§ 308-33 — Claims in Condemnation

308-33. Claims in Condemnation.

1. JURISDICTION. The department of city development shall have jurisdiction over all claims presented to the city for damages because of the taking or using of private property by the city for public purposes. The department of city development shall establish such forms as are necessary to administer the provisions of this section, and shall be authorized to distribute such forms to such departments, boards, commissions or persons. The department of city development shall consider all claims arising from condemnation proceedings instituted under subch. II, ch. 32, Wis. Stats., or under any other law under which the city is authorized to condemn, or arising by reason of negotiations under threat of condemnation under any such law. The department of city development may establish rules not inconsistent with this section to govern procedure. 2. COMPENSABLE ITEMS, ETC. For the purposes of this subsection, the definitions set forth shall apply, and compensable items for damage shall include those set forth herein under sub. 2: a. Definitions. a-1. In this section a "person" means: a-1-a. Any individual, partnership, corporation or association which owns a business concern; or a-1-b. Any owner, part owner, tenant or sharecropper operating a farm; or a-1-c. An individual who is the head of a family; or a-1-d. An individual not a member of a family. a-2. "Family" means 2 or more individuals living together in the same dwelling unit who are related to each other by blood, marriage, adoption or legal guardianship. a-3. "Displaced person" means any person who moves from real property on or after July 1, 1970 as a result of the acquisition or reasonable expectation of acquisition of such real property, in whole or in part, which is subsequently acquired, in whole or in part, for public purposes, as the result of the acquisition for public purposes of other real property on which such person conducts a business or farm operation. a-4. "Business" means any corporation, partnership, individual, other private entity, including a nonprofit organization, engaged in some type of business, professional, or institutional activity, necessitating fixtures, equipment, stock in trade or other tangible property for carrying on the business, profession or institution. a-5. "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. a-6. "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 of rooms, area of living space, type of construction, age, state of repair, 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 city and be decent, safe and sanitary. b. Moving Expenses; Actual. The displaced person shall be compensated for his actual and reasonable expenses in moving himself, his family, his business, or his farm operation, including personal property. Such relocation payments are limited only to new locations within 50 miles of the original site and within the state. c. Moving Expenses; Optional Fixed Payments. c-1. Dwellings. Any displaced person who moves from a dwelling and who elects to accept the payments authorized by this subdivision in lieu of the payments authorized in par. b may receive a moving expense allowance determined according to a schedule established by the department of city development not to exceed $200 and dislocation allowance of $100, such schedule to be approved by the common council. c-2. Business and farm operations. Any displaced person who moves or discontinues his business or farm operation and who elects to accept payment authorized under this subdivision in lieu of the payment authorized under par. b may receive a fixed payment in an amount equal to the average net earnings of the business or farm operation, or $5,000, whichever is the lesser. In the case of a business, no payment shall be made under this subsection unless the city is satisfied that the business: c-2-a. Is not able to be relocated without a substantial loss of its existing patronage; and c-2-b. Single commercial enterprise. It is not part of a commercial enterprise having at least one other establishment, not being acquired by the city which is engaged in the same or a similar business. c-2-c. For the purpose of this subdivision, the term "average annual net earnings" means 1/2 of any net earnings of the business of farm operation, before payment of federal, state and local income taxes, during the 2 taxable years immediately preceding the taxable year in which such business or farm operation moves from the real property acquired for such project. "Average annual net earnings" includes any compensation paid by the business or farm operation to the owner, his spouse or his dependents during such 2-year period. To be eligible for the payment authorized by this subdivision, the business or farm operation shall make its state and federal income tax returns available and its financial statements and accounting records available for audit to determine the payment authorized by this subsection. d. Replacement Housing. In addition to amounts otherwise authorized the city shall make a payment to the owner of real property acquired for a project which is improved by a single, 2-family, or 3-family dwelling actually owned and occupied by the owner for not less than one year prior to the initiation of the attempt to purchase such property. Such payment, not to exceed $5,000, shall be the amount which, when added to the acquisition payment, equals the average price required for a comparable dwelling as determined by the department of city development. In the determination of such amount there shall be considered a comparable dwelling, adequate to accommodate the displaced owner, reasonably accessible to public services and places of employment, and available on the private market. Such payment shall be made only to a displaced owner who purchases and occupies a decent, safe and sanitary dwelling within one year subsequent to the date on which he moves from the dwelling acquired for the project. In addition to amounts otherwise authorized in this section, the city shall make a payment to any individual or family displaced from any dwelling not eligible to receive a payment under par. b, which dwelling was actually and lawfully occupied by such individual or family for not less than 90 days prior to the initiation of the attempt to purchase such property. Such payment, not to exceed $1,500, shall be the amount which is necessary to enable such person to lease or rent for a period not to exceed 2 years, or to make the down payment on the purchase of a comparable dwelling and adequate to accommodate such individual or family in areas not generally less desirable in regard to public utilities, public and commercial facilities and places of employment. e. Expenses Incidental to Transfer of Property. In addition to amounts otherwise authorized herein, the city shall reimburse the owner of real property acquired for a project for all reasonable and necessary expenses incurred for: e-1. Recording fees, transfer taxes and similar expenses incidental to conveying such property. e-2. 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 on the date the plan or improvement of such project is adopted by the city under subch. II, ch. 32, Wis. Stats. e-3. The pro rata portion of real property taxes paid which are allocable to a period subsequent to the date of vesting of title in the city or the effective date of possession of such real property by the city, whichever is earlier. e-4. 