Hoffer Properties, LLC v. State of Wisconsin , 366 Wis. 2d 372 ( 2016 )

2016 WI 5SUPREME COURT OF WISCONSIN
CASE NO.: 2012AP2520
COMPLETE TITLE: Hoffer Properties, LLC,
Plaintiff-Appellant-Petitioner,
v.
State of Wisconsin, Department of
Transportation,
Defendant-Respondent.
REVIEW OF A DECISION OF THE COURT OF APPEALS
(Reported at 354 Wis. 2d 621, 848 N.W.2d 903)
(Ct. App. 2014 – Unpublished)
OPINION FILED: February 4, 2016
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 8, 2015
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Jefferson
JUDGE: William F. Hue
JUSTICES:
CONCURRED: ABRAHAMSON, A.W. BRADLEY, J.J., concur. (Opinion
Filed)
DISSENTED: PROSSER, J., dissents. (Opinion Filed)
NOT PARTICIPATING: R.G. BRADLEY, J., did not participate.
ATTORNEYS:
For the plaintiff-appellant-petitioner, there were briefs
by Benjamin Southwick, Richland Center and oral argument by
Benjamin Southwick.
For the defendant-respondent, the cause was argued by
Abigail C.S. Potts, Assistant Attorney General, with whom on the
brief was Brad D. Schimel, Attorney General.
There was an amicus curiae brief by Erik Samuel Olsen,
Joseph J. Rolling, Andrew Weininger and Eminent Domain Services,
LLC, Madison, on behalf of Eminent Domain Services, LLC.
2
2016 WI 5NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2012AP2520
(L.C. No. 2009CV499)
STATE OF WISCONSIN : IN SUPREME COURT
Hoffer Properties, LLC,
Plaintiff-Appellant-Petitioner, FILED
v. FEB 4, 2016
State of Wisconsin, Department of Diane M. Fremgen
Transportation, Clerk of Supreme Court
Defendant-Respondent.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 MICHAEL J. GABLEMAN, J. This is a review of an
unpublished decision of the court of appeals affirming a grant
of partial summary judgment to the Department of Transportation
(DOT).1 Pursuant to Wis. Stat. § 84.25 (2007-08),2 DOT eliminated
Hoffer Properties, LLC's (Hoffer's) direct driveway connections
to State Trunk Highway 19 (STH 19), a controlled-access highway.
DOT also separately exercised its power of eminent domain to
1
Hoffer Props., LLC v. DOT, No. 2012AP2520, unpublished
slip op. (Wis. Ct. App. May 1, 2014).
2
All subsequent references to the Wisconsin Statutes are to
the 2007-08 version unless otherwise indicated.
No.2012AP2520
acquire .72 acre of Hoffer's land in order to extend Frohling
Lane westward so as to connect Hoffer's property to the highway.
Hoffer received $90,000 in compensation for the .72 acre taken
to construct the Frohling Lane extension. Hoffer is challenging
the amount of compensation awarded.
¶2 Hoffer does not claim that the $90,000 was inadequate
compensation for the .72 acre itself. Hoffer concedes that DOT
properly designated STH 19 as a controlled-access highway.3
Additionally, Hoffer agrees that the designation of a highway as
"controlled-access" is a valid exercise of the police power and
further agrees that such exercises are not compensable under the
eminent domain statutes.4 Hoffer argues, however, that because
there was a partial taking of some portion of its property under
eminent domain, the damages attributable to the loss of direct
access to STH 19 are compensable pursuant to the partial takings
subsection of the just compensation statute, Wis. Stat.
3
When asked in the trial court whether there was any
dispute that STH 19 was a controlled-access highway, Hoffer
responded "No argument, your Honor. As [the attorney for DOT
said], the Department properly caused it to be or declared it to
be a controlled-access highway."
4
In its brief to this court, Hoffer states:
In accordance with Wis. Stat. § 32.09(6)(b), DOT can
deprive or restrict an abutting owner's right of
access to a highway 'without compensation under any
duly authorized exercise of the police power.' The
only way that DOT can acquire an abutting owner's
access rights under the police power and without the
payment of compensation is by declaring the highway in
[sic] to be a controlled-access highway under § 84.25.
2
No.2012AP2520
§ 32.09(6)(b). Consequently, Hoffer contends, compensation for
the .72 acre must include the diminution of value of the
property due to the loss of its direct access to the highway.
¶3 Hoffer appealed the amount of compensation to the
Jefferson County circuit court, Honorable William F. Hue,
presiding. At the circuit court, Hoffer argued that DOT owed him
additional compensation for diminution of the value of the
property due to the loss of direct access to STH 19 if a jury
determined the access provided by the Frohling Lane extension is
unreasonable. DOT argued that because it exercised its police
power to eliminate Hoffer's direct access to STH 19 and because
Hoffer has alternate access to the property through the Frohling
Lane extension, Hoffer has reasonable access as a matter of law
and no compensation is due. The circuit court agreed and granted
partial summary judgment to DOT.
¶4 The court of appeals affirmed, concluding that under
our holding in Surety Savings & Loan Ass'n v. DOT, 54
Wis. 2d 438, 195 N.W.2d 464 (1972), when DOT acts pursuant to
the controlled-access highway statute "the inquiry is merely
whether alternate access was provided." Hoffer Props., LLC v.
DOT, No. 2012AP2520, unpublished slip op., ¶7 (Wis. Ct. App. May
1, 2014) (citing Surety Savings, 54 Wis. 2d at 444-45). The
court of appeals determined that the circuit court's grant of
summary judgment was proper because DOT provided alternate
access to Hoffer's property. Id.¶5 We consider two issues. First, whether DOT is duly
authorized by Wis. Stat. § 84.25 to eliminate an abutting
3
No.2012AP2520
owner's direct access to a controlled-access highway and replace
it with more circuitous access.5 Second, whether the provision or
existence of some access to the abutting property obviates the
need for a jury determination of "reasonableness" because the
abutting property owner is precluded from compensation pursuant
to Wis. Stat. § 32.09(6)(b).
¶6 First, we hold that Wis. Stat. § 84.25(3) authorizes
DOT to change Hoffer's access to STH 19 in whatever way it deems
"necessary or desirable." Such changes, including elimination of
direct access points, are duly authorized exercises of the
police power and are not compensable under Wis. Stat. § 32.09 as
long as alternate access is given that does not deprive the
abutting owner of all or substantially all beneficial use of the
property. Second, we hold that when DOT changes an abutting
property owner's access to a controlled-access highway but other
access is given or exists, the abutting property owner is
precluded from compensation pursuant to Wis. Stat. § 32.09(6)(b)
as a matter of law and no jury determination of reasonableness
is required. Reasonableness is the wrong standard to apply
because the provision of some access preserves an abutting
property owner's right of access to a controlled-access highway,
and thus no taking compensable under Wis. Stat. § 32.09(6)(b)
occurs. Accordingly, Hoffer is precluded from compensation under
5
Neither the circuit court nor the court of appeals
addressed this issue because Hoffer did not raise it before
either court.
4
No.2012AP2520
Wis. Stat. § 32.09(6)(b) because alternate access to the
property was provided by the Frohling Lane extension. We
therefore affirm the court of appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶7 Hoffer Properties, LLC, owns the subject property, a
9.90 acre parcel of land located west of Watertown. The
property's northern boundary is State Trunk Highway 19. Prior to
2008, the property had direct access to STH 19 via two
driveways. The property consists of a single-family dwelling,
the first floor of which is Hoffer's real estate office; a barn
that is rented for storage; and a machine shed that is partially
rented as a workshop. On June 14, 2002, DOT designated 13.76
miles of STH 19 a "controlled-access" highway pursuant to Wis.
Stat. § 84.25.6 The portion of STH 19 that was designated
6
Wis. Stat. § 84.25, the controlled-access highway statute,
consists of several subsections that outline the powers of DOT
to regulate traffic on the highway and the rights of users,
abutting landowners, and the general public after that
declaration is made. The procedures DOT must follow to make a
valid declaration of controlled-access are stated in section
84.25(1):
The legislature declares that the effective control of
traffic entering upon or leaving intensively traveled
highways is necessary in the interest of public
safety, convenience and the general welfare. The
department is authorized to designate as controlled-
access highways the rural portions of the state trunk
system on which, after traffic engineering surveys,
investigations and studies, it shall find, determine
and declare that the average traffic potential is in
excess of 2,000 vehicles per 24-hour day. Such
designation of a portion of any state trunk highway in
any county as a controlled-access highway shall not be
effected until after a public hearing in the matter
(continued)
5
No.2012AP2520
"controlled-access" included the portion that bounded Hoffer's
property.
¶8 In 2008, DOT undertook a highway improvement project
that involved relocating STH 26, which was to intersect with STH
19 to the west of Hoffer's property. DOT determined that it was
necessary to change the access points to STH 19 in the vicinity
of the relocated STH 26 as part of the project. To that end, on
December 29, 2008,7 DOT eliminated Hoffer's direct access to STH
19. DOT acquired through eminent domain both .72 acre of
Hoffer's land as well as a temporary limited easement in order
to create alternate access to Hoffer's property. DOT tendered to
has been held in the county courthouse or other
convenient public place within the county following
notice by publication of a class 3 notice, under ch.
985, in a newspaper published in the county. If the
department shall then find that the average traffic
potential is as provided by this subsection, and that
the designation of the highway as a controlled-access
highway is necessary in the interest of public safety,
convenience and the general welfare, it shall make its
finding, determination and declaration to that effect,
specifying the character of the controls to be
exercised. Copies of the finding, determination and
declaration shall be recorded with the register of
deeds, and filed with the county clerk, and published
as a class 1 notice, under ch. 985, in the newspaper
in which the notice of hearing was published, and the
order shall be effective on such publication. Not more
than 1,500 miles of highway shall be designated as
controlled-access highways under authority of this
section.
