City of Janesville v. CC Midwest, Inc.

PATIENCE DRAKE ROGGENSACK, J.

¶ 1. 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 "[bjecause it is undisputed that none of the properties *604the 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 *605was 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 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 "corn-*606parable 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 *607plant; or the site consisted of only vacant land.7 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 *608continue 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. *609Stat. § 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 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.8 The 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).9 CC Midwest, 289 Wis. 2d 453, ¶¶ 7, 32.

¶ 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. 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 *610the 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. Standard of Review

¶ 13. We review a grant of summary judgment independently, applying the same methodology as the circuit court. AKG Real Estate, LLC v. Kosterman, 2006 WI 106, ¶ 14, 296 Wis. 2d 1, 717 N.W.2d 835 (citing O'Neill v. Reemer, 2003 WI 13, ¶ 8, 259 Wis. 2d 544, 657 N.W.2d 403); Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987).

¶ 14. In order to determine whether summary judgment is appropriate in this case, we interpret Wis. Stat. § 32.05(8)(b)-(c) and various provisions of Wis. Stat. § 32.19(2). The interpretation of a statute is a question of law that we review independently. State v. Reed, 2005 WI 53, ¶ 13, 280 Wis. 2d 68, 695 N.W.2d 315; State v. Setagord, 211 Wis. 2d 397, 405-06, 565 N.W.2d 506 (1997).

B. Relocation Assistance10

¶ 15. The relocation assistance benefits to which property occupiers may be entitled as a result of emi*611nent domain proceedings are set out in Wis. Stat. § 32.19(2), (3)11 and (4m).12 As we explain briefly below, these benefits are purely statutory and are not required in order to satisfy the constitutional mandates for just compensation to those whose property was taken for a public use under the United States Constitution or under the Wisconsin Constitution.13

*612¶ 16. It is well settled law that the Fifth Amendment of the United States Constitution14 and Article I, Section 13 of the Wisconsin Constitution15 require the government to pay just compensation when private property is taken for public use. United States v. Welch, 217 U.S. 333, 339 (1910); Sonday v. Dave Kohel Agency, Inc., 2006 WI 92, ¶ 22 n.5, 293 Wis. 2d 458, 718 N.W.2d 631. However, the United States Supreme Court has determined that consequential losses, including relocation expenses, are not part of just compensation that the government is required to pay to private property owners. United States v. Petty Motor Co., 327 U.S. 372, 377-78 (1946) (concluding that "evidence of loss of profits, damage to good will, the expense of relocation and other such consequential losses are refused in federal condemnation proceedings"). The Court explained, "it has come to be recognized that just compensation is the value of the interest taken. This is not the value to the owner for his particular purposes or to the condemnor for some special use but a so-called 'market value.1" Id. at 377. Since the "market value" to which the owner is entitled "does not fluctuate with the needs of [the] condemnor or condemnee but with [the] gen*613eral demand for the property," the Court determined that relocation expenses and other consequential losses are not considered in just compensation. Id.

¶ 17. We have recognized that "much authority exists for the proposition that the constitution does not require compensation for consequential losses." Luber v. Milwaukee County, 47 Wis. 2d 271, 277, 177 N.W.2d 380 (1970). Contrary to this general proposition, in Luber, pursuant to the 1965 version of the statutes, we determined that "under property concepts one's interest in rental income is such as to deserve compensation under the 'just compensation' provision of the Wisconsin Constitution." Id. at 279. It was "undisputed that the pendency of the condemnation was the sole cause of the appellants' rental loss." Id. Since we determined that compensation for rental loss was constitutionally required under the just compensation clause of the Wisconsin Constitution, we held that Wis. Stat. § 32.19(4) (1965), insofar as it limited compensation for the taking to 12 months of rental losses, was unconstitutional. Id. at 283.16

¶ 18. In a subsequent examination of this issue, the court of appeals concluded that Luber "does not *614constitutionally mandate unlimited recovery for all consequential damages in eminent domain actions." Hasselblad v. City of Green Bay, 145 Wis. 2d 439, 442, 427 N.W.2d 140 (Ct. App. 1988). In Hasselblad, the court of appeals determined that Wis. Stat. § 32.19(4m), setting a $50,000 limit on business replacement damages for owner-occupied businesses, was not unconstitutional because there is no constitutional right to compensation for relocation expenses. Id. at 440-41. The court recognized that Luber was a "radical departure" from the prevailing rule that condemnation provides no recovery for consequential or incidental damages. Id. at 442-43. The court also stated that there was a rational basis for distinguishing the incidental damages awarded in Luber because "[r]ental losses bear a direct relationship to fair market value that business replacement expenses do not." Id. at 444.

¶ 19. The dissent of Justice Prosser disagrees that CC Midwest's argument has no constitutional just compensation component. He relies heavily on Kimball Laundry Co. v. United States, 338 U.S. 1 (1949), for the proposition that the United States Supreme Court modified its rule of denying consequential losses as part of just compensation. Justice Prosser's dissent, ¶¶ 83-87. However, the dissent misinterprets Kimball Laundry. In Kimball Laundry, the Court explained the different effects of a taking when it is only temporary and the owner is unable to transfer its business goodwill to another location.

