City of Racine v. Bassinger
| Decision Date | 10 July 1991 |
| Docket Number | No. 90-2763,90-2763 |
| Citation | 163 Wis.2d 1029,473 N.W.2d 526 |
| Parties | CITY OF RACINE, a municipal corporation, Petitioner-Respondent, v. Gerald BASSINGER and Judith Bassinger, Respondents-Appellants. d |
| Court | Wisconsin Court of Appeals |
Debra A. Slater of Weiss, Berzowski, Brady & Donahue, Milwaukee, for respondents-appellants.
Daniel P. Wright, Deputy City Atty., for petitioner-respondent.
Before NETTESHEIM, P.J., and BROWN and SCOTT, JJ.
In this eminent domain case, Gerald and Judith Bassinger appeal from a judgment 1 granting to the City of Racine a writ of assistance. The Bassingers contend that the trial court erred in issuing the writ because the city failed to meet certain jurisdictional prerequisites and because the statute unambiguously entitles them to comparable replacement property for their marina. We disagree and affirm the trial court.
On August 15, 1990, the city filed a petition for a writ of assistance pursuant to sec. 32.05(8), Stats., to gain possession of property once owned by the Bassingers. The petition alleged that although the Bassingers deeded the property to the city in December 1989, they refused to vacate the site.
The facts leading up to the application for the writ must be recited in some detail. In August 1985, the city's common council authorized an agreement between the city and the Wisconsin Department of Transportation (DOT) to replace a bridge. Nearly three years later, in May 1988, the council approved a relocation order indicating that the Bassinger property would be needed for the bridge project. The Bassingers operated two businesses on the property--a construction business and a marina business.
The city conducted an investigation to determine whether it was required to prepare and file a relocation plan with the Department of Industry, Labor & Human Relations (DILHR). See sec. 32.25(1), Stats. Determining that the construction yard was not in use and that the marina was a rental business, the city concluded that neither business constituted a "displaced business" and that no relocation plan was thus necessary.
In January 1989, the Bassingers were given pamphlets describing their rights under the condemnation law provisions of ch. 32, Stats. They were given no pamphlets describing their rights under the relocation assistance law provisions of that chapter, however. Two months later, the city gave the Bassingers an appraisal of the property, a written offer to purchase, and additional pamphlets regarding their rights under the eminent domain provisions of ch. 32. As before, the city provided the Bassingers with no information regarding relocation assistance.
DOT viewed the Bassingers' property in July 1989. This time it was determined that the construction business portion of it was an owner-occupied business entitled to relocation assistance. The city thus had to prepare a relocation plan for the construction business, a plan subject to DILHR approval. DOT agreed with the city's earlier conclusion that the marina was a rental property and not an owner-occupied business entitled to relocation assistance.
Meanwhile, the parties were negotiating the transfer of the property from the Bassingers to the city. The Bassingers advised DOT by letter that they would accept the city's offer to purchase. The letter also stated that they were reserving any rights they had under ch. 32, Stats., and specifically their right to appeal the condemnation award. After a reappraisal of the property, the parties closed the sale of the property on December 22, 1989. 2
On January 18, 1990, the city submitted the relocation plan to DOT and asked that the plan be forwarded to DILHR. DILHR responded by letter dated March 2, 1990, stating:
Wisconsin Statutes, Section 32.25(1), requires that a public agency file and obtain approval of a relocation plan before property acquisition activities are begun. Since acquisition activities have occurred on this project, your plan cannot be approved. However, review of the plan indicates substantive compliance with the intent of the relocation law, and you may proceed with activities. [Emphasis in original.]