7
Hoffer's brief to this court states that the date of this
taking was December 28, 2009; the Deed by Corporation indicates
the date as December 29, 2008.
6
No.2012AP2520
Hoffer $90,000 for this taking. Hoffer's existing direct access
to STH 19 was replaced by extending Frohling Lane (a north-south
roadway that intersects with STH 19) westward to Hoffer's
property. DOT constructed a new driveway north from this
extension to restore vehicular access to Hoffer's property.8
Hoffer's replacement access requires vehicles to travel roughly
1,000 feet to reach STH 19.
¶9 On May 29, 2009, Hoffer appealed the amount of
compensation it received to the Jefferson County circuit court
pursuant to the eminent domain statutes, Wis. Stat. ch. 32.9
Hoffer claimed that because there had been a partial taking of
its land, Wis. Stat. § 32.09(6)(b)10 required DOT to include in
8
Payment for the driveway is not at issue because Hoffer
conceded at oral argument that DOT had constructed and paid for
the new driveway.
9
Pursuant to Wis. Stat. § 32.05(2)-(7), DOT must have an
appraisal of the property taken prior to condemnation. DOT must
then negotiate with the property owner for purchase of the
property. If no agreement can be reached, DOT makes a
jurisdictional offer to purchase which describes the nature of
the project, the property to be taken, the proposed date of
occupancy, the amount of compensation offered, the right of the
property owner to accept or reject the offer, and an explanation
of how to appeal the amount of compensation offered. Wis. Stat.
§ 32.05(3). If the property owner rejects the offer, the amount
of compensation offered can be appealed to a judge of the
circuit court for the county in which the property is located.
See Wis. Stat. § 32.05(9)(a).
10
Wis. Stat. § 32.09 governs just compensation in eminent
domain proceedings. Subsection (6) governs partial takings.
Subsection (6)(b) allows for compensation for diminution of
value to the rest of the property caused by "deprivation or
restriction of [an] existing right of access to [a] highway from
abutting land, provided that nothing herein shall operate to
(continued)
7
No.2012AP2520
the amount of compensation paid for the taking the amount by
which the value of the property was diminished due to the loss
of its direct access to STH 19. Hoffer conceded that DOT
properly designated STH 19 a "controlled-access" highway
pursuant to Wis. Stat. § 84.25.11 Hoffer contended, however, that
Wisconsin law requires DOT to pay compensation if DOT does not
provide reasonable access between the highway and Hoffer's
property. Citing our decision in National Auto Truckstops, Inc.,
v. DOT, 2003 WI 95, 263 Wis. 2d 649, 665 N.W.2d 198, Hoffer
filed a motion in limine seeking an order that reasonable access
was a jury question and that Hoffer was due compensation if a
jury decided that the Frohling Lane access was unreasonable.
¶10 DOT moved for partial summary judgment, arguing that
pursuant to our holding in Surety Savings "there is no
compensable taking when direct access to a controlled-access
highway is denied, where other access is given or otherwise
exists." Surety Savings, 54 Wis. 2d at 443. DOT stated that
because there was no dispute that it had acted pursuant to Wis.
Stat. § 84.25, the controlled-access highway statute, and
because the Frohling Lane extension had provided "other access"
to the property, Hoffer's access was reasonable as a matter of
restrict the power of the state . . . to deprive or restrict
such access without compensation under any duly authorized
exercise of the police power."
11
See n.3.
8
No.2012AP2520
law, so any claim for damages resulting from a change in
Hoffer's access was barred.
¶11 Following a hearing, the circuit court denied Hoffer's
motions and granted partial summary judgment to DOT. The circuit
court found that the elimination of Hoffer's direct access to
STH 19 was a noncompensable exercise of the police power and
that reasonable access had been given as a matter of law.
Thereafter, the circuit court granted Hoffer's motion to dismiss
the action but preserved Hoffer's right to appeal.
¶12 On appeal, Hoffer argued that our holding in National
Auto Truckstops required DOT to compensate the owner of abutting
land if 1) DOT eliminates the property's direct access to a
controlled-access highway; and 2) a jury determines that the
replacement access is unreasonable. In an unpublished per curiam
opinion, the court of appeals affirmed the circuit court. Hoffer
Props., LLC, No. 2012AP2520, unpublished slip op. The court of
appeals distinguished National Auto Truckstops by noting that
the highway at issue there was not a controlled-access highway.
Id., ¶6. The court of appeals determined that Surety Savings
controlled, and "reject[ed] Hoffer's argument that the question
of whether the alternate access was reasonable was required to
be decided by a jury, because reasonableness is not the correct
legal standard to apply. Under Surety Savings, the inquiry is
merely whether alternate access was provided." Id., ¶7. The
court of appeals determined that because alternate access to
Hoffer's property was provided, no compensable taking had
occurred. See id.
9
No.2012AP2520
¶13 Hoffer petitioned this court for review, which we
granted on February 10, 2015.
II. STANDARD OF REVIEW
¶14 This case requires us to construe the controlled-
access highway statute, Wis. Stat. § 84.25, and the just
compensation statute, Wis. Stat. § 32.09. "The interpretation
of a statute is a question of law that we review de novo." Crown
Castle USA, Inc., v. Orion Constr. Grp., LLC, 2012 WI 29, ¶12,
339 Wis. 2d 252, 811 N.W.2d 332. "We interpret statutes
independently, but benefit from both our prior analyses and that
of the lower courts." Id. (citation omitted).
III. STATUTORY INTERPRETATION
¶15 Statutory interpretation "begins with the language of
the statute. If the meaning of the statute is plain, we
ordinarily stop the inquiry." State ex rel Kalal v. Circuit
Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110. "Statutory language is given its common, ordinary,
and accepted meaning, except that technical or specially-defined
words or phrases are given their technical or special
definitional meaning." Id. "We attempt to give reasonable effect
to every word, avoiding both surplusage and absurd or
unreasonable results." Crown Castle USA, 339 Wis. 2d 252, ¶13
(citing Kalal, 271 Wis. 2d 633, ¶46). Further, "the context and
structure of the statute are important, and we interpret the
statute in light of 'surrounding or closely-related statutes.'"
Masri v. LIRC, 2014 WI 81, ¶30, 356 Wis. 2d 405, 850 N.W.2d 298(quoting Kalal, 271 Wis. 2d 633, ¶46).
10
No.2012AP2520
IV. DISCUSSION
¶16 We first discuss whether the elimination of an
abutting property owner's direct access to a controlled-access
highway is an exercise of the police power duly authorized by
Wis. Stat. § 84.25. We hold that it is, because the statute
authorizes DOT to change access to such a highway as DOT deems
"necessary or desirable." We then consider whether the provision
of some alternate access to an abutting property owner's
property obviates the need for a jury determination of
"reasonableness" in controlled-access highway cases. We hold
that reasonableness is the wrong standard to apply because when
DOT changes an abutting property owner's access pursuant to Wis.
Stat. § 84.25, no taking compensable under Wis. Stat.
§ 32.09(6)(b) occurs. Thus, in controlled-access highway cases
abutting property owners are precluded from compensation for a
change in access pursuant to Wis. Stat. § 32.09(6)(b) as a
matter of law. However, exercises of the police power cannot
deprive the owner of all or substantially all beneficial use of
the property without compensation. If the replacement access is
so circuitous as to amount to a regulatory taking of the
property, then compensation is due and the abutting property
owner may bring an inverse condemnation claim pursuant to Wis.
Stat. § 32.10.
11
No.2012AP2520
A. ELIMINATION OF AN ABUTTING PROPERTY OWNER'S
DIRECT ACCESS TO A CONTROLLED-ACCESS HIGHWAY
IS A DULY AUTHORIZED EXERCISE OF THE POLICE POWER
¶17 The Fourteenth Amendment to the United States
Constitution states that no person shall be deprived of property
without due process of law. U.S. Const. amend. XIV, § 1. The
Wisconsin Constitution provides that "[t]he property of no
person shall be taken for public use without just compensation
therefor." Wis. Const. art. I, § 13. "It has long been settled,
however, that these constitutional provisions interpose no
barrier to the exercise of the police power of the state." State
ex rel. Carter v. Harper, 182 Wis. 148, 151, 196 N.W. 451(1923). In other words, "injury to property resulting from the
exercise of the police power of the state does not necessitate
compensation." Surety Savings, 54 Wis. 2d at 443. A state acts
under its police power when it regulates in the interest of
public safety, convenience, and the general welfare of the
public. See Nick v. State Highway Comm'n, 13 Wis. 2d 511, 513-
14, 109 N.W.2d 71 (1961). Government action such as a regulation
can amount to a compensable taking absent a physical occupation,
however, "if [the effects of the governmental action] are so
complete as to deprive the owner of all or most of his interest
in the subject matter." Wisconsin Light & Power Co. v. Columbia
Cty., 3 Wis. 2d 1, 5, 87 N.W.2d 279 (1958) (quoting United
States v. General Motors Corp., 323 U.S. 373, 378 (1945)); see
also Just v. Marinette Cty., 56 Wis. 2d 7, 15, 201 N.W.2d 761(1972) ("The protection of public rights may be accomplished by
the exercise of the police power unless the damage to the
12
No.2012AP2520
property owner is too great and amounts to a confiscation.").