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 right of access. e-5. Net rental losses resulting from vacancies during the year preceding the taking of the property, provided that such loss is limited to the amount that exceeds the average annual rental losses caused by vacancies during the first 4 years of the 5-year period immediately preceding the taking; and such rental loss was caused by the proposed public land acquisition. e-6. Expenses incurred for plans and specifications specifically designed for the property taken and which are no value elsewhere because of the taking. f. Refinancing Costs. All expenses incurred by the owner to finance the purchase of another property substantially similar to the property taken provided that: f-1. At the time of the taking the land condemned was subject to a bona fide mortgage or was held under a vendee's interest in a bona fide land contract; and f-2. Such mortgage or land contract has been executed in good faith prior to the date of the adoption of the plan of improvement adopted by the city under subch. II, ch. 32, Wis. Stats. Such expenses shall include: f-2-a. Reasonable fees, commissions, discounts, surveying costs and title evidence costs necessary to refinance the balance of the debt at the time of taking it actually incurred. f-2-b. Increased interest costs above that provided in the former financing. The computation of the increased interest costs shall be based upon and limited to: f-2-b-i. A principal amount of indebtedness not to exceed the unpaid debt at the date of taking. f-2-b-ii. A term not to exceed the remaining term of the original mortgage or land contract at the date of taking. f-2-b-iii. An interest rate not to exceed the prevailing rate charged by mortgage lending institutions doing business in the vicinity. f-2-b-iv. The present worth of the future payments of increased interest computed at the same rate of interest as in subd. 2-b-iii. g. Damages Not Included. Nothing herein shall be construed as creating in any condemnation proceedings brought under the provisions of subch. II, ch. 32, Wis. Stats., any element of damages. h. Records. The department of city development shall maintain records for each project requiring a relocation payment plan. The records shall contain such information as is necessary to carry out the provisions herein; and such records shall be preserved for a period of not less than 3 years after the conclusion of the project to which the records pertain. i. Costs. i-1. The costs of relocation payments and services shall be computed and paid by the city and included as part of the total project cost. i-2. If there is a project cost sharing agreement between the city and another unit or level of government, the costs of relocation payments and services shall be shared in the same proportion as other project costs, unless otherwise provided. This direct proportion formula may be changed to take advantage of federal relocation subsidies. 3. FILING OF CLAIM FORMS. All claims must be filed on forms prepared by the department of city development, and the department of city development shall not consider any claim filed more than 2 years after the date of taking of the property for public use. For the purpose of applying this section, the "date of taking" means the date at which legal possession was transferred to the city by the terms of a negotiated sale, or the date fixed by the board of assessment as the date that title passed to the city under the provisions of subch. II, ch. 32, Wis. Stats., or the date under which such property is transferred to the city by operation of law under any other law used by the city in such condemnation. If such claim has been proved to the satisfaction of the department of city development to be a bona fide claim, and that it accurately reflects the costs incurred by those persons entitled to make such claim and that the same is compensable under this section, the department of city development shall authorize a check to be drawn directly out of the project funds for the project involved without the intervention of a common council resolution for payment. The department of city development shall keep a written report of the receipt of each claim and the disposition thereof, and such records shall be deemed to be public records. 4. DEPARTMENTAL COOPERATION. The department of city development is authorized to call upon any employe, officer, board or commission of the city for aid and assistance in carrying out of its duties and functions and to make such investigations as are necessary in the furtherance of its duties and responsibilities. 5. APPEALS. Any person making a claim as provided by this section who shall feel aggrieved by reason of the fact that such claim is disallowed, or by reason of the amount thereof allowed or disallowed, may request the department of city development to refer such claim to the common council, and upon receipt thereof the common council shall refer such claim to one of its standing committees for hearing and recommendation. The city clerk shall cause a notice to be sent prior to such hearing to such claimants, stating the time and place of such hearing. Thereupon, after receiving the recommendation of its committee, the common council may by resolution take such further action as is deemed necessary by it. The decision of the common council shall be final, and if the common council shall authorize payment, the department of city development shall authorize a check to be drawn payable to the claimant directly out of project funds without the intervention of a common council resolution. If the common council shall deny the claim, the department of city development shall not thereafter consider the same claim. 6. AUTHORITY. This section shall be effective to vest authority in the department of city development to receive, adjudicate and pay condemnation claims to all persons displaced on or after July 1, 1970, wherever title to the property involved vested in the city. 7. RELOCATION PLAN TO BE FILED. Whenever proceedings are instituted under subch. II, ch. 32, Wis. Stats., the provisions herein shall be applicable. a. The city shall not proceed with any property acquisition activities or any project which may involve acquisition of property and displacement of persons, business concerns, or farm operations until the department of city development has filed in writing a relocation plan and relocation assistance service plan and has both such plans approved by the common council. b. The relocation assistance service plan shall contain evidence that reasonable and appropriate steps have been taken to: b-1. Determine the cost of any relocation payments and services or the methods that are going to be used to determine such costs. b-2. Assist owners of displaced business concerns and farm operations in obtaining and becoming established in suitable business locations or replacement farms. b-3. Assist displaced owners or renters in the location of comparable dwellings. b-4. Supply information concerning programs of federal, state and local governments which offer assistance to displaced persons and business concerns. b-5. Assist in minimizing hardships to displaced persons in adjusting to relocation. b-6. Secure, to the greatest extent practicable, the coordination of relocation activities with other project activities and other planned or proposed governmental actions in the community or nearby areas which may effect the implementation of the relocation program. b-7. Determine the approximate number of persons, farms, or businesses that will be displaced and the availability of decent, safe and sanitary replacement housing. b-8. Assure that, within a reasonable time prior to displacement, there will be available, to the extent that may reasonably be accomplished, housing meeting the standards as provided in sub. 2-a-6. The housing, so far as practicable, shall be in areas not generally less desirable in regard to public utilities, public and commercial facilities and at rents or prices within the financial means of the families and individuals displaced and equal in number to the number of such displaced families or individuals and reasonably accessible to their places of employment.