What, then, are the circumstances under which the Fifth Amendment requires compensation for such an *615intangible? Not, indeed, those of the usual taking of fee title to business property, but the denial of compensation in such circumstances rests on a very concrete justification: the going-concern value has not been taken. Such are all the cases, most of them decided by State courts under constitutions with provisions comparable to the Fifth Amendment, in which only the physical property has been condemned, leaving the owner free to move his business to a new location. ... It is true that there may be loss to the owner because of the difficulty of finding other premises suitably situated for the transfer of his good will, and that such loss, like the cost of moving, is denied compensation as consequential.

Kimball Laundry, 338 U.S. at 11-12.

¶ 20. Accordingly, to fall within the rule set out in Kimball Laundry, the condemnor must take over the business opportunity, at least on a temporary basis, as well as taking the real property, such that the business owner could not move his business to a new location and may he required to renew his business at a location temporarily taken if the government quits the condemned site before the expiration of the condemnee's lease term. See United States v. Westinghouse Elec. & Mfg. Co., 339 U.S. 261, 264-65 (1950) (concluding that where there is only a temporary occupancy by the condemnor, the cost of temporary removal of the owner is a compensable loss under the Fifth Amendment). Therefore, we disagree with Justice Prosser's dissent, as we have concluded that the usual rule that consequential damages are not part of constitutionally required just compensation applies here. This is so, in part,17 because there are no facts to pull CC Midwest's claim into the *616rule set out in Kimball Laundry or Westinghouse Electric. See also United States v. 50 Acres of Land, 469 U.S. 24, 33 (1984) (recognizing that absent a temporary-taking, the Fifth Amendment does not require compensation for consequential damages arising from condemnation); Cmty. Redev. Agency of L. A. v. Abrams, 543 P.2d 905, 913, 916 (Ca. 1975) (concluding that when a condemnor "takes the fee upon which a business is conducted and does not by the nature of its action wholly preclude the condemnee from transferring its going-concern or goodwill value to another location," just compensation is not due for the costs of moving the business, and also suggesting that any remedy for relocation costs lies with the legislature); Heir v. Del. River Port Auth., 218 F. Supp. 2d 627, 641-42 (D.N.J. 2002) (concluding that a Mobile Oil franchise that was lost as the result of condemnation was not a compensable taking under the Fifth Amendment).18

*617¶ 21. In summary, we agree with the court of appeals' interpretation in Hasselblad and conclude that the relocation assistance benefits provided by Wis. Stat. § 32.19(3) and (4m) do not have a direct relationship to the fair market value of a tenant's interest, and therefore, are incidental or consequential damages that are not considered in the constitutional requirement for just compensation. Consequently, CC Midwest's affirmative defenses to the City's petition for a writ of assistance present us with questions of only statutory, not constitutional, interpretation.

C. Comparable Replacement Property/Business

¶ 22. To determine whether the writ of assistance was properly issued in this case, we must interpret Wis. *618Stat. § 32.05(8)(b)-(c) in regard to "comparable replacement property" and "made available" and Wis. Stat. § 32.19(2)(c) in regard to "comparable replacement business." Statutory interpretation "begins with the language of the statute. If the meaning of the statute is plain, we ordinarily stop the inquiry." State ex rel. Kalal v. Circuit Court for Dane County, 2004 WI 58, ¶ 45, 271 Wis. 2d 633, 681 N.W.2d 110 (quoting Seider v. O'Connell, 2000 WI 76, ¶ 43, 236 Wis. 2d 211, 612 N.W.2d 659). Statutes are interpreted in the context in which they are used, "as part of a whole; in relation to the language of surrounding or closely-related statutes." Id., ¶ 46. "[A] statute is ambiguous if it is capable of being understood by reasonably well-informed persons in two or more senses." Id., ¶ 47. If a statute is ambiguous, the court may examine external sources, such as legislative history and the purpose of the statute. Id., ¶ 48.

¶ 23. Wisconsin Stat. § 32.05(8)(b)-(c) addresses writs of assistance sought subsequent to eminent domain proceedings and provides, in relevant part:

(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).
*619(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.

Under the plain language of the statute, "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 [relocation assistance] award; and (3) making available comparable replacement property to the occupants." Dotty, 257 Wis. 2d 377, ¶ 13 (quoting City of Racine v. Bassinger, 163 Wis. 2d 1029, 1035, 473 N.W.2d 526 (Ct. App. 1991)). At issue in this case are: (1) the meaning of "comparable replacement property" employed in § 32.05(8)(b)-(c); (2) the identification component of the "made available" obligation of § 32.05(8)(b)-(c); and (3) the meaning of "comparable replacement business" defined in Wis. Stat. § 32.19(2)(c).