Claims for such "regulatory takings" must be brought under Wis.
Stat. § 32.10, the inverse condemnation statute.
¶18 The primary distinction between the power of eminent
domain and the police power of the state most relevant to the
present case is that government takings by eminent domain are
compensable under Wis. Stat. § 32.09, while government actions
pursuant to the police power are not, except in limited
circumstances. See Wis. Stat. § 32.09(4), (6)(b). While we note
that "[t]he right of access to and from a public highway is one
of the incidents of the ownership or occupancy of land abutting
thereon," 118th Street Kenosha, LLC, v. DOT, 2014 WI 125, ¶30,
359 Wis. 2d 30, 856 N.W.2d 486 (quoting Hastings Realty Corp. v.
Texas Co., 28 Wis. 2d 305, 310, 137 N.W.2d 79 (1965)), we also
note that, provided the damage does not amount to a regulatory
taking of the property, Wisconsin. Stat. § 32.09(6)(b) allows
the state "to deprive or restrict such access without
compensation under any duly authorized exercise of the police
power."
1. DOT Exercises the Police Power When It
Designates a Highway "Controlled-Access"
¶19 By means of Wis. Stat. § 84.25, the controlled-access
highway statute, the legislature has authorized DOT to designate
up to 1,500 miles of heavily traveled, rural highways
"controlled-access." This is a tightly circumscribed power, and
the designation can be made only if DOT first takes the specific
steps enumerated in Wis. Stat. § 84.25(1). Among other things,
13
No.2012AP2520
DOT must conduct "traffic engineering surveys, investigations
and studies" to determine whether the average traffic potential
for the highway is in excess of 2,000 vehicles per 24-hour day.
Wis. Stat. § 84.25(1). Before the controlled-access designation
can be made, DOT is required to hold a public hearing on the
matter following notice by publication in a county newspaper in
the county in which the highway lies. Id. If, after the required
surveys and investigations and the required public notice and
hearing, DOT then finds that both the traffic potential is above
2,000 vehicles a day "and that the designation of the highway as
a controlled-access highway is necessary in the interest of
public safety, convenience and the general welfare," DOT "shall
make its finding, determination and declaration to that effect,
specifying the character of the controls to be exercised." Id.Copies of the finding, determination and declaration must be
recorded with the register of deeds and filed with the county
clerk as well as published in the same newspaper as notice of
the hearing. Once the publication has taken place, the
designation of "controlled-access" becomes effective. Id.¶20 It is this designation of a highway as "controlled-
access" that must be "necessary in the interest of public
safety, convenience and the general welfare . . . ." Wis. Stat.
§ 84.25(1). Thus, it is the designation that is an exercise of
the police power. Surety Savings, 54 Wis. 2d at 443 ("The
designation of a highway as a controlled-access highway is an
exercise of the police power."). The designation of a highway as
"controlled-access" serves as a precondition for the operation
14
No.2012AP2520
of the other subsections of Wis. Stat. § 84.25, the controlled-
access highway statute. These subsections grant DOT expansive
powers after it has properly designated part or all of a highway
"controlled-access," including authority over how the general
public and abutting property owners access the highway. See Wis.
Stat. § 84.25(3)-(5), (7)-(10), (13). Once the highway has been
designated "controlled-access," the statute authorizes DOT to
subsequently change the access points in whatever way it "deems
necessary or desirable."12
2. The Effect of a Controlled-Access Highway Designation
on the Rights of Users and Abutting Property Owners
¶21 Wisconsin Stat. § 84.25 explains how the rights of
users and abutting property owners are restricted by the
designation of the highway as "controlled-access." See Wis.
Stat. § 84.25(4)-(6), (11), (12). Pertinent here, the statute
states that "[n]o person shall have any right of entrance
upon . . . any controlled-access highway, or to or from abutting
lands except at places designated and provided for such
purposes, and on such terms and conditions as may be specified
from time to time by the department." Wis. Stat. § 84.25(5). The
12
The statute cannot authorize unconstitutional
deprivations of property without just compensation; thus, in
order to exercise the police power to change an abutting owner's
access to the highway without paying compensation, DOT must
provide some access to the property that is not so circuitous as
to deprive the abutting owner of all or substantially all
beneficial use of the property. Pursuant to Wis. Stat. § 84.25,
DOT may change access in whatever way it deems "necessary or
desirable" within these constitutional boundaries.
15
No.2012AP2520
statute also expressly curtails the access rights of abutting
property owners, so that "[a]fter the designation of a
controlled-access highway, the owners . . . of abutting lands
shall have no right or easement of access, by reason of the fact
that their property abuts on the controlled-access highway or
for other reason, except only the controlled right of
access . . . ." Wis. Stat. § 84.25(6). Pursuant to this
subsection, abutting property owners lose any right to
compensation under Wis. Stat. § 32.09 for a change in access to
the highway, provided some access remains, at the moment DOT
makes the "controlled-access" designation. See Nick, 13 Wis. 2d
at 515 ("The situation regarding the question of damages [for
diminution of value of the property due to a loss of direct
access to a controlled-access highway] was frozen when the
commission declared highway 30 a controlled-access highway.").
¶22 The controlled-access highway statute is unique in its
operation against abutting property owners,13 and consequently
the legislature limited DOT's authority to exercise the police
power and make a "controlled-access" designation. The
legislature prescribed elaborate procedures, including public
13
As will be discussed below, the other statutes that
comprise Wis. Stat. ch. 84, the State Trunk Highways chapter,
contain different language regarding compensation to abutting
property owners than does the controlled-access highway statute.
Consequently, the access rights of abutting property owners are
affected differently by the designation of the highway as
"controlled-access" than by actions taken by the DOT pursuant to
other statutes in the chapter.
16
No.2012AP2520
notice and hearing, which DOT must follow to designate a highway
"controlled-access." Furthermore, the legislature limited the
amount of highway DOT can designate "controlled-access" to 1,500
miles. DOT cannot change or restrict an abutting owner's
existing access to a State trunk highway14 without paying
compensation pursuant to Wis. Stat. § 32.09 unless DOT has
validly designated the highway "controlled-access" and alternate
access to the highway has been provided. An abutting property
owner's opportunity to object to DOT's exercise of the police
power comes at the time of the hearing on whether to designate
the highway "controlled-access." After a valid controlled-access
designation has been made, however, DOT may change an abutting
owner's access to the highway without compensation, pursuant to
Wis. Stat. § 84.25(3), in whatever way it "deems necessary and
desirable" as long as it provides other access that does not
deprive the abutting owner of all or substantially all
beneficial use of the property. After a valid controlled-access
designation is made, the abutting owner's rights are curtailed——
and the DOT subsequently acts——pursuant to a duly authorized
exercise of the police power.
3. Hoffer's Direct Access was Eliminated
Pursuant to an Exercise of the Police Power
¶23 Hoffer concedes that "DOT can deprive or restrict an
abutting owner's right of access to a highway 'without
14
Provided the State trunk highway has not otherwise been
designated a freeway pursuant to Wis. Stat. § 84.295 or
designated an interstate highway pursuant to Wis. Stat. § 84.29.
17
No.2012AP2520
compensation under any duly authorized exercise of the police
power.'"15 Hoffer further concedes that the designation of a
highway as controlled-access is a duly authorized exercise of
the police power and that DOT followed all of the required
procedures in Wis. Stat. § 84.25(1) to designate STH 19 a
controlled-access highway.16 Hoffer argues, however, that the
controlled-access highway statute does not grant DOT the power
to subsequently eliminate its direct access to STH 19 and
replace it with more circuitous access. Rather, Hoffer claims
that Wis. Stat. § 84.25 grants DOT "authority to regulate an
abutting owner's direct access . . . to an existing State trunk
highway without paying compensation to the owner, but such
authority is not granted to eliminate that access." Hoffer's
argument rests on its emphasis of certain language in the
statute which grants DOT authority to prohibit anyone from
entering or leaving the highway "except at places designated and
provided for such purposes" and that abutting owners have no
right of access "except only the controlled right of access."
Hoffer claims that by using the words "except"17 and
15
See n.4.
16
See n.3.
17
Hoffer does not explain how the word "except" is meant to
withhold DOT's authority to eliminate access points. Presumably,
Hoffer's theory is that by allowing DOT to prohibit anyone from
entering the highway "except" at places "designated and provided
for such purposes" by the department, the legislature granted
DOT authority over the rest of the highway but not over the
preexisting access points.
18
No.2012AP2520
"controlled," the legislature indicated its intent to withhold
from DOT authority to eliminate an abutting owner's direct
access to a controlled-access highway. Hoffer insists that DOT's
authority to regulate does not include the authority to
eliminate preexisting direct access points and replace them with
more circuitous access to a controlled-access highway.
¶24 Hoffer is mistaken. Its proposed construction is at
odds not only with the plain language of the statutes, but with
the clear holdings of our case law. There are three reasons why
Hoffer's proposed interpretation cannot be correct.
¶25 First, Wis. Stat. § 84.25(3) states that "the
department may use an existing highway . . . for a controlled-
access highway . . . and so regulate, restrict or prohibit
access to or departure from it as the department deems necessary
or desirable." This very precise language indicates that the
legislature granted expansive authority to DOT to change access
to a controlled-access highway. By allowing DOT to designate an
existing highway "controlled-access" and thereafter "regulate,
restrict or prohibit access to or departure from it as the
department deems necessary or desirable," the legislature
granted DOT broad control over the entire portion of the
existing highway that has been designated "controlled-access,"
including placement and replacement of access points. Because it
is self-evident that elimination of direct access points is a
means of "restrict[ing] or prohibit[ing] access," Hoffer cannot
be correct when it argues that the statute does not grant DOT
authority to eliminate Hoffer's direct access points.
