69 Op. Att'y Gen. 263 | Wis. Att'y Gen. | 1980
Lowell B. JACKSON, Secretary Department of Transportation
*264You have asked for my opinion on this question:
What is sufficient occupancy of a business operation to make an owner eligible for a business replacement payment under [the Wisconsin Relocation Act] s.
32.19 (4)(a)(intro.), Stats. [as affected by chs. 221 and 358, Laws of 1979]?
Section
In addition to amounts otherwise authorized by this chapter, the condemnor shall make a payment, not to exceed $50,000 to any owner displaced person who has owned and occupied the business operation, or owned the farm operation, for not less than one year prior to the initiation of negotiations for the acquisition of the real property on which the business or farm operation lies, and who actually purchases a comparable replacement business or farm operation for the acquired property within 2 years after the date the person vacates the acquired property or receives payment from the condemnor, whichever is later.
The business replacement payments under sec.
Several terms used in subsec. (4m)(a)(intro.) are specifically defined for purposes of sec.
"Displaced person" means any person who moves from real property or who moves his personal property from real property . . . as a result of the acquisition of such real property, in whole or in part or subsequent to the issuance of a jurisdictional offer under this chapter, for public purposes or, as the result of the acquisition for public purposes of other real property on which such person conducts a business or farm operation . . . .
Sec.
*265"Business" means any lawful activity, excepting a farm operation, conducted primarily:
1. For the purchase, sale, lease or rental of personal and real property. . . .
Sec.
"Owner displaced person" means a displaced person who owned the real property being acquired and also owned the business or farm operation conducted on the real property being acquired.
Section
The circumstances in which this law might apply are many and varied. The hypothetical examples you have cited to illustrate your inquiry involve situations in which tenants have used real estate for business operations and the landlords have not had exclusive possession of the premises. Restating your question in light of those examples, is an absentee landlord eligible for business relocation payments under sec.
The term "occupied" as used in sec.
As noted above, the preconditions for eligibility for business relocation payments under sec.
If the word "occupied" in subsec. (4m)(a) is not construed to mean something more than mere ownership and maintenance of rental property, then that term is surplusage. Statutes must be interpreted so that no word is rendered surplusage and every word is given effect. Donaldson v. State,
The legislative history of the amendment to sec.
There is an apparent inconsistency between existing law and these changes because these sections [283e, 283m and 283s, 1979 Assembly Bill 1180] use the word "occupied" instead of "operated." This would prohibit absentee owners from being eligible for replacement business and farm assistance under the revised definition. This treatment is inconsistent with other sections that give absentee owners the benefits of a business.
Assembly Journal, 1979 Session, April 30, 1980, at 3440-41.
The Legislature failed to override the governor's partial veto. But, the "owner-occupant" language reappeared in the June, 1980, Special Session Assembly Bill 9, introduced on June 3, 1980. The bill's author requested a bill draft to "reverse partial veto of `and occupied' for business [but] . . . leave farms as is." (Drafting file on ch.
In accord with this result is the holding in Redevelop. Author.of Allegheny Cty. v. Stepanik, 25 Pa. Commw. Ct. 180,
It is clear that an owner who conducts a business primarily for the lease or rental of his real property is not an "occupant" of such property. "Occupant" is defined as "one who has the actual use, possession or control of a thing." Black's Law Dictionary 1230 (4th ed. rev. 1968). (Emphasis added.) "Occupancy", with respect to realty, is defined variously as actual possession or the "act of taking and holding possession." Id. 1229. (Emphasis added.) Therefore, "occupancy" requires more than the mere right to possess or control property — the right to possess *268 or control must actually be exercised. Thus, while an owner who conducts a business primarily for the lease or rental of his real property may have the right to possess or control the leased premises, he does not have the actual possession or control to be an owner-occupant.
Further, the Pennsylvania Supreme Court in affirming the lower appellate court's decision, observed:
The Legislature's careful limitation of eligible recipients to "person [s] . . . displaced from [their] place of businesses" reveals its intent to deny special dislocation damages to landlords such as appellant not physically occupying the premises condemned. Neither appellant nor her business physically occupied the premises. Hence, neither she nor her business was displaced from the premises in the common, everyday sense of those terms. . . .
Redevelopment Authority, Etc. v. Stepanik,
As indicated in one of your illustrative examples, it is highly likely that some cases will involve property owners who use a portion of their premises for business purposes, for example, a bar or restaurant, and lease the remainder to tenants. In those cases, those property owners may be entitled to business replacement payment for that portion of the premises which they occupied for their own businesses but may not receive replacement payments for the leased portions. See Redevelopment Auth. ofLuzerne Cty. v. Legosh, 39 Pa. Commw. Ct. 90,
The Wisconsin Supreme Court has recognized that the Legislature has the power to impose conditions and limitations on relocation assistance as long as those limitations do not impair a condemnee's constitutional right to just compensation for the property actually taken for public use. Luber v. MilwaukeeCounty,
Accordingly, it is my opinion that owners of rental property who do not physically occupy the real property taken for public use are not eligible for business replacement payments under sec.
BCL:DF