Wis. Admin. Code Department of Administration Adm 92.01

Current through October 28, 2024

Section Adm 92.01 - Definitions

In this chapter:

(1) "Acquisition" means:

(a) A property purchased by an agency by any legal means including a negotiated sale and exercise of eminent domain; or

(b) A tenant-occupied unit where possession or use is denied to the occupant under a rehabilitation, code enforcement or other program or project being carried out with public financial assistance.

(2) "Agency" means a displacing agency, under sub. (13).

(3) "Average annual net earnings" means one half of the net earnings of a business or farm operation, before federal and state income taxes, during the 2 taxable years preceding the taxable year of the displacement, or another period an agency determines more equitable. It includes compensation paid by a business or farm operation to an owner, spouse or dependents. Owner, as used under this subsection includes a sole proprietorship, a principal partner of a partnership, and a principal stockholder of a corporation. Stock held by a spouse and dependent children shall be treated as one principal stockholder.

(4) "Average monthly income" means, for determining financial means, the annual gross income of an individual or the adults in a family, including salaries, wages, public assistance payments, tips, commissions, unemployment payments, rents, royalties, dividends, interest, profits, pensions, annuities, and other income, divided by 12.

(5) "Business" means a legal activity, other than a farm operation, regardless of the income produced, conducted:

(a) For the purchase, sale, lease or rent of personal and real property, and to manufacture, process or market a product, commodity, or other personal property;

(b) For the sale of a service to the public;

(c) By a nonprofit organization; or

(d) Solely for the purpose of moving and related expense, to assist in the purchase, sale, resale, manufacture, processing or marketing of a product, commodity, personal property or service by the erection and maintenance of an outdoor advertising display, whether or not it is located on the premises on which any of the activities listed in this paragraph are conducted.

(6) "Carve-out" means a method for computing a replacement housing, business or farm operation payment that is applied to separate the value of a portion of a property acquired, or a comparable selected.

(7) "Comparable replacement business" means a replacement business currently available to a displaced person and, when compared with the acquired business:

(a) Meets applicable federal, state or local codes;

(b) Is adequate for the needs of a business and suited for the same type of business;

(c) Is similar in major characteristics and functionally equivalent with respect to:

1. Condition, state of repair, land area and building square footage required;

2. Access to transportation necessary for the business operation, customers, utilities and public services.

(d) Is in an area free of adverse environmental conditions which may cause significant impairment of the business.

(e) Is within reasonable proximity of the acquired business if necessary to retain existing or new clientele.

(8) "Comparable replacement dwelling" means a dwelling which is currently available to the displaced person and, when compared with the dwelling being acquired:

(a) Is adequate for the person and is decent, safe and sanitary under s. Adm 92.04.

(b) Is functionally equivalent and substantially the same as the acquired dwelling, with respect to:

1. Area of habitable living space, number and size of rooms and closets, and the size and utility of any garage or outbuilding within the immediate surrounding yard;

2. Type of construction, age and state of repair;

3. In an area not less desirable than the acquired dwelling with respect to public utilities, public and commercial facilities and neighborhood conditions, including schools and municipal services, and is accessible to the person's place of employment;

(c) Is available to the person regardless of sex, race, color, disability, religion, national origin, sex or marital status of the person maintaining a household, legal sources of income, age, ancestry, sexual orientation or other applicable federal, state or local fair housing laws.

Note: The comparable must be available to the person being displaced. For example, a dwelling may not be selected as a comparable for a family with children, when the owner does not rent to families with children.

(d) Is available within the financial means of the displaced person.

(9) "Comparable replacement farm operation" means a replacement farm operation currently available to a displaced person and, when compared to the acquired farm operation:

(a) Meets applicable federal, state or local codes;

(b) Is adequate for the needs of the farmer and suited for the same type of farm operation;

(c) Is similar in major characteristics and functionally equivalent with respect to:

1. Type of farm operation, condition, and state of repair of farm buildings;

2. Soil quality, yield per acre, land area, transportation access necessary for the farm operation, utilities and public services;

(d) Is in an area free of adverse environmental conditions which may cause significant impairment of the farm operation;

(e) Is within reasonable proximity of the acquired farm operation to the extent necessary for the farm operation.

(10) "Conventional financing" means, for determining a down payment assistance payment, a loan or promissory note secured by a mortgage made by a financial institution and not insured or guaranteed by an agency of the state or federal government, or any other private insurer.

(11) "Department" means the Wisconsin department of administration.

(12) "Direct loss of property" means a compensable moving expense, in addition to an expense incurred in a move of other property, payable to a displaced business or farm operation, for direct loss of tangible personal property used in a moved or discontinued operation and which is sold or abandoned rather than moved, after attempting to sell.