19
No.2012AP2520
¶26 Second, Wis. Stat. § 84.25(5) states that "[n]o person
shall have any right of entrance" to a controlled-access
highway, "or to or from abutting lands," except at places
designated for such purposes "and on such terms and conditions
as may be specified [by the department] from time to time"
(emphasis added). The phrase "from time to time" indicates that
the legislature enabled DOT to periodically change the terms and
conditions by which any person——abutter or otherwise——has access
to a controlled-access highway. See Surety Savings, 54
Wis. 2d at 444-45 (holding that Wis. Stat. § 84.25(5)
"demonstrate[s] the legislature's intent to give the highway
commission continuing power to review and modify its
authorizations for access to or across a controlled-access
highway"). Replacing direct access with a more circuitous route
is inarguably a change of the "terms and conditions" by which an
abutter is allowed to enter the highway. We cannot accept a
construction of a statute that does not "give reasonable effect
to every word, avoiding both surplusage and absurd or
unreasonable results." Crown Castle USA, 339 Wis. 2d 252, ¶13
(citing Kalal, 271 Wis. 2d 633, ¶46). Hoffer's reading of the
statute ignores that part of § 84.25(5) which expressly vests
DOT with authority to change the "terms and conditions" of
access "from time to time." Thus, this argument must be
rejected.
¶27 Third, Wis. Stat. § 84.25(6) states that once a
highway is designated controlled-access, abutting owners "shall
have no right or easement of access, by reason of the fact that
20
No.2012AP2520
their property abuts on the controlled-access highway or for
other reason, except only the controlled right of
access . . . ." Wis. Stat. § 84.25(6). This subsection
eliminates an abutting property owner's right to compensation
under § 32.09(6)(b) for a change to existing access at the
moment DOT designates the highway "controlled-access." See Nick,
13 Wis. 2d at 515. Replacement access which results in a
circuitous route rather than a direct one is a lawful——if
regrettable——result of controlling access. See, e.g., Carazalla
v. State, 269 Wis. 593, 71 N.W.2d 276 (1955) (holding that
circuity of travel is not a compensable item of damages); Nick,
13 Wis. 2d at 514 ("if no land is taken for the converted
highway but the abutting landowner's access to the highway is
merely made more circuitous, no compensation should be paid,");
McKenna v. State Highway Comm'n, 28 Wis. 2d 179, 184, 135
N.W.2d 827 (1965) ("There is no taking in the sense required by
the statute, where, as in this case, another access route is
available."); Stefan Auto Body v. State Highway Comm'n, 21
Wis. 2d 363, 369-74, 124 N.W.2d 319 (1963) (noting that in
controlled-access highway cases circuity of travel resulting
from a changed access point is not compensable).
¶28 In the present case, DOT conducted the required
traffic engineering surveys, investigations, and studies to
designate STH 19 "controlled-access." DOT held a public hearing
on the matter on May 4, 2002, at the Milford Town Hall in
Jefferson County after giving notice by three separate
publications in two separate Jefferson County newspapers. It
21
No.2012AP2520
found that the potential traffic on STH 19 exceeded 2,000
vehicles per day and that it was necessary in the interest of
public safety, convenience, and the general welfare to designate
STH 19 "controlled-access." In sum, DOT did everything necessary
to validly designate STH 19 "controlled-access." Upon that
designation Hoffer lost its right to be compensated pursuant to
Wis. Stat. § 32.09(6)(b) for a change to existing access
resulting in circuity of travel. By the time Hoffer's direct
access was eliminated, the controlled-access designation of STH
19 had been made, Hoffer's right of access had been curtailed to
the "controlled right of access," DOT had determined it was
"necessary or desirable" to change Hoffer's access to the
highway, and DOT provided alternate access to Hoffer's property.
¶29 In light of the foregoing, we conclude that DOT's
replacement of Hoffer's direct access with circuitous access to
a controlled-access highway was done pursuant to an exercise of
the police power duly authorized by Wis. Stat. § 84.25.
Consequently the elimination of Hoffer's direct access to STH 19
was not compensable under Wis. Stat. § 32.09(6)(b).
B. IN CONTROLLED-ACCESS HIGHWAY CASES
ABUTTING PROPERTY OWNERS ARE PRECLUDED FROM SEEKING
COMPENSATION UNDER WIS. STAT. § 32.09(6)(b) FOR
DAMAGE TO THE PROPERTY RESULTING FROM A CHANGE IN ACCESS
¶30 As noted above, when DOT designates a highway
"controlled-access," an abutting owner's right to compensation
pursuant to Wis. Stat. § 32.09(6)(b) for a replacement of
existing access is eliminated. The abutting owner's remaining
property right of access is the controlled right of access and
22
No.2012AP2520
not the right to access as it existed prior to or
contemporaneously with the highway's designation as "controlled-
access." The right of access
involves only the right to enter and leave the
property without being forced to trespass across the
land of another. It does not include any right to
develop property with reference to the type of access
granted or to have access at any particular point on
the boundary lines of the property.
Surety Savings, 54 Wis. 2d at 444 (emphasis added). The
controlled right of access is also subject to "such terms and
conditions as may be specified from time to time by [DOT]." Wis.
Stat. § 84.25(5). Requiring an abutting property owner to access
a controlled-access highway by a more circuitous route rather
than directly is a "term[] and condition[]" of access and a
lawful means of "controlling" access. Consequently, this court
has stated that "[w]here access to a highway is controlled under
the exercise of the police power and reasonable access remains,
no compensation is required." Schneider v. State, 51
Wis. 2d 458, 462, 187 N.W.2d 172 (1971) (citing Nick, 13
Wis. 2d 511). In both Schneider and Surety Savings, we held that
because DOT had changed the abutting property owners' access
pursuant to the controlled-access highway statute, the abutting
property owners were precluded from seeking compensation for
diminution of value of the property that resulted from the
changed access. See Schneider, 51 Wis. 2d at 463-64; Surety
Savings, 54 Wis. 2d at 443. Hoffer states that the property
owners in neither case challenged the replacement access as
"unreasonable," and contends that because it has made such a
23
No.2012AP2520
challenge it is due compensation for diminution of value damages
if a jury determines its replacement access is unreasonable. For
the reasons discussed below, we disagree.
1. A Taking Occurs Only if the Access Provided
Deprives the Abutting Property Owner of All or
Substantially All Beneficial Use of the Property
¶31 A taking must occur before a viable claim for
compensation can arise. Howell Plaza, Inc. v. State Highway
Comm'n, 92 Wis. 2d 74, 80, 284 N.W.2d 887 (1979) (hereinafter
Howell Plaza II). No compensable taking occurs when DOT changes
an abutting property owner's access to a controlled-access
highway if other access is provided that does not deprive the
owner of all or substantially all beneficial use of the
property. Additionally, "duly authorized" acts of the police
power that restrict or deprive access to a highway from abutting
lands are not compensable pursuant to Wis. Stat. § 32.09(6)(b).
When no taking compensable pursuant to Wis. Stat. § 32.09(6)(b)
has occurred, there is nothing for a jury to determine pursuant
to Wis. Stat. § 32.09(6)(b). Thus, in controlled-access highway
cases, abutting property owners are precluded from compensation
under Wis. Stat. § 32.09(6)(b) as a matter of law because no
compensation is possible pursuant to that statute. Making a
claim that the access given is unreasonable does not transform
an act that is noncompensable pursuant to Wis. Stat.
§ 32.09(6)(b) into a compensable one.
¶32 This does not mean, however, that the provision of
alternate access to a controlled-access highway precludes the
24
No.2012AP2520
abutting property owner from compensation in all possible
contexts. Changes in access to a controlled-access highway may
support a claim pursuant to Wis. Stat. § 32.10 for a regulatory
taking of the property. "The protection of public rights may be
accomplished by the exercise of the police power unless the
damage to the property owner is too great and amounts to a
confiscation." Just, 56 Wis. 2d at 15. The abutting property
owner may not be deprived of all or substantially all beneficial
use of his property without compensation by means of an exercise
of the police power or otherwise. See E-L Enterprises, Inc., v.
Milwaukee Metro. Sewerage Dist., 2010 WI 58, ¶37, 326
Wis. 2d 82, 785 N.W.2d 409. "Whether a taking [pursuant to Wis.
Stat. § 32.10] has occurred depends upon whether 'the
restriction practically or substantially renders the land
useless for all reasonable purposes.'" Just, 56 Wis. 2d at 15(quoting Buhler v. Racine Cty., 33 Wis. 2d 137, 143, 146
N.W.2d 403 (1966)).
¶33 If the access DOT provides to a controlled-access
highway deprives the abutting property owner of all or
substantially all beneficial use of the property, DOT has taken
the property and the change in access may support an inverse
condemnation claim pursuant to Wis. Stat. § 32.10. However,
"even if a highway construction project results in damages that
are compensable under a particular statute, those damages cannot
be recovered in a claim brought under the wrong statute." 118th
Street, 359 Wis. 2d 30, ¶33. The proper mechanism for pursuing
compensation for damages resulting from a change in access when
25
No.2012AP2520
DOT acts pursuant to the controlled-access highway statute is to
bring an inverse condemnation claim under Wis. Stat. § 32.10.
Thus, even had Hoffer's replacement access deprived it of all or
substantially all beneficial use of its property, it could not
recover under the Wis. Stat. § 32.09(6)(b) claim it has pursued
here.
