904 N.W.2d 396
Wis. Ct. App.2017Background
- The City of Watertown sought to condemn Timothy Otterstatter’s property for an airport expansion, obtained a February 2015 appraisal valuing the property at $240,000, and initially offered $240,000.
- Otterstatter rejected the initial offer; the City increased its offer to $270,000 in December 2015 and then served a jurisdictional offer for $270,000 on March 1, 2016, providing the February 2015 appraisal as the appraisal "upon which the jurisdictional offer is based."
- The City also served a 90-day notice of intended vacation on March 1, 2016 (received March 2, 2016), stating an intended occupancy date of June 30, 2016.
- Otterstatter filed suit under Wis. Stat. § 32.05(5) on March 9, 2016, contesting the condemnation on the ground the jurisdictional offer was not "based upon" a proper appraisal; he also challenged the validity of the 90-day notice and later refused to vacate.
- The City recorded an award of damages and deposited funds April 4, 2016; Otterstatter bought replacement property April 21, 2016. The circuit court granted the City summary judgment, denied Otterstatter’s motion, and later issued a writ of assistance; Otterstatter appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the jurisdictional offer was "based upon" the City's appraisal under Wis. Stat. § 32.05(2)(b) | Otterstatter: $270,000 offer invalid because it differed from the City’s $240,000 appraisal; thus not "based upon" that appraisal | City: The February 2015 appraisal was a supporting part/fundamental ingredient of the $270,000 offer; statute does not require identical amounts and allows negotiation | Court: Offer valid—an appraisal can be a supporting basis even if the offer exceeds the appraisal; statutory text, negotiation requirement, and record support the City |
| Whether the jurisdictional offer failed the negotiation requirement | Otterstatter: There was no real negotiation; the revised offer wasn’t a negotiated product | City: Statutorily required negotiation occurred (meeting, owner rejected initial offer, City increased offer) | Court: Negotiation occurred as a matter of law; attempts and responses constituted negotiation |
| Whether the appraisal was too old to "base" the jurisdictional offer on (timeliness) | Otterstatter: February 2015 appraisal was stale for a March 2016 jurisdictional offer; a new appraisal was required | City: Statute contains no recency requirement for appraisals supporting a jurisdictional offer; owner can obtain an independent appraisal at City expense and may later contest compensation amount | Court: Schey (requiring day-of-taking appraisal) is inapplicable; timeliness is not a §32.05(2)(b) requirement and challenges to amount of compensation belong in §32.09 proceedings |
| Whether the 90-day notice to vacate was invalid because the City had not yet acquired title | Otterstatter: The condemnor definition implies title must be acquired before issuing 90-day notice; therefore notice (and writ) invalid | City: §32.05(8)(b) requires 90 days’ notice before the intended vacation date and contains no prerequisite that condemnor already hold title; recording of award, vesting of title, and writ timing are separate steps | Court: 90-day notice valid when given before vesting; statute unambiguous—no requirement that title vest before notice; writ may not issue until title vests but notice may precede it |
Key Cases Cited
- Chapman v. B.C. Ziegler and Co., 351 Wis. 2d 123 (WI Ct. App.) (standard of review for summary judgment)
- State ex rel. Kalal v. Circuit Court for Dane County, 271 Wis. 2d 633 (WI 2004) (statutory interpretation principles: plain meaning, context)
- Standard Theatres, Inc. v. DOT, 118 Wis. 2d 730 (WI 1984) (purpose of fee-shifting provision to discourage low jurisdictional offers)
- Schey Enterprises, Inc. v. State, 52 Wis. 2d 361 (WI 1971) (day-of-taking appraisal requirement applies to just compensation trial under §32.09, not to pre-takings jurisdictional offers)
- City of Janesville v. CC Midwest, Inc., 302 Wis. 2d 599 (WI 2007) (requirement that writ of assistance issue only if jurisdictional prerequisites are met)