(13) "Displacing agency" means a condemnor, state agency, political subdivision of the state, developer or any other person carrying out a public project that causes a person to be a displaced person. An agency vested with eminent domain power under ch. 32, Stats., acquiring real property in whole or in part for a public project, is a displacing agency, regardless of whether or not any or all of the statutory or procedural steps necessary to exercise such power have been taken, or whether the property is acquired by negotiated purchase or by eminent domain. In a project being carried out by a person or entity without eminent domain power, the condemnor, state agency or political subdivision of the state that is the principal public funding source for the project, shall ensure compliance with the provisions of this chapter.

(14)

(a) "Displaced person" means any person who moves from real property or moves personal property from real property:

1. As a direct result of a written notice of intent to deny possession or use of rented property or to purchase real property, the initiation of negotiations for, or the purchase of, such real property by a displacing agency, in whole or in part, for a public project. A person is also considered to have moved because of the purchase when the person occupies a property at the time of initiation of negotiations, but moves before acquisition, if the property is subsequently acquired;

2. As a result of denial of possession or use by the owner in anticipation of acquisition by an agency, if the removal is unrelated to a material breach of a rental agreement by the tenant. A substantial and unwarranted rent increase before acquisition by an agency shall be considered denial or use by the owner; or

3. As a result of property rehabilitation, conversion, demolition, or other related displacing activity, provided the person is:

a. A tenant occupant who will be permanently displaced and has not been offered a reasonable opportunity to occupy a suitable, decent, safe and sanitary dwelling in the same or a nearby building with actual reasonable moving cost of the move being paid by the displacing agency; or

b. A tenant occupant in a federally assisted project who is unable to continue occupancy in the displacement dwelling under terms and conditions that are reasonable as specified by the federal funding agency.

(b) "Displaced person" does not include, among others:

1. A person who moves before initiation of negotiations, unless the agency determines the person was displaced by the project;

2. A person who initially occupies the affected property after the date of its acquisition by the agency;

3. A person who has occupied the property for the express purpose of obtaining relocation benefits under this chapter;

4. A tenant-occupant of a dwelling who has been promptly notified that he or she will not be displaced by the project, provided that, if a temporary move is necessary, the temporary replacement dwelling is decent, safe and sanitary and the tenant is compensated for actual out-of-pocket expenses incurred in connection with a temporary move, including moving costs to and from the temporary dwelling, any increased rent or utility costs, and other reasonable expenses incurred;

5. A person who, after receiving a notice of relocation eligibility, is subsequently notified in writing that the person will not be displaced for the project. Such notice shall not be issued unless the person has not moved, the agency provides compensation for any expenses incurred up to the time the no displacement notice is issued and the agency withdraws any attempt to acquire the property or carry out the project affecting the property;

6. An owner-occupant who voluntarily sells a property after being informed in writing that the agency will not acquire the property by condemnation if a mutually satisfactory agreement of sale is not obtainable. In such cases, however, any tenants who occupy the property are displaced persons under this chapter;

Note: The agency may be required to obtain a waiver of relocation assistance under s. Adm 92.12.

7. An owner-occupant who voluntarily sells a property to a displacing agency not vested with eminent domain power;

8. A person who voluntarily retains the right of use and occupancy of the real property for life following its acquisition by the agency;

9. A person who is determined to be in unlawful occupancy of the property or has been evicted for cause under applicable law before initiation of negotiations for the property. Unlawful occupancy is defined under s. Adm 92.01 (42).

10. A person who is a non-occupant owner of commercial or residential property that is rented to others, except that such owner may qualify for actual and reasonable moving expenses under s. Adm 92.52.

11. For projects that do not receive federal funds and properties that do not involve an outdoor advertising sign or an outdoor advertising company tenant, a tenant who is allowed to occupy leased premises to the end of the term of the lease, or for 180 days, or for a period of time equal to one-half of the term of the lease, or for a period of time determined by the condemnor, whichever of these four alternatives is longer.

(15) "Dwelling" means a single family house, a single family unit in a duplex, multi-family or multi-purpose property, a condominium or cooperative housing unit, a sleeping room, a mobile home, or other residential unit.

(16) "Economic rent" means the rent for a property similar to and in the same area as an acquired property.

(17) "Eminent domain" means a right of government and others under s. 32.02, Stats., permitting a taking of private property for a public purpose with payment of just compensation.

(18) "Existing patronage" means the business from specific clientele or as evidenced by an annual net income during the 2 taxable years preceding the taxable year of an acquisition or during a more equitable period determined by an agency. The patronage for a nonprofit organization includes persons, clientele and community served or affected by the organization.