¶ 24. "Comparable replacement property" is not defined in Wis. Stat. § 32.05(8)(b)-(c). However, we examine the language of surrounding or closely related statutes in order to interpret a statute in the context in which it is used. Kalal, 271 Wis. 2d 633, ¶ 46. The relocation assistance law, Wis. Stat. § 32.19 et seq., provides for payments to persons displaced by public projects in order that they be fairly compensated, not only for the property whose ownership is taken for a public purpose, but also for certain other financial *620consequences described in § 32.19.19 Section 32.19 is closely related to § 32.05.20 For example, § 32.05(8)(c) expressly refers to the relocation assistance law and limits the requirement to make available a comparable replacement property to a "displaced person, as defined under s. 32.19(2)(e)," who has not waived his or her right to relocation assistance.

¶ 25. There are three categories of property occupiers for whom the condemnor may be obligated to make available a "comparable replacement property" to a "displaced person" when a writ of assistance is sought following the exercise of the power of eminent domain: (1) an occupier whose dwelling must be vacated, *621Wis. Stat. § 32.19(2)(b); (2) an occupier whose business operation must be vacated, § 32.19(2)(c); and (3) an occupier whose farming operation must be vacated, § 32.19(2)(d). Since the relocation assistance law is closely related to condemnation law, we conclude that the phrase "comparable replacement property" in Wis. Stat. § 32.05(8)(b)-(c) unambiguously includes all three categories of occupiers of property set out in § 32.19(2)(b)-(d).

¶ 26. Here, the identification component for a replacement property under Wis. Stat. § 32.05(8)(b)-(c) is linked to the meaning of "comparable replacement business." This is so because in order to fulfill the statutory directive of § 32.05(8)(b)-(c) when a business replacement is identified, it must be a business property that comes within the definition of Wis. Stat. § 32.19(2) (c). Business replacement payments can be due to an occupier who is either an owner, § 32.19(4m)(a), or a tenant, § 32.19(4m)(b). Therefore, because CC Midwest is a tenant, we must determine whether a "comparable replacement business" pursuant to § 32.19(2)(c) has been "made available" to this business tenant before a writ of assistance may issue pursuant to § 32.05(8)(b)-(c).

¶ 27. While it is not necessary to examine the legislative history behind Wis. Stat. § 32.05(8)(b)-(c) because we have concluded that "comparable replacement property" is unambiguous, we agree with the court of appeals' qualification that "a person displaced by a condemnation [must] have comparable replacement property made available to the extent required by the relocation assistance law." Dotty, 257 Wis. 2d 377, ¶ 13 (quoting Bassinger, 163 Wis. 2d at 1040). The Legislative Reference Bureau (LRB) analysis of the *622original bill, 1981 S.B. 562, which created the language in § 32.05(8)(b)-(c) that requires a comparable replacement property to be made available, reveals that the statute was intended to clarify existing law and to create a new condition precedent to the issuance of a writ of assistance — not to create a new substantive right.21 Bassinger, 163 Wis. 2d at 1040. Therefore, in order to determine the substantive rights and what must be done to satisfy the conditions precedent, the parties must look to the relocation assistance statutes that defined a comparable replacement business prior to the legislature's addition of the language in § 32.05(8) that requires a condemnor to make available a comparable replacement property.22

¶ 28. We also agree with the court of appeals' analysis regarding the 1991 legislative rearrangement of the language in Wis. Stat. § 32.05(8),23 when it *623concluded that "[t]he legislative tinkering made no substantive changes to the relevant language of Wis. Stat. § 32.05(8).... If anything, the linkage between the 'made available' requirement of § 32.05(8) and the relocation assistance law is strengthened by the 1991 revision." Dotty, 257 Wis. 2d 377, ¶ 18. In the June 14, 1991 draft of 1991 A.B. 91, the language proposed for § 32.05(8)(c) stated, "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 pursuant to s. 32.19."

¶ 29. While the parties do not dispute that the relocation assistance law determines the extent to which the condemnor is required to have "made available" a comparable replacement property, they do disagree over what the law requires by way of a replacement. The City contends that according to Dotty, all that is required in order to meet its obligation to a business tenant is to provide assistance in locating properties, obtaining renovation cost estimates for properties in which the con-demnee expresses an interest, and tendering the maximum relocation assistance payments due to a tenant under circumstances where the cost of remodeling or construction would exceed the statutory máximums set out in Wis. Stat. § 32.19(4m)(b).

¶ 30. CC Midwest argues that Dotty is distinguishable because it addressed only the financial component of the condemnor's obligation to have "made available" a comparable replacement property. We agree *624with CC Midwest. In Dotty, the court of appeals did not address the identification component of the "made available" obligation of Wis. Stat. § 32.05(8)(b)-(c) by considering the definition of a comparable replacement business. CC Midwest also contends that unless a comparable replacement business is identified that it can use, apparently without modification, it has the right to remain indefinitely in possession of the Property after legal title has passed to the City. Stated otherwise, CC Midwest contends that identification has not occurred here because the properties proposed as comparable replacement properties do not meet its interpretation of the statutory definition of a comparable replacement business. Accordingly, we focus on Wis. Stat. § 32.19(2)(c) to decide whether any of the properties the City identified satisfy the statutory definition of a "comparable replacement business."