On March 16, 1990, DILHR gave the city its written authorization for the relocation plan and on March 21 the city began to implement the plan. At that time, the city wrote to the Bassingers to explain their relocation benefits and forwarded to them a pamphlet on the subject. By letter dated March 22, 1990, the city ordered the Bassingers to vacate the property. They refused. They claimed they could not be required to vacate because the city had not complied with all of the jurisdictional prerequisites and had failed to make available to them comparable replacement property for the marina. The city then sought a writ of assistance from the circuit court. The writ was issued on November 12, 1990. The Bassingers appeal. 3
Resolution of both appellate issues--whether the city complied with all jurisdictional prerequisites and whether the city must make available a comparable replacement property--requires that we construe sec. 32.05(8), Stats. Statutory construction is a question of law which we review without deference to the trial court. Town of Sheboygan v. City of Sheboygan, 150 Wis.2d 210, 212, 441 N.W.2d 752, 753 (Ct.App.1989).
Section 32.05(8), Stats., governing writs of assistance in eminent domain actions, provides in part:
The condemnor has the right to possession when the persons who occupied the acquired property ... hold over beyond the vacation date established by the condemnor ... except that the condemnor may not require the persons who occupied the premises on the date title vested in the condemnor to vacate until a comparable replacement property is made available. 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. [Emphasis added.]
Thus, there are three conditions precedent to the issuance of a writ of assistance: (1) compliance with all jurisdictional requirements; (2) payment or tender of the award; and (3) making available comparable replacement property to the occupants. Id. The Bassingers contend that the first and third conditions were not met.
We first address whether the city satisfied all the jurisdictional requirements. The Bassingers contend the city did not because it failed to comply with three procedural steps: (1) a relocation plan was not filed and approved by DILHR under sec. 32.25(1), Stats., before procedures were begun to acquire the property; (2) although during the negotiation phase the city provided information describing the eminent domain provisions of ch. 32, Stats., it did not provide pamphlets describing the relocation assistance provisions until March 21, 1990; and (3) the city did not comply with Wis.Adm.Code sec. ILHR 202.06(2) which requires that certain written notices be provided at the time of initial contact to obtain information necessary for preparation of a relocation plan. As the trial court noted, a threshold question is whether these procedural steps are, in fact, jurisdictional requirements. 4 We conclude they are not.
The trial court correctly stated that some of the procedural steps in ch. 32, Stats., are recognized as constituting such a valuable right of the property owner that they are deemed by the statute itself or by case law to be jurisdictional in nature. The court also correctly observed that not all procedural steps associated with the condemnation proceedings are considered jurisdictional requirements. See Herro v. Natural Resources Bd., 53 Wis.2d 157, 176, 192 N.W.2d 104, 114 (1971). The trial court then noted:
The procedural steps which [in other cases 5] have been found to be jurisdictional in condemnation proceedings all have two significant features in common. The first is that they are contained within the particular statute which sets forth the condemnation procedure, that is, the things which must be done to have and to exercise the power to acquire property by eminent domain in each particular case. The second is that the statute expressly or impliedly denies the power of the condemnor to act unless the particular step is taken, and no other statutory remedy is provided for a failure to perform the particular step. The only remedy which exists is to challenge the condemnation itself under Sec. 32.05(5) or 32.06(5), Wis.Stats. If the property owner prevails, the result is a voiding of the acquisition of the property. [Emphasis added.]
We agree with the trial court's conclusion that none of the three procedural steps the Bassingers claim are jurisdictional shares either of these characteristics. As to the first characteristic--that the procedural steps must be contained in the governing statute--none of the three procedural steps is contained in the condemnation statutes, secs. 32.04 through 32.185, Stats. Rather, they are contained in or authorized by the relocation assistance statutes, secs. 32.19 through 32.27, Stats. 6
The statutes governing condemnation action procedures are in derogation of the common law and therefore are to be strictly construed. Herro, 53 Wis.2d at 171, 192 N.W.2d at 111. Accordingly, strict adherence to the statute is required. Likewise, engrafting onto the statute things it does not require is forbidden. We agree with the trial court that the procedural steps for which the Bassingers argue are neither a part of, nor prescribed by, sec. 32.05, Stats.
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