(19) "Farm operation" means an activity conducted mainly for the production of one or more agricultural products or commodities, or timber, for sale or home use, and customarily producing these in sufficient quantity to contribute materially to a person's support.

(20) "Financial means" means the standard for determining if a dwelling is affordable. A replacement or comparable dwelling is within a person's financial means when, as an owner, the monthly housing costs, including payments for mortgage, insurance, utilities and property taxes, or, as a tenant, monthly rent including comparable utility costs, minus any replacement housing payment available to a person under this chapter, does not exceed 30% of average monthly income. In lieu of the 30% of income standard in this subsection, a comparable dwelling may also be considered to be within a person's financial means if:

(a)Owner-occupant. The acquisition price of the comparable replacement dwelling does not exceed the sum of the payment for the acquired dwelling and the comparable replacement housing payment available under this chapter.

(b)Tenant-occupant. The monthly rent of the comparable replacement does not exceed the monthly rent at the displacement dwelling, after taking into account any rental assistance payment available under this chapter.

(21) "Initiation of negotiations" means:

(a) In acquisition projects, the date a displacing agency, or its representative, initially contacts an owner of real property, or the owner's representative and makes a written monetary offer to purchase the property; or

(b) In rehabilitation, code enforcement or related non-acquisition projects, the date a displacing agency makes its initial funding or other commitment to the project which may cause the displacement of an occupant, or the date a person receives actual or constructive notice that the person will be displaced, whichever is earlier, unless a different action or date is specified in applicable federal program regulations.

Note: Initiation of negotiations does not generally include a situation where the agency obtains only a first right of refusal to acquire that does not also include a monetary offer or establishment of a purchase price and where the agency is not otherwise committed to the acquisition of the property.

(c) "Initiation of negotiations" does not include:

1. Entering into a lease, including a lease with an option to purchase.

2. Responding to an offer to sell property and negotiating for the purchase of the property, when the offer does not involve the involuntary displacement of any occupant of the property and the agency is not implementing a project to acquire the property.

3. Obtaining a right of first refusal to acquire that does not also include a monetary offer or establishment of a purchase price and does not otherwise commit the agency to the acquisition of the property.

(22) "Mortgage" means a lien given to secure an advance for the unpaid purchase price of real property, together with a credit instrument secured thereby.

(23) "Moving expense-actual" means an actual and reasonable expense necessary to move a person and personal property including charges by public utilities for starting service, storage of property up to 12 months, and necessary temporary lodging and transportation.

(24) "Moving expense-fixed payment" means an alternate payment for moving. A payment for an occupant of a dwelling is based on a room schedule plus a dislocation allowance. A fixed payment for a business or farm operation is based on average annual net earnings and may not be less than $1,000 nor more than $20,000.

(25) "Nonprofit organization" means a corporation, partnership, individual or other public or private entity, engaged in a legal business, professional or instructional activity on a nonprofit basis and having fixtures, equipment, stock in trade or other tangible property on the premises and established as a nonprofit organization under federal or state law.

(26) "Owner" means a person who has an interest in a dwelling or real property to be acquired by a displacing agency in the form of the following:

(a) A fee title or life estate;

(b) An interest in cooperative housing including a right to occupy a dwelling;

(c) A contract purchaser of any of the estates or interests under this subsection;

(d) A mobile home on a permanent foundation, or a mobile home which is not decent, safe and sanitary, and cannot be moved without substantial damage or unreasonable cost or there are no replacement sites to where it can be moved;

(e) An interest other than under this subsection which is considered ownership by an agency or the department;

(f) Has succeeded to any of the interests under this subsection by devise, bequest, inheritance or operation of law, except the tenure of ownership, not occupancy, of a succeeding owner shall include the tenure of a preceding owner.

(27) "Owner-occupant, residential", means a person, who is the owner of a property being acquired and occupies a dwelling on the property as a primary residence.

(28) "Owner-occupant, business", means a person who is an owner of a property being acquired, and is also the owner and operator of a business or farm operation which was conducted on the property for at least one year before initiation of negotiations to purchase the property or the date of vacation when given a notice of intent to acquire, whichever is earlier.

(29) "Person" means an individual, family, partnership, corporation, association, business or farm operation, or non profit organization under this chapter. Two or more persons who are tenants of the same dwelling shall be treated as one person.

(30) "Personal property" means tangible property located on real property but not acquired by an agency.

(31) "Prepaid expense" means an item paid in advance by a seller of real property and prorated between a seller and buyer at the time of closing on a property including property tax, insurance, assessment, fuel and utilities, and others.