¶ 31. We begin with the plain language of Wis. Stat. § 32.19(2)(c), interpreted in the context in which it is used and in relation to closely-related statutes. Kalal, 271 Wis. 2d 633, ¶ 46. Section 32.19(2)(c) provides:

"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.

*625¶ 32. CC Midwest and the dissents interpret this definition as commanding a condemnor to satisfy the statute in a temporal way. That is, both presume that Wis. Stat. § 32.19(2) (c) requires identification of a property from which CC Midwest could operate its business without modification of the property in any way. The City interprets § 32.19(2)(c) in relation to other relocation assistance provisions such that identification of a property that after some modification can be used to carry on CC Midwest's business is sufficient to satisfy its obligation to have "made available" a comparable replacement property pursuant to Wis. Stat. § 32.05(8) (b)-(c). Modification of property is not directly addressed in § 32.19(2)(c). However, both interpretations appear reasonable. Therefore, we conclude that the definition of "comparable replacement business" is ambiguous. Kalal, 271 Wis. 2d 633, ¶ 47.

¶ 33. Wisconsin Stat. § 32.19(2)(c) sets out a list of criteria to guide the condemnor in its identification of a comparable replacement business. Many of the listed criteria are qualified in a way that shows that in order to satisfy the statute, identification of a property identical to the property that was condemned is not necessary. As examples of such qualifications, we note that a property that is "reasonably similar" to the major characteristics of the condemned property is sufficient. § 32.19(2)(c). A property that is "adequate" for the needs of the business will suffice, and a property that is "functionally equivalent" in regard to condition, state of repair, land area, building square footage, access to transportation, utilities and public service is all the statute requires. Id. The replacement property should be "within reasonable proximity" of the condemned property. Id. The other criteria of § 32.19(2)(c) assure that the type of business for which a replacement *626business is sought will be able to be conducted from the property suggested without running afoul of governmental regulations.

¶ 34. As we consider Wis. Stat. § 32.19(2)(c), we conclude that in some respects, this case is Dotty in a different dress. In Dotty, the condemnee argued that before a writ of assistance could be issued, the condem-nor was required to make available a replacement business property that met the condemnee's criteria and could be acquired without expending a sum greater than the total of its condemnation award and relocation benefits. Dotty, 257 Wis. 2d 377, ¶ 10.24 The cost to purchase and remodel the only property deemed worthy of further inquiry was "almost $1 million more than the [condemnor had] made available to [the condemnee] in its condemnation award and proposed relocation assistance payments." Id., ¶ 4. Relying on Bassinger, the court stated that the condemnor was required to have made available a comparable replacement property "to the extent required by the relocation assistance law." Id., ¶ 19 (quoting Bassinger, 163 Wis. 2d at 1040).25 The court concluded that the condemnor "made available" a *627comparable replacement property to the necessary extent by: identifying potential replacement properties; obtaining renovation cost estimates for properties in which the condemnee expressed an interest; tendering the maximum business replacement payment; and offering to reimburse the condemnee for its other statutorily authorized relocation expenses. Id., ¶ 21.

¶ 35. The court of appeals expressly rejected the condemnee's argument that implied that the con-demnee would never have to vacate the condemned property if the condemnor could not identify a replacement property acceptable to the condemnee that could be acquired for an amount not exceeding the condemnation award plus relocation benefits. Id., ¶ 26. The court stated that the condemnee's argument was "unreasonable and contrary to the legislative intent regarding the 'made available' requirement." Id. The court went on to state, "[t]he obligation of the condemning agency under [Wis. Stat.] § 32.19 is to assist in the procurement and acquisition of replacement property, not to make a displaced business financially whole regardless of the cost to the condemning agency." Id., ¶ 27.

¶ 36. The court noted that under the relocation assistance law, the legislature expressly provided an exception to the statutory payment limits if a comparable dwelling was not available within the monetary limits. Id., ¶ 28 (citing Wis. Stat. § 32.19(4)(c)). However, no such exception exists when a comparable *628replacement business is not available. Id. Therefore, the maximum financial obligation of the condemnor to a business remained capped by the statutory limits. Id. In addition, the relocation assistance statutes "plainly contemplate that some business-owners will opt not to relocate or ultimately be unsuccessful in doing so." Id., ¶ 29 (citing Wis. Stat. § 32.19(3)(b) and (c); Wis. Admin. Code §§ Comm 202.56(4) and 202.58).

¶ 37. In addition, a business occupier's right to payment in regard to a replacement business is addressed in Wis. Stat. § 32.19(4m). As CC Midwest is a tenant-occupier business, it could be entitled to a maximum of $30,000 for a replacement business. § 32.19(4m)(b). However, any such entitlement is due only if CC Midwest "actually rents or purchases a comparable replacement business" property within the time limits set out in the statute. Id. Therefore, the definition of "comparable replacement business" found in § 32.19(2)(c) applies to both the City's obligation to have "made available" a comparable replacement property pursuant to Wis. Stat. § 32.05(8)(b)-(c) and CC Midwest's opportunity for a replacement payment under § 32.19(4m)(b).