¶34 We recognize that this is a high standard for owners
of property abutting a controlled-access highway to meet.
Controlled-access highways are, however, limited and unique, and
the legislature granted DOT authority to regulate access to them
under the police power in whatever way DOT deems necessary and
desirable provided the abutting property owner retains some
access to the highway. The legislature further codified the
principle that valid exercises of the police power do not
require payment under the just compensation statute, Wis. Stat.
§ 32.09, except in limited circumstances. We will not intrude
upon these legislative choices.
2. It is Presumed that the Legislature
Purposefully Omitted a Reasonableness Standard
from the Controlled-Access Highway Statute
¶35 An analysis of the surrounding statutes in Wis. Stat.
ch. 84 further compels the conclusion that "reasonableness is
not the correct legal standard to apply" when DOT changes an
abutting property owner's access to a controlled-access highway
and thus no jury is required in controlled-access highway cases.
Hoffer Properties, slip. op., ¶7. "When the legislature enacts a
statute, it is presumed to act with full knowledge of the
26
No.2012AP2520
existing laws, including statutes." Mack v. Joint Sch. Dist. No.
3, 92 Wis. 2d 476, 489, 285 N.W.2d 604 (1979). The freeway
statute, Wis. Stat. § 84.295, states that "reasonable provision
for public highway traffic service or access to abutting
property shall be provided by means of frontage roads . . . or
the right of access to or crossing of the public highway shall
be acquired on behalf of the state" when DOT is undertaking a
freeway project (emphasis added). Identical language appears in
Wis. Stat. § 84.29, the interstate highway statute.
¶36 These statutes command that if DOT does not provide
reasonable access to the highway by means of frontage roads when
undertaking a freeway or interstate highway project, the
abutting property owners are due compensation under Wis. Stat.
§ 32.09 for a taking of their access rights.18 This language is
conspicuously absent from the controlled-access highway statute.
Rather, Wis. Stat. § 84.25(6) states that owners "of abutting
lands shall have no right or easement of access . . . except
only the controlled right of access." We presume that had the
legislature intended to include reasonableness as a component of
Wis. Stat. § 84.25 and allow for compensation under Wis. Stat.
§ 32.09, it would have included this language in the statute, as
it did for freeways and expressways in Wis. Stat. § 84.295 and
for interstate highways in Wis. Stat. § 84.29.
18
Wisconsin Stat. § 990.01(2) governs the construction of
Wisconsin laws, and it states that "[a]cquire," when used in
connection with a grant of power to any person, includes the
acquisition by purchase, grant, gift or bequest. It includes the
power to condemn in the cases specified in s. 32.02.
27
No.2012AP2520
¶37 The legislature, however, omitted this command from
Wis. Stat. § 84.25. When DOT acts pursuant to the controlled-
access highway statute, abutting property owners must be
compensated for DOT's "acquisition" of their property only if
DOT does not provide some access or if the access provided is so
circuitous as to amount to a regulatory taking of the property.
Consequently, when DOT provides alternate, albeit more
circuitous, access to abutting lands from a controlled-access
highway, no taking compensable pursuant to Wis. Stat.
§ 32.09(6)(b) occurs. It is axiomatic that where there is no
compensable taking there will be no compensation. "[T]here must
be a taking before there can be a claim for just compensation."
Howell Plaza II, 92 Wis. 2d at 80; see also Surety Savings, 54
Wis. 2d at 444 ("Since appellants have always had access
available to them, no property right was taken."). The
legislature did not require DOT to either provide reasonable
access to a frontage road or to acquire the access rights of
abutting property owners when it acts pursuant to Wis. Stat.
§ 84.25. Thus, in controlled-access highway cases, provision of
some access preserves the abutting property owner's controlled
right of access to the property; no jury is required to
determine whether the replacement access is reasonable because
in controlled-access highway cases reasonableness is not the
standard to apply to determine if compensation is due pursuant
to Wis. Stat. § 32.09(6)(b).19
19
We reiterate, however, that circuitous access amounting
(continued)
28
No.2012AP2520
3. The Cases Hoffer Relies on Are
Eminent Domain Cases, Not Police Power Cases
¶38 Hoffer attempts to distinguish Surety Savings and its
predecessors, in which we held that abutting property owners
could not recover diminution of value damages caused by changes
in access to the highway, by arguing that those cases were
abrogated by the decisions in National Auto Truckstops, 263
Wis. 2d 649, and Seefeldt v. DOT, 113 Wis. 2d 212, 336
N.W.2d 182 (Ct. App. 1983). We disagree.
¶39 Both cases are easily distinguishable. In the present
case DOT was exercising the police power pursuant controlled-
access highway statute, while in National Auto Truckstops and
Seefeldt it was not. In National Auto Truckstops, the highway at
issue (Highway 12) had not been designated "controlled-access."
Thus, unlike the present case, the change in National Auto
Truckstops' access "was not a 'duly authorized exercise of the
police power.'" National Auto Truckstops, 263 Wis. 2d 649, ¶16
(emphasis in original). Consequently Wis. Stat. § 32.09(6)(b)
applied and a jury determination of reasonableness was required
to a regulatory taking of the property may be compensable under
Wis. Stat. § 32.10.
29
No.2012AP2520
to determine the amount of compensation due, if any.20 National
Auto Truckstops is inapplicable to controlled-access highway
cases because no compensation is due under Wis. Stat.
§ 32.09(6)(b) when DOT exercises the police power pursuant to
Wis. Stat. § 84.25. In fact, the plaintiffs in National Auto
Truckstops had conceded that if DOT had designated the highway
"controlled-access" under Wis. Stat. § 84.25, no compensation
would be due for the elimination of their direct access to
Highway 12. See id., ¶8. Given that DOT did act pursuant to the
controlled-access highway statute vis-à-vis Hoffer's property,
National Auto Truckstops is unavailing to Hoffer.
¶40 Seefeldt is similarly unhelpful to Hoffer.
Preliminarily, as a court of appeals case, Seefeldt could not
alter the holding of Surety Savings. See Cook v. Cook, 208
Wis. 2d 166, 189, 560 N.W.2d 246 (1997) ("The supreme court is
the only state court with the power to overrule, modify or
withdraw language from a previous supreme court case."). More to
the point, Hoffer's reliance on Seefeldt is misplaced because,
20
We note there is a tension between the language of Wis.
Stat. § 32.09(6)(b) stating that in partial takings cases
compensation is due for "[d]eprivation or restriction of
existing right of access to highway from abutting land [unless
restricted by an exercise of the police power]" and our holding
in National Auto Truckstops that no compensation is due to an
abutting property owner whose existing access has been
restricted if reasonable access remains even when DOT has not
exercised the police power. Reconciliation of the two is not
necessary for the determination of this case and it was neither
briefed nor argued, so we will decline to address the matter
further.
30
No.2012AP2520
like in National Auto Truckstops, Seefeldt did not implicate the
controlled-access highway statute. In Seefeldt, DOT was acting
pursuant to the freeway statute, Wis. Stat. § 84.295. Seefeldt,
113 Wis. 2d at 214-15. As noted above, the freeway statute
contains language that the controlled-access highway statute
does not: when DOT designates a preexisting highway as a
freeway pursuant to Wis. Stat. § 84.295, "reasonable provision
for public highway traffic service or access to abutting
property shall be provided by means of frontage roads . . . or
the right of access to or crossing of the public highway shall
be acquired on behalf of the state." Wis. Stat. § 84.295(5)
(emphasis added). This language in § 84.295(5) requires DOT to
pay compensation pursuant to Wis. Stat. § 32.09 if it does not
provide reasonable access to the freeway. In Seefeldt, DOT had
neither built a frontage road nor acquired Seefeldt's access
rights. Seefeldt, 113 Wis. 2d at 215-16. Consequently, a jury
determination of reasonableness was required to assess how much,
if any, compensation was due under Wis. Stat. § 32.09. Id. at
220-21.
¶41 Unlike in National Auto Truckstops or Seefeldt, in the
present case, DOT exercised the police power pursuant to the
controlled-access highway statute to replace Hoffer's direct
access with circuitous access. As we have explained previously,
Wis. Stat. § 32.09(6)(b) precludes compensation under that
subsection for such exercises of the police power. National Auto
Truckstops and Seefeldt did not alter the rule that the
provision of alternate access precludes compensation pursuant to
31
No.2012AP2520
Wis. Stat. § 32.09(6)(b) in controlled-access highway cases
because neither case involved Wis. Stat. § 84.25. Likewise, they
do not apply to this case.
C. HOFFER WAS FULLY COMPENSATED FOR
ALL DAMAGE CAUSED BY THE TAKING OF THE .72 ACRE
¶42 Hoffer has never articulated how the diminution of
value caused by the loss of direct access to STH 19 relates to
the compensation due for the taking of the .72 acre.21 Our
21
At the circuit court, Hoffer stated that "this is a
partial taking eminent domain valuation case," mentioned that
.72 of an acre was taken, and then argued that Hoffer was being
"denied his constitutional right to be paid compensation by DOT
for its taking of the subject property's access rights to STH
#19." In its motions to that court, Hoffer refers only to "the
taking" and never differentiates between the loss of access
points and the .72 acre.
At the court of appeals, Hoffer again stated that "this is
a partial taking eminent domain valuation case" and
characterized the case as relating "to compensation for the
taking of access rights." Hoffer stated that "DOT's STH #26
project necessitated a partial taking from the subject property"
and claimed that elimination of direct access to STH 19 was one
of the "aspects" of the taking. Hoffer argued that "[d]ifferent
legal standards apply when there has not been a taking as
opposed to when there has been a partial taking. . . . In the
partial taking situation, in accordance with Wisconsin Statutes,
section 32.09(6), the owner is entitled to compensation for
damages . . . accruing to the owner's remaining property as a
result of the taking." (Emphasis added).
