Section 198.17. Eminent domain procedure.

 

(1)   Definitions. In this section:

(a) “Declaration" means a resolution or ordinance adopted by the directors of a district under sub. (1g) which identifies the utility which the district seeks to acquire.

(b) “Owner" means the owner of a utility, and, for purposes of the service of documents on the owner, includes all agents and representatives of the owner.

(c) “Utility" includes a portion of a public utility, including any water power and hydroelectric power plant owned and operated with the utility.

(1g)   Declaration of intention to acquire utility. A district, by resolution or ordinance, adopted by the affirmative votes of two-thirds of its directors-elect, may declare the determination of the district to acquire any existing utility, which is operated in whole or in part in the district. Upon adoption of the declaration, the clerk of the district shall serve immediately on the commission and the owner a copy of the declaration, certified by the clerk under the seal of the district.

(1m)   Voluntary sale of utility.

(a) Within 30 days after service of the declaration upon the owner, the owner may propose to sell the utility to the district upon terms and conditions to be mutually agreed upon between the owner and the directors and approved by the commission. The owner shall serve a copy of the proposal upon the district and the commission. The commission shall fix a time and place for a public hearing and consideration of the proposal and notify the owner and the district of the hearing.

(b) If terms and conditions of the sale of the utility to the district are agreed upon by the directors and the owner and approved by the commission, all of the following shall occur:

1. The commission shall announce its approval of the sale in writing.

2. The directors shall by resolution authorize and direct the written execution on the part of the district of each contract and instrument and the taking of every other action necessary to consummate the sale to the district of the utility in accordance with the terms of the agreement between the owner and the district.

(2)   Determination of compensation.

(a) If the owner has consented in any manner provided by law to the purchase of the utility by the public or any municipality and one of the following applies, the commission and the parties shall proceed to determine, in the manner provided in ss. 197.05 to 197.09 , the just compensation to be paid to the owner by the district for the utility identified in the declaration:

1. The owner fails to make and serve a proposal to sell the utility identified in the declaration in the time and manner described in sub. (1m) .

2. The owner and the directors fail to agree upon terms and conditions for the sale of the utility identified in the declaration to the district.

3. The commission fails to approve the terms of sale of the utility identified in the declaration agreed upon by the owner and the directors.

(b) Upon the determination of just compensation for the utility identified in the declaration, the commission shall certify to the district and the owner the amount of compensation to be paid for the utility identified in the declaration, and the directors shall provide for and authorize payment of that amount to the parties entitled to payment.

(3)   Action to determine necessity of taking of utility.

(a) If the owner of the utility identified in the declaration has not consented in any manner provided by law and has not become legally bound to consent to the purchase by the public or any municipality of the utility, the general counsel of the district shall, before proceedings are had under sub. (2) , commence an action to determine the necessity of the taking of the utility by the district. The action shall be brought in the name and behalf of the district in the circuit court for the county in which the principal administrative office of the district is located against the owner of the utility as defendant praying the court for an adjudication of the necessity of the taking. The complaint in the action shall be served with the summons.

(b) The defendant owner shall answer in the action commenced under par. (a) within 10 days after service of the summons and complaint on the owner and the action shall be at issue and stand ready for trial upon 10 days' notice by either party. Unless the parties waive a jury, the question as to the necessity of the taking of the utility by the district shall be as speedily as possible submitted to a jury. If the jury or the court, in case a jury is waived, finds that a necessity exists for the taking by the district of the utility, to which the owner shall not have consented, the directors shall cause speedy notice of the finding of necessity to be certified to the commission and the owner. The commission and the parties shall then proceed to the ascertainment of the just compensation to be paid by the district to the owner for the utility. The consummation of the transfer of the utility to the district and the payment of the compensation to the owner shall be in the manner provided in sub. (2) .

(4)   Municipal utility exemption. No utility owned by any municipality within the district shall be acquired by the district, except by mutual agreement pursuant to sub. (1m) , until the district has first obtained, from the commission, after notice and hearing accorded to the municipality, a certificate that public necessity and convenience require that the utility be owned and operated by the district. If the certificate is granted the consummation of the acquisition shall be in the manner provided in sub. (2) .