¶ 38. CC Midwest contends that none of the properties the City proposed meet the definition of a comparable replacement business set out in Wis. Stat. § 32.19(2)(c).26 If CC Midwest's statutory interpretation is correct, then under § 32.19(4m)(b), it would have no right to any payment for a replacement business if it *629were to purchase or rent one of the properties suggested by the City and later modify that property. This is so because under CC Midwest's interpretation none of the properties would meet the § 32.19(4m)(b) requirement of being a "comparable replacement business."

¶ 39. However, Wis. Stat. § 32.19(2)(c), as interpreted in Dotty, implies that a business owner may need to expend sums greater than the condemnation award plus relocation assistance payments in order to obtain a comparable replacement property, if such property is not available absent some modification. Dotty, 257 Wis. 2d 377, ¶ 27. This reasonably suggests modification of the property identified. Alternatively, as referenced above, the statutes recognize that some business owners will opt not to relocate or may go out of business. Id., ¶ 29. Such alternatives also indicate that a property occupier does not have the right to indefinitely remain in possession of property after an eminent domain acquisition simply because a replacement business is not identified that satisfies the occupier's definition of § 32.19(2)(c).

¶ 40. We conclude that the statutory language shows that relocation assistance provided under Wis. Stat. § 32.19(2)(c) does not require identification of a property that is identical to the property condemned or that, at the moment of identification, the property, without modification, can be used by the business that was relocated. See Dotty, 257 Wis. 2d 377, ¶ 21.27 Rather, it requires identification of a property that with *630modification can be used for the occupier's business. For example, the land area of a property identified may be sufficient, but the building may have been used for another purpose and may need remodeling in order for the business to carry on its activities as it has in the past.

¶ 41. That Wis. Stat. § 32.19(2)(c) does not require the identification of a property where no investment is required in order for the business to continue operating also is supported by Wis. Admin. Code § Comm 202, Relocation Assistance. For example, § Comm 202.96 addresses "Tenant Occupiers" who rent the location from which their businesses are conducted. It provides a "rental assistance" payment of up to $30,000, not only for rental assistance if the rental costs in a new location are higher than those costs were in the premises from which the business was ejected, § Comm 202.96(a), but also due to payments for modifications to the new premises if those costs are added to the rent, § Comm 202.96(b) 1, or are paid by the tenant, § Comm 202.96(b)2.

¶ 42. As the court of appeals explained in Dotty, a condemnor has no open-ended obligation to provide a replacement property that is acceptable to the business being relocated. Dotty, 257 Wis. 2d 377, ¶¶ 26-27. To conclude otherwise would cause the upper limits on *631relocation assistance payments to be meaningless. Id. Furthermore, interpreting Wis. Stat. § 32.19(c) to permit a tenant to remain in a property indefinitely, as though the lease were perpetual, conflicts with the proposition that the complete condemnation of a property terminates the lease.28 See Wis. Mall Props., LLC v. Younkers, Inc., 2006 WI 95, ¶ 27, 293 Wis. 2d 573, 717 N.W.2d 703 (concluding that "[c]omplete condemnation of a property terminates a lease attached to that property").

¶ 43. We also note that Wis. Stat. § 32.19(2)(c) is part of a statutory scheme wherein property is taken only for a public purpose. If a comparable replacement business pursuant to § 32.19(2)(c) were to require a property for which no modification was needed, some business properties condemned for public works projects never would be vacated due to the resources then available in the community. However, § 32.19(2)(c) requires a business replacement that is only "adequate," not one that is identical. Interpreting § 32.19(2) (c) otherwise, such that it would negate the opportunity to relocate a business if the resources available in a community were not sufficient to provide an identical business property, would prevent public works projects. Such an interpretation would ignore the context in which § 32.19(2) (c) occurs, contrary to our usual rules of statutory construction. Kalal, 271 Wis. 2d 633, ¶ 46. Accordingly, it is not reasonable to interpret § 32.19(2)(c) as requiring the displacing agency to identify a comparable replacement business that at the moment of identification can be used without modification.

*632¶ 44. With this framework in mind, we turn to a comparison of the condemned property with one of those identified by the City. The condemned building had eight cross-docks, four end-doors and approximately 6,000 square feet of space. (Adler Aff. Ex. A at 7-10.) The Property had ten parking spaces and approximately nine acres. (Id.) However, only 3.2 acres of the Property was utilized for the building or graded for trucking use. (Boldt Rebuttal Aff. at 1.)

¶ 45. The property proposed as a comparable replacement business at 1700 East Delavan Drive, Janes-ville, was within a couple of miles of the condemned property. (Adler Dep. at 41, Oct. 23, 2003.) It already had more than 20 side-by-side docks for truck loading and unloading, a building with 120,000 square feet of space located on 9.68 acres of property, and more than ten spaces for parking trucks. (Id. at 42.) The only characteristic it appeared to lack was cross-docks. The City suggested that the long building with the current truck docks would need to be modified to add cross-docks. (Id.) CC Midwest offered no reason why cross-docks could not be constructed, and because CC Midwest was not interested in the facility, the City did not pursue the cost of adding cross-docks.