In its brief to this court, Hoffer states that "[t]his is a
partial taking eminent domain valuation case. . . .The issue in
this case relates to compensation for the taking of access
rights." Hoffer then states that "DOT's STH #26 project
necessitated a partial taking from the subject property" and
again characterized the termination of its direct access to STH
19 as an "aspect" of the taking.
32
No.2012AP2520
formulation of Hoffer's argument is as follows: the taking of
the .72 acre and the termination of Hoffer's direct access to
STH 19 are not two distinct acts, but rather a single "taking."
According to Hoffer this single taking resulted in a diminution
in value of its property for which it is owed compensation.
Thus, (the argument runs), the elimination of its direct access
is compensable under Wis. Stat. § 32.09(6)(b) even though
Hoffer's direct access points were not on the land taken because
some portion of Hoffer's land was taken by eminent domain.
¶43 Hoffer mistakenly styles its argument upon eminent
domain when in actuality it prosecutes a separate and distinct
claim based upon a challenge to DOT's exercise of the police
power.22 Hoffer is not challenging the reasonableness of the
$90,000 valuation of the .72 acre of land taken pursuant to
eminent domain; rather, it is challenging the kind of remedies
available for the state's legitimate exercise of the police
power. Hoffer attempts to characterize this argument as a matter
of compensation, but it is really a matter of whether it had a
property interest in direct access to the highway.
¶44 Our decisions in 118th Street and Jantz v. DOT, 63
Wis. 2d 404, 217 N.W.2d 266 (1974) illustrate why Hoffer's
argument is unavailing.
22
At oral argument, Hoffer stated it was only seeking
compensation for loss of direct access to STH 19 and claimed
that the difference between a taking under eminent domain and
the police power was just "a label."
33
No.2012AP2520
¶45 In 118th Street,23 we held that "compensation for a
taking cannot include damages for a lost point of access to a
highway if the point of access was lost because of an act
separate from the taking, such as the highway's relocation." 359
Wis. 2d 30, ¶46. There, we cited with approval Jantz, 63
Wis. 2d 404, a case almost directly analogous to Hoffer's case.
See 118th Street, 359 Wis. 2d 30, ¶¶47-48. In Jantz, a
restaurant owner sought compensation for diminution of value of
his business after DOT took .38 acre of Jantz's land in order to
expand the highway. DOT also relocated his access to the
highway. Jantz, 63 Wis. 2d at 407-09. The .38 acre taken was
separate from Jantz's highway access point. Id. We held that the
diminution of value was properly excluded from the compensation
for the partial taking "because those damages were not 'a
consequence of the taking of .38 acre of land . . . .'" 118th
Street, 359 Wis. 2d 30, ¶48 (quoting Jantz, 63 Wis. 2d at 412).
¶46 Here——just like the property owners in 118th Street
and Jantz——Hoffer did not lose its direct access points to the
highway because of the taking of the .72 acre of its land;
rather, it lost its direct access points due to DOT's decision
to restrict access to STH 19 as part of the STH 26 relocation
23
The issue in 118th Street was whether diminution of value
caused by the relocation of (and the LLC's consequent loss of
direct access to) 118th Street should be included in the
compensation for the taking of a temporary limited easement
under Wis. Stat. § 32.09(6)(g) when the temporary limited
easement was used to create additional access to the property.
34
No.2012AP2520
project. Two separate acts occurred: (1) the taking of Hoffer's
.72 acre, and (2) the elimination of Hoffer's direct access
points to STH 19 pursuant to the police power. None of Hoffer's
access points were on the land taken. Hoffer has consistently
argued that the diminution of value to the property was caused
by the loss of direct access to STH 19, not by the taking of the
.72 acre. The diminution of value of Hoffer's property was not a
consequence of the taking of the .72 acre, and accordingly those
damages should not be included in the compensation for the .72
acre taken.
V. CONCLUSION
¶47 First, we hold that Wis. Stat. § 84.25(3) authorizes
DOT to change Hoffer's access to STH 19 in whatever way it deems
"necessary or desirable." Such changes, including elimination of
direct access points, are duly authorized exercises of the
police power and are not compensable under Wis. Stat. § 32.09 as
long as alternate access is given that does not deprive the
abutting owner of all or substantially all beneficial use of the
property. Second, we hold that when DOT changes an abutting
property owner's access to a controlled-access highway but other
access is given or exists, the abutting property owner is
precluded from compensation pursuant to Wis. Stat. § 32.09(6)(b)
as a matter of law and no jury determination of reasonableness
is required. Reasonableness is the wrong standard to apply
because the provision of some access preserves an abutting
property owner's right of access to a controlled-access highway,
and thus no taking compensable under Wis. Stat. § 32.09(6)(b)
35
No.2012AP2520
occurs. Accordingly, Hoffer is precluded from compensation under
Wis. Stat. § 32.09(6)(b) because alternate access to the
property was provided by the Frohling Lane extension. We
therefore affirm the court of appeals.
By the Court.—The decision of the court of appeals is
affirmed.
¶48 REBECCA G. BRADLEY, J., did not participate.
36
No. 2012AP2520.ssa
¶49 SHIRLEY S. ABRAHAMSON, J. (concurring). I conclude,
as does Justice Gableman's lead opinion, that the elimination of
direct access from Hoffer's property to State Highway 19 is a
duly authorized exercise of the police power and is not
compensable under Wis. Stat. § 32.09.1¶50 I do not, however, join Justice Gableman's long,
complex opinion.
¶51 The lead opinion is, for example, unnecessarily
replete with discussion of when the elimination of direct access
to a controlled access highway may support a claim for inverse
condemnation,2 "depriv[ing] the abutting owner of all or
substantially all beneficial use of the property."3
¶52 The parties' references to inverse condemnation are
cursory, not full or adversarial. As a result, I would not
discuss inverse condemnation. "The rule of law is generally
best developed when matters are tested by the fire of
adversarial briefs and oral arguments." Maurin v. Hall, 2004 WI
100, ¶120, 274 Wis. 2d 28, 682 N.W.2d 866 (Abrahamson, C.J. &
Crooks, J., concurring) overruled on other grounds by
Bartholomew v. Wis. Patients Comp. Fund, 2006 WI 91, 293
Wis. 2d 38, 717 N.W.2d 216.
¶53 For the reasons set forth, I do not join the lead
opinion and I write separately.
1
Only two justices join Justice Gableman's opinion.
2
See, e.g., lead op., ¶¶6, 16-17, 20 n.12, 22, 33.
3
Lead op., ¶6.
1
No. 2012AP2520.ssa
¶54 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
2
No. 2012AP2520.dtp
¶55 DAVID T. PROSSER, J. (dissenting). The petitioner
in this case, Hoffer Properties, LLC (Hoffer), asks the
following question: "What is the standard as to when DOT must
pay compensation when it has eliminated an abutting property
owner's direct access to an existing controlled-access state
trunk highway?" Hoffer's answer is that the DOT must pay
compensation when a jury finds that the replacement access
provided by DOT is not reasonable.
¶56 The circuit court answered the question differently.
It denied Hoffer a jury, concluding as a matter of law that no
compensation is required if DOT provided any replacement access
to the owner. This position is supported by the State in its
brief: "Under Wisconsin law, damage resulting to property
through the exercise of the police power is not compensable.
There is no compensable taking when direct access to a
controlled-access highway is denied as long as other access is
given or otherwise exists."
¶57 The lead opinion concludes that "when DOT changes an
abutting property owner's [direct] access to a controlled-access
highway but other access is given or exists, the abutting
property owner is precluded from compensation . . . as a matter
of law and no jury determination of reasonableness is required."
Lead op., ¶6. The lead opinion adds that "[r]easonableness is
the wrong standard to apply" because the provision of "some"
access preserves the property owner's right of access; thus, no
taking occurs. Id.1
No. 2012AP2520.dtp
¶58 The implications of this decision are stark.
Henceforward, juries are precluded from ever finding that the
alternative access provided to replace direct access to a
controlled-access highway is unreasonable. By transforming a
traditional fact question into a question of law, the court
justifies depriving property owners of their statutory right to
a jury trial and also bars circuit judges from ever finding that
alternative access is not reasonable. According to the lead
opinion, the only time the DOT is required to pay compensation
to a property owner for eliminating direct access to a
controlled-access highway is when the alternative access is so
circuitous or so grossly inadequate that it deprives "the
abutting owner of all or substantially all beneficial use of the
property." Id., ¶20 n.12.
¶59 Because I disagree with the lead opinion's analysis
and conclusions, I respectfully dissent.
I
¶60 State Trunk Highway 19 (STH 19) is a Wisconsin highway
that stretches from a point near Mazomanie in Dane County to the
point where it reaches STH 16 on the east side of Watertown in
Jefferson County. Its total length is about 60 miles. On June
14, 2002, the DOT designated 13.76 miles of STH 19 as
"controlled-access" highway, pursuant to Wis. Stat. § 84.25.
The eastern end of the controlled-access segment in Jefferson
County was Frohling Lane in the Town of Watertown, west of the
City of Watertown.
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¶61 Hoffer owned a 9.90-acre parcel of land abutting STH
19. This parcel is located south of STH 19. It is separated
from Frohling Lane to its east by another parcel of land. When
STH 19 became a "controlled-access" highway in 2002, Hoffer
retained direct access to STH 19 by means of two driveways.