(32) "Primary residence" means a dwelling occupied as a customary and usual place of residence but not a vacation dwelling. It is occupied by a person for a substantial period of time before initiation of negotiations. It is evidenced by place of voter registration, address on a tax return, mailing address, rent receipt, proximity to work, school, utility and phone bill or other evidence acceptable to an agency.

(32m) "Public financial assistance" means direct funding received from a public entity. An authority which uses its own funds for a project is not receiving "public financial assistance."

(33)

(a) "Public project" means, in addition to a project being carried out directly by a public entity, an activity or program directly receiving public financial assistance including a grant, loan or contribution. Unless otherwise covered under federal relocation regulations, such assistance must be at least $25,000 in a project having total costs of less than $50,000 or at least 50% in a project having total costs of $50,000 or more, and involve one or more of the following activities:

1. Real property acquisition;

2. Housing or commercial rehabilitation or conversion;

3. Demolition within a designated redevelopment or blight removal area established by formal local government action on or after April 2, 1989; or

4. Another related public construction or improvement project receiving federal financial assistance covered under federal relocation regulation.

(b) "Public project" does not include, among others:

1. Any public guarantee or insurance;

2. Any interest reduction payment or loan to an individual in connection with the purchase and occupancy of a property by the individual.

3. Acquisition of property under tax foreclosure proceedings, provided a tenant-occupant is not displaced for a public project related to the acquisition;

4. Direct acquisition by a federal agency carrying out a federal program or project;

5. Demolition activity accomplished on a random basis if there is no planned public project for the property affected; or

6. A private project which is able to proceed as a result of governmental zoning changes, variances or related actions.

(34) "Real property" means land and improvements on and to the land, estates in land, and fixtures or other personal property directly connected with the land.

(35) "Relocation payment" means a payment under this chapter, including actual moving expense, a fixed payment in lieu of actual moving expense, purchase, rental and interest differential payment, down payment assistance, and cost incidental to a purchase of replacement property. An agency may pay more than the minimum amounts under this chapter, provided the payments are uniform.

(36) "Relocation plan" means a document prepared by an agency and submitted to and approved by the department before any property acquisition activity begins. A plan describes the relocation assistance and payments to be provided, and indicates whether displaced persons can be satisfactorily relocated.

(37) "Searching expense payment" means a payment to a displaced business or farm operation, to compensate for actual and reasonable expense in locating a replacement business or farm operation.

(38) "Selected comparable" means a comparable dwelling, business or farm operation selected by an agency from one or more comparable properties as the most comparable for computing a replacement differential payment.

(39) "Tenant" means a person who occupies real property and has not been, or could not otherwise be dispossessed, except pursuant to the procedures under chs. 704 and 799, Stats.

(40) "Tenant-occupant, residential", means a person who is the tenant of a displacement dwelling and occupies the dwelling as a primary residence.

(41) "Tenant-occupant, business", means, for the purposes of subch. VI, a person who is a tenant-owner and operator of a business or farm operation which was conducted on the property for at least one year before initiation of negotiations or the date of vacation when given a notice of displacement from the agency, whichever is earlier.

(42) "Unlawful occupancy" means occupancy by a person who has been ordered to move by a court of competent jurisdiction prior to initiation of negotiations for the acquisition of the property. At the discretion of the agency, persons who occupy property without permission of the owner may be considered to be in unlawful occupancy. Technical violations of law and unlitigated violations of the terms of a lease, such as having an unauthorized pet or withholding rent because of improper building maintenance, do not constitute unlawful occupancy.

(43) "Utility charge" means an average monthly cost for space and water heating, lighting, water and sewer, and trash removal, but not telephone service.

Wis. Admin. Code Department of Administration Adm 92.01

Cr. Register, March, 1986, No. 363, eff. 4-1-86; am. (1), (13), (20), (intro.), (21) and (24), r. and recr. (4), renum. (33) to (41) to be (34) to (41) and (43) and am. (40) and (41), cr. (33) and (42), Register, November, 1989, No. 407, eff. 12-1-89; corrections made under s. 13.93(2m) (b) 7, Stats., Register, April, 1996, No. 484; cr. (14) (b) 11., (21) (c), (32m), am. (33) (a) (intro.), Register, March, 1997, No. 495, eff. 4-1-97; correction in (8) (a), (11), (13), (14) (b) 9., 10. made under s. 13.92(4) (b) 6, 7., Stats., Register December 2011 No. 672.

Amended by, CR 21-110: am. (8) (c) Register June 2022 No. 798, eff. 7/1/2022