City of Janesville v. CC Midwest, Inc.

JON E WILCOX, J.

¶ 50. {concurring). When the legislature acts related to condemnation, it strikes a balance. See Wis. Stat. Ch. 32 (2003-04). On one hand, there is Wisconsinites' right to property, be it in their homes or businesses. On the other hand, there is the government power of eminent domain. While eminent domain often serves a common good, Wisconsinites' right to property is fundamental to the principles upon which this country was founded. So fundamental that it has been said "the great and chief end... of men's uniting into commonwealths and putting themselves under government is the preservation of their property."1 The protection of property rights is embedded in the Bill of Rights, see U.S. Const, amend. V, and the Wisconsin Constitution, see art. I, § 13.

¶ 51. Reading the plain language enacted by the legislature, it becomes evident that it struck a balance that protected an individual's right to his or her property "until a comparable replacement property [was] made available." Wis. Stat. § 32.05(8)(c). This ensured that before the government could remove an individual from his or her property, an actual "comparable replacement property" had to be given in return. Providing a "comparable replacement property" in the business context requires the government to satisfy the criteria of Wis. Stat. § 32.19(2)(c).

*636¶ 52. The majority concludes that § 39.19(2)(c) is ambiguous. I disagree. Accordingly, I concur.

HH

¶ 53. In defining types of "comparable replacement property," the legislature provided an extensive list of criteria that dictates what properties actually constitute "comparable replacement property" in different contexts. Specifically, different criteria exist for a replacement property to constitute a "comparable dwelling," Wis. Stat. § 32.19(2)(b), "comparable replacement business," Wis. Stat. § 32.19(2)(c), or "comparable replacement farm operation," Wis. Stat. § 32.19(2)(d). As enacted, these definitions ensure that the government finds a property that satisfies certain criteria, in exchange for an individual losing his or her property.

¶ 54. Wisconsin Stat. § 32.19(2)(c) provides that:

"[c]omparable 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.

¶ 55. The plain language of the definition, and the grammatical choices the legislature made, establish that a property proposed by a government must satisfy *637a number of criteria before it constitutes a "comparable replacement business." The conjunctive list provides criteria that must be satisfied.

¶ 56. Each criterion provided in the list begins with the same word: "is." The distinct criteria are then conjoined with the word "and." Put another way, the legislature provided that a "comparable replacement business" must satisfy each of the following criteria:

(1) [I]s adequate for the needs of the business;
(2) [I]s reasonably similar in all major characteristics;
(3) [I]s functionally equivalent with respect to condition, state of repair, land area, building square footage required, access to transportation, utilities and public service;
(4) [I]s available on the market, meets all applicable federal, state or local codes required of the particular business being conducted;
(5) [I]s within reasonable proximity of the business acquired; and
(6) [I]s suited for the same type of business conducted by the acquired business at the time of acquisition.

See Wis. Stat. § 32.19(2)(c). The legislature did not use the word "or" as the conjunction at the end of the list. The legislature did not preface the criteria with any words that would indicate that a property's potential for modifications should be considered. The legislature used the word "is" to preface each criterion, not "could be."

*638¶ 57. In introducing the list, the legislature has also made clear that in assessing whether the government has satisfied each criterion on the list, the proposed "comparable replacement business" must be compared to the existing business. The legislature provided, "when compared with the business premises being acquired by the condemnor ...." Wis. Stat. § 32.19(2)(c). The focus on the comparison of the two properties stresses that whether a proposed property constitutes a "comparable replacement business" depends on the specifics of the existing business. It is not good enough for the government to merely come up with some generic "business land," and move on with the condemnation process.

¶ 58. Wisconsin Stat. § 32.19(2)(c) does not provide a draconian list of criteria. Rather, a number of the § 32.19(2) (c) criteria provide a government leeway to ensure they do not have the nearly impossible task of making available an identical property. For instance, a replacement business must merely be "adequate" for the needs of the business. All the major characteristics need be only "reasonably similar." The replacement need be only within "reasonable proximity" of the business acquired. If the property had to be identical, it seems the replacement would need to be more than adequate, actually similar in its major characteristics, and in close proximity to the acquired business. As the legislature promulgated § 32.19(2)(c), a government must satisfy six distinct and reasonable criteria.

¶ 59. Upon reviewing the language enacted by the legislature, I fail to see any ambiguity.

II

¶ 60. I agree with the majority that the 1700 East Delavan Drive property constituted a "comparable replacement property."

*639¶ 61. Some of the other properties the City proposed were not even close to satisfying the § 32.19(2)(c) criteria. For instance, five of the properties were not in south central Wisconsin. Rather, they were in communities as far away as Neenah and Wausau. Both communities are over 100 miles away from the existing business in this case. Given that a "comparable replacement business" must be "within reasonable proximity of the business acquired," these properties constitute bizarre proposals. For a "less than truckload" business that was part of an established multi-state network, with established client such as the General Motors plant in Janesville, properties that would result in hours more of driving hardly seem to constitute being within a "reasonable proximity" of the existing business.

¶ 62. Ten of the properties proposed by the City were vacant lots. Criterion three provides that the proposed property must be "functionally equivalent with respect to condition, state of repair, land area, building square footage required, access to transportation, utilities and public service." In light of this requirement, it is hard to conclude that vacant lots could constitute "comparable business property." Vacant lots do not have things like "building square footage."2

*640¶ 63. I raise the nature of some of the properties proposed by the City merely to reiterate that a government does not satisfy its § 32.19(2)(c) burden simply by proposing numerous properties.

¶ 64. For the reasons stated, I concur.

John Locke, Two Treatises of Government 184 (Cook ed., Hafner 1947) (1690).

The record indicates that at one point CC Midwest voiced an interest in constructing a new facility. This purportedly explains why vacant lots may satisfy Wis. Stat. § 32.19(2)(c). Majority op., 38 n. 26.

Wisconsin Stat. §§ 32.05(8)(b)-(c) and 32.19(2)(c) provide the criteria a government must satisfy if they seek a writ of assistance. Nevertheless, a land owner or renter may choose to accept less than they are entitled to by statute. In this case, CC Midwest considered accepting less than the statutory criteria required. Then, it changed its mind and decided vacant lots *640were not acceptable, which was the position it has had since Janesville sought the writ of assistance. Nothing in the statute suggests CC Midwest forfeited its ability to object to properties that did not meet the criteria because it considered an alternative earlier in the process.