¶62 Then, as the lead opinion notes, in 2008 the DOT
undertook a highway improvement project that relocated STH 26 so
that it intersected with STH 19 just west of Hoffer's property.
Lead op., ¶8. On December 29, 2008, as part of this project,
DOT eliminated Hoffer's direct access to STH 19. DOT
acquired through eminent domain both .72 acre of
Hoffer's land as well as a temporary limited easement
in order to create alternate access to Hoffer's
property. DOT tendered to Hoffer $90,000 for this
taking. Hoffer's existing direct access to STH 19 was
replaced by extending Frohling Lane (a north-south
roadway that intersects with STH 19) westward to
Hoffer's property.
Id.¶63 The DOT remedied its elimination of Hoffer's direct
access by extending Frohling Lane to the west, through the
entire width of Hoffer's property, so that Hoffer would have
access to his house and business from the south after a new
driveway was constructed, and the large parcel to the west of
Hoffer's property would have access to STH 19 by way of this new
road. The extension of Frohling Lane is now called Groth Lane.
¶64 "Hoffer's replacement access requires vehicles to
travel roughly 1,000 feet to reach STH 19." Id. The
owners/occupiers of the adjacent parcel to the west presumably
must travel a considerably longer distance to reach STH 19.
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¶65 To reach Hoffer's property, a person traveling east on
STH 19 must turn right on Frohling Lane, drive to the end of the
lane, turn right on Groth Lane, find the driveway for Hoffer's
property, and then turn right into that driveway. Thus, as a
practical matter, the distance to be travelled is not the only
consideration in evaluating whether an alternative access is
reasonable. Multiple factors may have to be taken into account.
¶66 On the facts here, I would have no difficulty in
affirming a jury determination that DOT had provided reasonable
access to Hoffer's property. The new access is no doubt
inconvenient. It may require special signage. But it is not
unreasonable in the totality of the circumstances.
¶67 My problem is not with the result in this case. My
problem is with the law created in this case——approving the fact
that a jury was never permitted to hear evidence and make a
judgment. The lead opinion says in essence that there is no
place for a jury in these situations——that the result would be
the same if the new access required vehicles to travel 10,000
feet——closer to two miles——instead of 1,000 feet, to reach
STH 19. The lead opinion says that "reasonableness" is the
wrong standard to apply in such situations because whatever the
DOT deems "necessary or desirable" cannot be found unreasonable
as a matter of law. In my view, this is ill-advised new law.
II
¶68 This court has stated that "a person who owns property
abutting a public street has a right of access, or right of
ingress and egress, to and from the street. . . . [A]lthough
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No. 2012AP2520.dtp
this right is subject to reasonable regulations in the public
interest, it is a property right, the taking of which requires
compensation." Nat'l Auto Truckstops, Inc. v. State, Dep't of
Transp., 2003 WI 95, ¶39, 263 Wis. 2d 649, 665 N.W.2d 198(quoting Narloch v. State, Dep't of Transp., 115 Wis. 2d 419,
430, 340 N.W.2d 542 (1983)). For this proposition, Narloch
cited Schneider v. State, 51 Wis. 2d 458, 463, 187 N.W.2d 172(1971). Schneider, in turn, had cited Carazalla v. State, 269
Wis. 593, 70 N.W.2d 208, 71 N.W.2d 276 (1955), and Stefan Auto
Body v. State Highway Commission, 21 Wis. 2d 363, 124 N.W.2d 319(1963). The principle above is codified in Wis. Stat.
§ 32.09(6)(b).
¶69 Paragraph (b), however, also contains a qualification
to the principle: compensation is required for "[d]eprivation or
restriction of [an] existing right of access to [a] highway from
abutting land, provided that nothing herein shall operate to
restrict the power of the state . . . to deprive or restrict
such access without compensation under any duly authorized
exercise of the police power." (Emphasis added.) Deprivations
and restrictions pursuant to Wis. Stat. § 84.25 are exercises of
the police power.
¶70 Put bluntly, the state does not have to pay
compensation for depriving a landowner of direct access to a
controlled-access highway. It does not follow, however, that
reliance on the police power precludes altogether any need for
compensation. Although paragraph (b) does not say so, it is
universally agreed that the deprivation of direct access cannot
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No. 2012AP2520.dtp
leave the property landlocked. See Carazalla, 269 Wis. at 608b.
Some access must be provided to avoid the necessity of
compensation. The issue presented by this opinion is whether no
compensation is required if DOT provides any alternative access—
—even if that alternative access is plainly unreasonable——so
long as the property owner cannot meet the requirements for
inverse condemnation.
¶71 The State's position is uncompromising: "[D]amage
resulting to property through the exercise of the police power
is not compensable. There is no compensable taking when direct
access to a controlled-access highway is denied as long as other
access is given or otherwise exists." The lead opinion adopts
this position.
¶72 Other judges have been less absolute. For example,
Justice Oliver Wendell Holmes, writing for the Supreme Judicial
Court of Massachusetts, stated:
We assume that one of the uses of the convenient
phrase "police power" is to justify those small
diminutions of property rights which, although within
the letter of constitutional protection, are
necessarily incident to the free play of the machinery
of government. It may be that the extent to which
such diminutions are lawful without compensation is
larger when the harm is inflicted only as incident to
some general requirement of public welfare. But,
whether the last-mentioned element enters into the
problem or not, the question is one of degree, and
sooner or later we reach the point at which the
constitution applies and forbids physical
appropriation and legal restrictions alike, unless
they are paid for.
Bent v. Emery, 53 N.E. 910, 911 (Mass. 1899) (emphasis added).
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No. 2012AP2520.dtp
¶73 Hoffer persuasively demonstrates that the spirit
conveyed by Justice Holmes has run through Wisconsin law in
cases involving controlled-access highways. Hoffer cites
Schneider, 51 Wis. 2d 458; Surety Savings & Loan Ass'n v. State
(Division of Highways), 54 Wis. 2d 438, 195 N.W.2d 464 (1972);
Jantz v. State (Division of Highways), 63 Wis. 2d 404, 217
N.W.2d 266 (1974); and Seefeldt v. State, Department of
Transportation, 113 Wis. 2d 212, 336 N.W.2d 182 (Ct. App. 1983).
These cases were preceded by Carazalla, 269 Wis. 593, and Nick
v. State Highway Commission, 13 Wis. 2d 511, 109 N.W.2d 71, 111
N.W.2d 95 (1961). These cases will be discussed in
chronological order.
Carazalla v. State (1955)
¶74 In Carazalla, Justice George Currie provided a broad
statement of the law:
The general rule is that damage resulting to
property through the exercise of the police power is
not compensable. We consider the following statement
appearing in 11 McQuillin, Mun. Corp. (3d ed.), p.
319, sec. 32.27, to be particularly pertinent to the
facts of the instant case:
"The question of what constitutes a taking is
often interwoven with the question of whether a
particular act is an exercise of the police power or
of the power of eminent domain. If the act is a
proper exercise of the police power, the
constitutional provision that private property shall
not be taken for public use, unless compensation is
made, is not applicable."
Limited-access highways and their effect upon the
rights of abutting property owners to compensation are
the subject of three excellent law-review articles in
which are cited the court decisions bearing on the
question. The authors of all three articles agree
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No. 2012AP2520.dtp
that the limiting of access to a public highway
through governmental action results from the exercise
of the police power, and that in the case of a newly
laid out or relocated highway, where no prior right of
access existed on the part of abutting landowners,
such abutting landowners are not entitled to
compensation. On the other hand, the authorities
cited in these articles hold that where an existing
highway is converted into a limited-access highway
with a complete blocking of all access from the land
of the abutting owner, there results the taking of the
pre-existing easement of access for which compensation
must be made through eminent domain. However, if the
abutting landowner's access to the highway is merely
made more circuitous, no compensation should be paid
according to the authors of these articles . . . . In
the instant case the plaintiff landowners still have
their right of access to old U.S. Highway 51 which has
not been closed off.
Carazalla, 269 Wis. at 608a-608b (emphasis added; footnotes
omitted). In my view, Carazalla implied that alternative access
that is merely "more circuitous" is reasonable. It does not
address what might be unreasonable.
Nick v. State Highway Commission (1961)
¶75 Petitioner acquired property in Waukesha County
abutting STH 30, a controlled access highway, also known as
Bluemound Road. There had never been driveways from the parcel
directly onto Highway 30. The petitioner was denied access to
Highway 30. Justice Timothy Brown wrote:
An impairment of the use of property by the
exercise of police power, where the property itself is
not taken by the state, does not entitle the owner of
such property to a right to compensation. The law on
this subject remains as we stated it in State ex rel.
Carter v. Harper (1923), 182 Wis. 148, 153, 196 N.W.
451,——a zoning case,
". . . incidental damage to property resulting
from governmental activities, or laws passed in the
promotion of the public welfare, is not considered a
8
No. 2012AP2520.dtp
taking of the property for which compensation must be
made."
The situation here bears a close analogy to the
enactment and the effect of a zoning statute.
. . . .
Neither in 1951 nor thereafter . . . did the
state, through its highway commission, take any
portion of Reinders' land. No doubt the control of
his access to Highway 30 impaired the value of his
land, the impairment increasing as any part of the
land lay distant from Calhoun road, but at the time of
the commission's declaration Reinders still had access
in every part of his land to Highway 30 via use of
Calhoun road. His access to the highway is made more
circuitous but no part of Reinders' land was taken.
The diminution of its value due to the exercise by the
state of its police power in making Highway 30 a
controlled-access highway is not recoverable.