(5)   Acquisition of part of utility.

(a) If the directors of the district determine that the district should acquire any part of the physical property of any utility which is or may be owned and operated as an entirety, the directors shall, before adopting any resolution or ordinance declaring the determination of the district to acquire the property, apply to the commission for and obtain the commission's certificate of authority to do so. The application of the district for the certificate shall state with reasonable certainty the part of the utility proposed to be acquired and the part of the utility not proposed to be acquired. The application shall also state the facts with respect to the properties to be acquired and the considerations on which the board of directors rely to show that only the part of the utility sought by the district should be acquired by the district. A copy of the application shall be served upon the owner of the utility affected and upon any municipality, whether within or without the district, in which the utility operates or furnishes any service.

(b) The commission shall fix a time and place for hearing the application made under par. (a) and shall give 10 days' notice of the hearing to all parties interested. The commission shall conduct a public hearing and investigation concerning the matters alleged in the application and shall make and file written findings and conclusions with respect to those matters. Before approving the application and granting the certificate of authority applied for, the commission shall ascertain and find:

1. That the acquisition by the district of the part of the utility, as proposed in the application, will be of greater financial, economic and industrial advantage to the district than the acquisition of the utility as an entirety as operated.

2. That the acquisition by the district of the part of the utility, as proposed in the application, will not result in any substantial injury to public interests or impairment of public service that would not result if the utility was acquired as an entirety and continued to be operated as an entirety.

3. That the acquisition by the district of the part of the utility, as proposed in the application, will not render the part of the utility that will not be acquired incapable of continuing to render any substantial public service being rendered by the utility adequately and at reasonable rates, tolls or charges for the service.

(5m)   Alternative mode of acquiring utility. Upon the initiation of steps for the formation of a district, or later, any municipality within a district or a proposed district may, in lieu of the other procedure provided by this section, determine, as provided by s. 197.02 , to acquire any utility operating within the municipality under the terms of an indeterminate permit, as defined in s. 196.01 , on behalf of and for the benefit of the district, subject to the conditions and by the procedure set forth and described in ch. 197 . Any 2 or more municipalities within a district or proposed district may, in the same manner, determine to jointly acquire utilities operating within the municipalities, on behalf of and for the benefit of the district. The municipalities and districts may enter into contracts for the transfer and conveyance of the utilities to the districts immediately upon the acquisition of the utilities by the municipalities, and for the simultaneous payment of the purchase price for the utilities by the districts. The municipalities and districts may join in any conveyances, and do all such acts as are necessary to execute the contracts; subject to the provisions of this chapter governing the powers of districts to enter into transactions, and incur indebtedness, generally.

(6)   Technicalities. No error or omission of a technical nature not affecting a substantial right shall be held to invalidate or impair any proceeding under this section or affect the legal result thereof.

(7)   Commission's expenses. The necessary expenses of the commission incurred by it in performing, at the instance of the district, any duty imposed by this section shall be itemized and charged by the commission to the district and shall be audited and paid as other charges against the district are audited and paid.

(8)   Municipal loans to districts. Any municipality situated within the boundaries of a district may provide for a loan to the district to pay the preliminary organization and administration expenses of the district, on the terms that the governing bodies of the municipality and the district agree upon. The lending municipality shall have the right, at its option, to receive bonds or other obligations of the borrowing district of any issue, providing for the payment of an amount of principal equal to that of the loan authorized under this subsection, in place of the obligations created by the loan. The terms of a loan under this subsection shall in every case provide that the municipality making the loan shall receive interest from the date of the loan at not less than the rate of interest provided for in the first bonds or other securities issued by the district, to become due at the date of issue of the securities, or at some specified date prior to or not more than one year after the date of issue, subject to the limitation of total indebtedness of the district contained in s. 198.14 (9) .

1979 c. 89 , 177 ; 1991 a. 316 ; 1997 a. 254 ; 1999 a. 32 .