¶ 46. It appears from the record before us that the property at 1700 East Delavan Drive is reasonably similar to the condemned property in all its major characteristics and that with the addition of cross-docks to the building, it will be functionally equivalent under Wis. Stat. § 32.19(2)(c). In addition, as a prior trucking facility, there are apparently no governmental regulations that would prevent CC Midwest's trucking operation. Therefore, we conclude that the identified property at 1700 East Delavan Drive is adequate for the *633needs of CC Midwest's "less than truck-load business," and meets the definition set out in § 32.19(2)(c).29

¶ 47. CC Midwest refused to consider this property or any of the other properties that the City identified. On October 7, 2002, Thomas Christ, speaking on behalf of CC Midwest, explained that a property would be a "suitable replacement" only if it had the following attributes: at least 10.5 acres;30 topography suitable for CC Midwest's building plans;31 access to roads; M-2 zoning; adjacent to the Union Pacific Rail;32 and within a two-mile distance from the General Motors plant.33 While the attributes that CC Midwest requested in a replacement property may be those that are best for CC Midwest's business, they are not neces*634sary to fulfill the statutory parameters of Wis. Stat. § 32.19(2)(c).

¶ 48. Similar to the condemnor in Dotty, the City identified potential replacement properties that it has concluded satisfy the statutory requirements and could be modified for CC Midwest's business. The City also has tendered the maximum business replacement payment, and offered to reimburse CC Midwest for other statutorily authorized relocation expenses.34 CC Midwest does not contest that the City tendered the maximum business replacement payment and offered reimbursement for statutorily authorized relocation expenses. As with the condemnee in Dotty, CC Midwest argues that it cannot be required to vacate the condemned property if a comparable replacement business under its interpretation of Wis. Stat. § 32.19(2)(c) is not provided. We reject this argument as unreasonable and contrary to the legislative directive. We conclude that the City has complied with its obligations here because one or more of the properties identified could, with modification, be used by CC Midwest to continue its business.

III. CONCLUSION

¶ 49. We conclude that in satisfying its statutory obligation to make available a comparable replacement property pursuant to Wis. Stat. § 32.05(8)(b)-(c), prior to being entitled to a writ of assistance, the City must proceed to identify one or more properties that meet the parameters of Wis. Stat. § 32.19(2)(c) to serve as a comparable replacement business. Because we conclude *635that the City has done so and has made no contrary concession in this regard, we reverse the decision of the court of appeals.

By the Court. — The decision of the court of appeals is reversed.

Judge John W Roethe, Circuit Court for Rock County, presided.

All subsequent references to the Wisconsin Statutes are to the 2003-04 version unless otherwise indicated.

There are relocation payments not at issue in this case that are required by Wis. Stat. § 32.19. However, monetary relief is not requested in this lawsuit. As counsel for CC Midwest stated at oral argument, if CC Midwest prevails in this lawsuit, it will seek damages in another action.

At oral argument before this court, the City explained that it had not represented to the court of appeals that it had failed to identify a statutorily sufficient comparable replacement business, but that the court of appeals had misunderstood its position. The City's brief to the court of appeals is consistent with the City's position before us. Therefore, it appears there was a misunderstanding at the court of appeals in regard to the City's position.

The properties identified included five properties in Janesville with buildings on them: 3913 Whitney Street, 2727 Venture Drive, 2535 Beloit Avenue, 401 East Conde Street, and 1700 East Delavan Drive. Because CC Midwest expressed an interest in constructing a facility, three parcels of vacant land in Janesville were also identified: a parcel next to 2535 Beloit Avenue, a parcel on Conde Street, and a parcel on Venture Drive. The City stated that the 3913 Whitney Street property was the selected comparable for CC Midwest's present business. The cost of the Whitney Street property was represented to be $840,000, with a lease rate to be determined.

The suggested relocation sites included five trucking facilities for sale in Waukesha, Sheboygan, Wausau, and Neenah, Wisconsin, and Rockford, Illinois; two areas of land available in the Beloit Industrial Park and the Gateway Business Park (Beloit); and a 15-acre site on the Union Pacific Railroad in Sharon, Wisconsin. The materials submitted to the circuit court show that the City identified a total of 20 properties during the period in which it negotiated with CC Midwest.

CC Midwest stated that the property at 3913 Whitney Street, a vacant cross-docking trucking facility which the City had identified as the selected comparable for CC Midwest's business, was too small of a site at two acres and was located on the opposite side of town. Because all of the properties the City identified required remodeling or new construction, CC Midwest rejected each one. The following list explains why some of the properties were rejected:

• 3040 West Wisconsin and 1700 East Delavan Drive, Janesville, were warehouses presently not suitable to cross-dock trucking operations.
• 2535 Beloit Avenue, Janesville, was vacant land with a manufacturing building that might become available. However, the owner advised CC Midwest the land was not for sale.
• The site at 2701 Beloit Avenue, Janesville, was vacant land and CC Midwest was advised it was not for sale.
• The trucking facility in Waukesha was in a Milwaukee suburb and priced similar to the City's value of the property from which CC Midwest had operated its business, but it was comprised of a smaller building on less than one third the size of the land.
• Trucking terminals in Sheboygan, Wausau, and Neenah, Wisconsin, and Rockford, Illinois, and the vacant land in Beloit and Sharon, Wisconsin, were all too far from Janesville.