Nick, 13 Wis. 2d at 514-15 (first alteration in original;
emphasis added).
¶76 Justice George Currie concurred, recognizing that
Wisconsin's less-generous position on compensation appeared to
represent a minority view:
Courts which hold that compensation must be paid
to the abutting landowner in all cases where all
direct-access rights to an existing highway are barred
by statute, even though indirect access exists by
means of service roads or connecting highways,
consider that access rights constitute property
distinct and apart from the land to which they
appertain. The writer of this opinion believes this
to be erroneous and that highway-access rights are but
one of a bundle of rights which appertain to a parcel
of real estate.
. . . If by reason of providing a frontage road,
or the existence of a previously existing connecting
highway, there is reasonable access to the controlled-
access highway, no taking requiring compensation
should be held to have occurred.
Id. at 517-18 (Currie, J., concurring) (emphasis added).
9
No. 2012AP2520.dtp
¶77 In Nick, the court approved "incidental damage" to
property by exercise of the police power. In addition, "more
circuitous" access to a controlled-access highway is very likely
to satisfy Justice Currie's "reasonable access." The opinion
implicitly recognizes but does not define "unreasonable" access.
Schneider v. State (1971)
¶78 Justice Connor T. Hansen wrote:
The creation of a controlled-access highway is a
proper exercise of the police power. This court has
held that the exercise of the police power allows
injury to property without compensation. Where access
to a highway is controlled under the exercise of the
police power and reasonable access remains, no
compensation is required.
. . . The right of access or of ingress and
egress of an abutting property owner is a property
right the taking of which requires compensation.
However, there was no issue in this case concerning
the adequacy of access from the Schneider property by
the frontage road. Since the state provided
reasonable access to and from the Schneider property
by a frontage road there was no taking requiring
compensation.
. . . .
. . . Deprivation of direct access to a highway
does not constitute a taking of property provided
reasonable access remains.
Schneider, 51 Wis. 2d at 462-63 (emphasis added; citations
omitted).
¶79 The court in Schneider used the phrase "reasonable
access" five times in stating the law, implying that
"unreasonable access" does not satisfy the law.
Surety Savings & Loan Ass'n v. State (Division of Highways)
(1972)
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No. 2012AP2520.dtp
¶80 Justice Leo Hanley wrote for the court:
The sole issue presented on this appeal is whether
appellants should be compensated for damages suffered
because of the termination of their right to direct
access to U.S. Highway 41. . . . [I]njury to property
resulting from the exercise of the police power of the
state does not necessitate compensation.
. . . The designation of a highway as a
controlled-access highway is an exercise of the police
power.
This court has frequently held . . . that there
is no compensable taking when direct access to a
controlled-access highway is denied, where other
access is given or otherwise exists. Since the
department in this case granted reasonable access to a
service road when it terminated direct access to the
highway, under the foregoing rules of law, the
appellants are not entitled to compensation for the
termination of their direct access.
. . . There is no suggestion that the frontage
road access furnished is inadequate or unreasonable.
. . . .
We conclude that appellants have no right to be
compensated, under the provisions of sec. 32.09(6)(b),
Stats., merely because access to their property has
been made more circuitous.
Surety Savings, 54 Wis. 2d at 442-44, 446 (emphasis added;
citations omitted).
¶81 It should be noted that the makeup of the Surety
Savings court was exactly the same as the makeup of the
Schneider court and that the Surety Savings opinion cites
Carazalla, Nick, and Schneider with approval. Where a property
owner suggests that alternative access is not reasonable, the
court cannot ignore the issue.
Jantz v. State (Division of Highways) (1974)
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No. 2012AP2520.dtp
¶82 In Jantz Justice Robert W. Hansen quoted Schneider v.
State at length, including this statement: "It [Schneider]
repeats that the '. . . [d]eprivation of direct access to a
highway does not constitute a taking of property provided
reasonable access remains. . . .'" Jantz, 63 Wis. 2d at 410(all alterations but first in original) (quoting Schneider, 51
Wis. 2d at 463). The Jantz majority again invoked the
"reasonable access" test two years after the Surety Savings
case.
Seefeldt v. State, Department of Transportation (1983)
¶83 Judge Clair Voss of the court of appeals wrote:
Initially, appellants had access to U.S. Highway 41.
When U.S. Highway 41 was declared a controlled-access
highway, the appellants' access was reduced to
reasonable access. Now, the appellants allege that
even this reasonable access is being taken away as the
result of the taking of appellants' real estate in
conjunction with the upgrading of U.S. Highway 41 to
freeway status.
In general terms, the issue is whether the
appellants have suffered a loss. However, the real
issue is whether the state can use a two-stage
approach to deprive landowners of their reasonable
access to a highway without compensating them for this
loss. We find that the appellants have suffered a
loss because of this two-stage taking and, thus,
should be compensated.
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No. 2012AP2520.dtp
Seefeldt, 113 Wis. 2d at 213-14 (emphasis added).1
¶84 These cases may be summed up as follows: There is
normally a distinction between an exercise of police power and
eminent domain. The general rule is that damage resulting to
property through an exercise of police power is not compensable.
This general rule will prevail in any case involving a property
owner's loss of direct access to a controlled-access highway as
long as some reasonable access remains. This principle is found
in Nick, Schneider, Surety Savings, Jantz, and Seefeldt. It is
either stated directly or implied by reference to facts that
demonstrate reasonable alternative access. The fact that
alternative access is "circuitous" or "more circuitous" than
before the deprivation does not render that access unreasonable
per se. Something more deleterious is required. Although this
court has never held that a particular exercise of the police
1
Recently, the Supreme Court of South Dakota evaluated a
similar two-stage taking situation in Hall v. State ex rel.
South Dakota Department of Transportation, 806 N.W.2d 217 (S.D.
2011). Property owners sought compensation after the state
removed an interstate highway interchange adjacent to their
property; a truck stop they operated on the property ceased
operations within weeks of the interchange closure. Hall, 806
N.W.2d at 220-21. The property owners argued that they had
relied upon the presence of the interchange to operate their
business and that, when the state originally condemned a portion
of their property to build the interstate highway, the appraisal
used to calculate just compensation had assumed "that 'the
presence of the interchange' would be a 'significant' and
'special benefit' to the Property." Id. at 220. Agreeing with
that reliance argument, the court concluded that "an abutting
property owner may acquire a compensable right of access to a
controlled-access highway when access is designated and used to
settle or mitigate damages in a condemnation, but that access is
later removed." Id. at 226.
13
No. 2012AP2520.dtp
power left a property owner with only unreasonable access to his
or her property, the broad scope of reasonableness does not
preclude a finding of unreasonableness in specific
circumstances.
¶85 This summary of the case law is simply inconsistent
with the lead opinion. Consequently, either this summary is
wrong or the lead opinion is making new law. I believe the lead
opinion is making new law.
III
¶86 The lead opinion appears a bit uncomfortable with its
decision to abandon "reasonable" access. It tries to hide the
severity of its ruling by offering the fig leaf of inverse
condemnation. This remedy is simply not adequate.
¶87 Generally, a property owner who brings an inverse
condemnation claim under Wis. Stat. § 32.10 can recover
compensation by demonstrating that a restriction on use amounts
to a regulatory taking that "den[ies] the property owner all or
substantially all practical uses of a property." Brenner v. New
Richmond Reg'l Airport Comm'n, 2012 WI 98, ¶45, 343 Wis. 2d 320,
816 N.W.2d 291 (citing Eberle v. Dane Cnty. Bd. of Adjustment,
227 Wis. 2d 609, 622, 595 N.W.2d 730 (1999)); see Just v.
Marinette Cnty., 56 Wis. 2d 7, 15, 201 N.W.2d 761 (1972)
("Whether a taking has occurred depends upon whether 'the
restriction practically or substantially renders the land
useless for all reasonable purposes.'" (quoting Buhler v. Racine
Cnty., 33 Wis. 2d 137, 143, 146 N.W.2d 403 (1966))).
14
No. 2012AP2520.dtp
¶88 But even property owners burdened by plainly
unreasonable access will struggle to demonstrate that the
remaining access renders the property substantially useless for
all reasonable purposes. No matter how outrageously
inconvenient a means of access might be, the property owner will
still retain some ability to access the property. Unreasonably
inconvenient access does not necessarily mean that a property is
substantially useless. A use based standard for inverse
condemnation is fundamentally incompatible with a claim of
unreasonable access because any access at all likely ensures
that the property owner retains the ability to use the property.
¶89 In my view, whether alternative access is reasonable
or unreasonable is a matter of degree, the determination of
which should be submitted to a jury. "[W]hether a change in
access is 'reasonable' . . . is a question for a jury." Nat'l
Auto Truckstops, 263 Wis. 2d 649, ¶21; Narloch, 115 Wis. 2d at
433-34; Bear v. Kenosha Cnty, 22 Wis. 2d 92, 96, 125 N.W.2d 375(1963).
¶90 The right to trial by jury in these cases is embedded
in Wis. Stat. § 32.05, especially in subsection (10) paragraph
(a), subsection (11), and subsection (12). Trial by jury serves
as a vital check by an impartial fact finder on the exercise of
government power.
¶91 There is a great chasm between reasonable access and
access so deficient that it constitutes inverse condemnation.
The lead opinion permits government officials to push property
owners into that chasm without compensation. That is contrary
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No. 2012AP2520.dtp
to the spirit with which our statutes ought to be administered.
It is ominous when the check of trial by jury disappears, as
well.
¶92 For the reasons stated, I respectfully dissent.
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No. 2012AP2520.dtp
1