowed the trucks that were being unloaded to be directly across the terminal floor from the doors of the trucks that received the freight.

¶ 5 CC Midwest was notified of the City's plans to acquire ownership of the Property in November 2001. In October 2002, the City advised CC Midwest by letter that it would need to relocate and would receive a 90-day notice of when it had to move. The City explained that CC Midwest would be eligible for specified relocation assistance in accordance with Wisconsin's relocation assistance law. The letter also listed seven properties that CC Midwest might "wish to consider" for relocation, including four properties identified by the City as "comparable replacement businesses."5 On February 6, 2003, the City notified CC Midwest that it had until May 8, 2003, to vacate and that CC Midwest was entitled to 30 days of rent-free occupancy commencing February 15, 2003. The City also specified rent for any other period that CC Midwest occupied the premises.

¶ 6 On February 24, 2003, the City notified CC Midwest of eight additional potential relocation sites.6 In March 2003, CC Midwest informed the City that none of the identified sites was a comparable replacement business because none satisfied its interpretation of the statutory criteria. For example, CC Midwest rejected some properties because either the land or the building was too small; the buildings, in their present form, were not suitable for CC Midwest's operations; the site was too far away from the General Motors plant; or the site consisted of only vacant land.7

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The City's position was that at least three of the sites were comparable replacement businesses under its interpretation of Wis. Stat. § 32.19(2)(c).

¶ 7 On April 14, 2003, the City advised CC Midwest that it must physically vacate the premises by May 16, 2003. CC Midwest did not vacate by May 16, and the parties entered an occupancy agreement whereby CC Midwest could occupy the Property while the City sought a writ of assistance requiring CC Midwest to vacate. Under the agreement, CC Midwest surrendered a portion of the Property then owned by the City for the City's immediate construction needs. The City agreed to continue to lease the Property to CC Midwest through September 30, 2003. However, when CC Midwest had not vacated the Property by October 1, 2003, two years after the City had first notified CC Midwest that it would be required to move its business, the City filed this action.

¶ 8 The City sought a declaration that it had complied with Wis. Stat. ch. 32 and was entitled to a writ of assistance directing CC Midwest to vacate the Property. CC Midwest opposed the writ on the basis that the City had not "made available" a "comparable replacement property" as required by Wis. Stat. § 32.05(8)(b)-(c). The circuit court treated the City's motion as a motion for summary judgment. The parties filed briefs and affidavits on whether the City met its obligation to make available a comparable replacement property. In addition, CC Midwest argued that granting the writ would constitute a taking without just compensation in violation of the Fifth Amendment of the United States Constitution and Article I, Section 13 of the Wisconsin Constitution. The circuit court rejected the takings argument, concluded there were no issues of material fact, determined the City had met its obligation under § 32.05(8)(b)-(c) and issued a judgment granting the City a writ of assistance.

¶ 9 CC Midwest appealed. The court of appeals certified a question in regard to the meaning of "comparable replacement business" in Wis. Stat. § 32.19(2)(c), which we declined to accept. The court of appeals then requested a second round of briefs from the parties and held oral argument.

¶ 10 CC Midwest contended, as it had in the circuit court, that the City was not entitled to a writ of assistance because it had not "made available" a "comparable replacement property" as required under Wis. Stat. § 32.05(8)(b)-(c). CC Midwest also renewed its argument that the granting of the writ would constitute a taking of its property without just compensation. The City argued that the relocation statute

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required it to identify property that could be made comparable to a replacement business and to offer the payment identified in Wis. Stat. § 32.19(3) and (4m). It identified four Janesville facilities, but CC Midwest rejected them because each required renovation.8The court of appeals said the City conceded at oral argument that none of the identified properties met the statutory criteria for a comparable replacement business in § 32.19(2)(c).9CC Midwest, 289 Wis.2d 453, ¶ ¶ 7, 32, 710 N.W.2d 713.

¶ 11 The court of appeals then concluded that under the plain language of the statutes and the judicial construction of "made available" from Dotty Dumpling's Dowry, Ltd. v. Community Development Authority of Madison, 2002 WI App 200, 257 Wis.2d 377, 651 N.W.2d 1, "the City could not require CC Midwest to vacate the property the City had acquired without identifying a comparable replacement property meeting the definition of § 32.19(2)(c)." CC Midwest, 289 Wis.2d 453, ¶ 32, 710 N.W.2d 713. The court of appeals also noted that CC Midwest said it had vacated the property and that the building it had occupied had been torn down. Id., ¶ 32 n. 10. The court of appeals did not address CC Midwest's argument that the circuit court erred in concluding that the City had not violated CC Midwest's rights under Article I, Section 13 of the Wisconsin Constitution or the Fifth Amendment of the United States Constitution. Id., ¶ 5 n. 3.

¶ 12 The City petitioned for review, which we granted.

II. DISCUSSION

A...

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