The Janesville facilities the City deemed most comparable to CC Midwest's business needs were 3913 Whitney Street, 1700 East Delavan Drive, 2727 Venture Drive and 2535 Beloit Avenue.

Before us, the City asserts it made no such concession, and the City's brief filed with the court of appeals shows no concession.

A plurality of the court, Justice Jon E Wilcox, Justice N. Patrick Crooks and Justice Patience Drake Roggensack, join the discussion of constitutional issues set forth in ¶¶ 16-21, mak*611ing that portion of the opinion a lead opinion rather than a majority opinion. A majority of the court join the remainder of the opinion.

Wisconsin Stat. § 32.19(3)(a) provides in relevant part:

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,... not to exceed $10,000, unless compensation for such expenses is included in the payment provided under sub. (4m).

Wisconsin Stat. § 32.19(4m)(b) provides in relevant part:

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... who actually rents or purchases a comparable replacement business ... for the displaced business ... 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, not to exceed $30,000, which is necessary to lease or rent a comparable replacement business .. . for a period of 4 years. ...; or
2. If the tenant displaced person elects to purchase a comparable replacement business ..., the amount determined under subd. 1 plus expenses under par. (a)3.

The concurrence of Justice Bradley concludes that it is unnecessary to discuss why the claim of CC Midwest is not constitutionally based. Justice Bradley's concurrence, ¶ 65. However, before the court of appeals, CC Midwest argued its claim had a constitutional foundation; before us, the City briefed this issue; and as the dissent of Justice Prosser shows, *612there is a need to explain why relocation assistance benefits are a purely statutory claim. Justice Prosser's dissent.

The Takings Clause in the Fifth Amendment of the United States Constitution states, "nor shall private property be taken for public use, without just compensation." The Takings Clause is made applicable to the States by the Fourteenth Amendment. Kelo v. City of New London, 545 U.S. 469, 472 n.1 (2005) (citing Chi., Burlington & Quincy R.R. v. City of Chi., 166 U.S. 226 (1897)).

Article I, Section 13 of the Wisconsin Constitution states, "[t]he property of no person shall be taken for public use without just compensation therefor."

In a subsequent case, we expressly limited the holding in Luber to the 12-month limit for rental income losses found in Wis. Stat. § 32.19(4) (1965). Rotter v. Milwaukee County Expressway & Transp. Comm'n, 72 Wis. 2d 553, 562, 241 N.W.2d 440 (1976). In Rotter, we stated that a cause of action for all incidental damages was not created by Luber. Id. We also decided that claims for all constitutionally based damages must be presented to the condemnation commission to determine whether just compensation for the taking includes the claimed damage. Id. at 564. That is, such a claim is a monetary claim that must be addressed as part of the takings phase of condemnation when the commission is deciding the issue of just compensation. Id. The issues that CC Midwest may have *614presented to the condemnation commission are not before us on this review, and CC Midwest has made no monetary counterclaim here.

Furthermore, as we have already explained, CC Midwest did not counterclaim for just compensation in this action by the City for a writ of assistance.

Justice Prosser's dissent cites many cases that it proposes "undermine the foundations" of the rule against awarding consequential losses as part of condemnation. Justice Prosser's dissent, ¶ 87. However, in each of those cases the Supreme Court is not determining whether to award consequential damages, but rather, it is determining whether there was any "taking" of the claimed interest. See Monongahela Navigation Co. v. United States, 148 U.S. 312, 327-28 (1893) (determining that the fair market value of the property included its productiveness, which was the franchise to take tolls at the lock and dam, as that right was taken with the property itself); Griggs v. County of Allegheny, 369 U.S. 84, 88-90 (1962) (concluding that an air easement over property used by aircraft taking off and landing made the home unbearable so that the easement constituted a taking requiring just compensation); United States v. Causby, 328 U.S. 256, 261-66 (1946) (concluding an air easement was a taking); Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 575, 577-79 (1972) (concluding, in a case that did *617not involve condemnation, that many types of property interests are protected by due process); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1003-04 (1984) (concluding, in an action that did not involve condemnation, that trade secrets may be property rights that would be protected by the Takings Clause); Armstrong v. United States, 364 U.S. 40, 48 (1960) (concluding that materialmen's liens on boat hulls are compensable property interests under the Takings Clause); Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555, 601-02 (1935) (concluding that mortgages are protected by the Fifth Amendment and as such there were limitations on the bankruptcy power of Congress); Lynch v. United States, 292 U.S. 571, 579 (1934) (concluding that contracts the plaintiffs entered into with the federal government for 'War Risk Insurance" are property rights protected by the Fifth Amendment). Therefore, while all the cases cited by Justice Prosser's dissent address Fifth Amendment property interests, none set aside the general rule that consequential business loss occasioned by a condemnation is not compensable under the Fifth Amendment.

The declaration of purpose set out in Wis. Stat. § 32.19(1) provides:

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.

Wisconsin Stat. § 32.19 et seq. is the relocation assistance law, and the procedural steps for condemnation are found at Wis. Stat. §§ 32.04-32.185. While these statutes are related and sometimes overlap, they are separate and have different applications. City of Racine v. Bassinger, 163 Wis. 2d 1029, 1037 n.6, 473 N.W.2d 526 (Ct. App. 1991). In some instances, condemnations occur without involving the displacement of persons, businesses, or farm operations and the relocation assistance statutes do not apply. Id. Alternatively, the government may acquire property by means other than through condemnation and the relocation assistance statutes may apply. Id.

The Legislative Reference Bureau Analysis of 1981 S.B. 562 states, "[c]urrent law is unclear and contradictory in regard to the conditions and terms of continued occupancy by displaced persons during the period after acquisition but before displacement. This bill provides that no person may be required to move without at least 90 days' written notice from the condemnor and until a comparable replacement property is made available."

The language in Wis. Stat. § 32.05(8) requiring a condem-nor to make available a "comparable replacement property" was created by 1983 Wis. Act 27 § 877, while the definition of "comparable replacement business" in Wis. Stat. § 32.19 was created by 1979 Chapter 221 § 283e.

1991 Wis. Act 39, §§ 1030c-1030L, renumbered Wis. Stat. § 32.05(8) to § 32.05(8)(b), deleted "[i]n this subsection, 'con-demnor' has the meaning given in s. 32.185" from § 32.05(8)(b) and created § 32.05(8)(a) using the exact same language; and deleted "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 *623available" from § 32.05(8)(b) and created § 32.05(8)(c) using the same language with the addition of an exception for those who waive relocation assistance or are not displaced persons, unless the project receives federal financial assistance.

The criteria identified by the condemnee for its replacement property were: "(1) the property would have to be in the same vicinity as the condemned restaurant property; (2) Dotty [the condemnee] 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." Dotty Dumpling's Dowry, Ltd. v. Cmty. Dev. Auth. of Madison, 2002 WI App 200, ¶ 3, 257 Wis. 2d 377, 651 N.W.2d 1.

The issue in Bassinger was the meaning of the term "occupant" in Wis. Stat. § 32.05(8), in order to determine whether the condemnor was required to make available a comparable replacement property. Bassinger, 163 Wis. 2d at 1039. The court determined that the term was ambiguous and the owner of a marina business would need to meet the *627definition of displaced person in Wis. Stat. § 32.19(2)(e) in order for the condemnor to be required to make available a comparable replacement property. Id. at 1038-39. The court concluded that the owner of the marina business that rented slips, but conducted no commercial activities on the property, did not meet the definition of a displaced person. Id. at 1043.

Justice Wilcox notes that the City suggested vacant land sites as comparable replacement properties. Justice Wilcox's concurrence, ¶ 62 n.2. However, as his concurrence explains, CC Midwest voiced an interest in constructing its own, new facility. {See Adler Aff. at 10.) By identifying several parcels that had no structures on them, the City was responding to a *629possibility for CC Midwest that was suggested by its own representative, Tom Christ, in the relocation process. (Id. at 12.)

When the court of appeals addressed identification of replacement business properties, it spoke of "potential replace*630ment properties." Dotty, 257 Wis. 2d 377, ¶ 21. Dotty had contended that Wis. Admin. Code § Comm 202.92(2)(b) and (d) required the payment of the costs of either renovation or new construction for the properties identified. Id., ¶ 24 n.7. The court of appeals agreed that renovation or construction costs were a consideration in examining the Community Development Authority's statutory obligation. Id., ¶ 21. However, it limited the amount of that obligation to the statutory cap for relocation expenses. Id.

The record does not contain a lease between CC Midwest and Crown Enterprises, Inc., the owner of the real estate.

The property at 3913 Whitney Street may also have met the Wis. Stat. § 32.19(2)(c) definition of a comparable replacement business. It had cross-docks already in place, and the City's consultant said it could be used by CC Midwest. (Adler Dep. at 47-49.) CC Midwest refused to consider it because it said its trucks, at 65 feet in length, were too large to maneuver into position. (Adler Aff. Ex. H at 39-40, incorporating letter and drawing from Tom Christ.) Because the circuit court did not resolve this factual dispute, we do not address it here.

Of the approximately nine acres condemned here, CC Midwest was able to use only 3.2 acres for its building and parking areas. (See Boldt Rebuttal Aff. at 1 in support of the City's petition for writ of assistance.)

CC Midwest was a tenant of the condemned property that was owned by its parent company. However, as mentioned earlier, CC Midwest was considering construction of its own facility. (Adler Aff. Ex. A at 10.)

The condemned property had no rail spur or direct access to a rail line. (See Boldt Aff. at 2 in support of the City's petition for writ of assistance.)

CC Midwest earlier had explained that its service area covered south central Wisconsin. (See Ryan Aff. at 6.)

CC Midwest did not express interest in any of the properties, so obtaining renovation cost estimates is not an issue in this case.