Michael J. Meyers v. Wisconsin Department of Transportation ( 2023 )

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
July 20, 2023
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.
Appeal No. 2022AP428 Cir. Ct. No. 2017CV123
STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV
MICHAEL J. MEYERS,
PLAINTIFF-APPELLANT,
V.
WISCONSIN DEPARTMENT OF TRANSPORTATION,
DEFENDANT-RESPONDENT.
APPEAL from an order of the circuit court for Vilas County:
LEON D. STENZ, Judge. Affirmed.
Before Blanchard, P.J., Graham, and Nashold, JJ.
¶1 GRAHAM, J. Michael J. Meyers, who owns commercial property in
northern Wisconsin that abuts a highway, appeals a circuit court order granting
summary judgment in favor of the Wisconsin Department of Transportation (the
Department). The summary judgment order resulted in the dismissal of three “right-
No. 2022AP428
to-take” claims that Meyers made pursuant to WIS. STAT. § 32.05(5) (2020-21).1
Specifically, Meyers challenged: (1) the Department’s elimination of two curb cuts
that Meyers had used to access the highway from his property; (2) a Department
order requiring the removal of a sign; and (3) the Department’s alleged creation and
enlargement of an easement that allowed an adjoining parcel to access and use a
driveway on Meyers’ property. Meyers also alleges that the Department’s actions
and the circuit court proceedings violated his due process rights. We conclude that
the circuit court properly granted summary judgment to the Department on Meyers’
right-to-take claims, and that Meyers’ due process arguments fail. We therefore
affirm.
BACKGROUND
¶2 The parcel that Meyers owned when he commenced this lawsuit (“the
Meyers parcel”)2 is located in Vilas County and is bordered to the west by U.S.
Highway 51. Starting in 2006, the Department undertook a project to significantly
reconstruct portions of Highway 51, and the Department’s actions in this
reconstruction project are the subject of Meyers’ complaint. The following facts are
taken from the summary judgment materials and, as discussed below, are not subject
to any genuine material dispute.
¶3 Before October 2000, the property that became the Meyers parcel was
part of a larger tract of land that was owned by Meyers’ predecessor in interest,
1
All references to the Wisconsin Statutes are to the 2020-21 version.
2
As mentioned below, Meyers quit claimed a portion of his parcel to another party in
2020, while this lawsuit was pending in the circuit court. We refer to the entirety of the parcel
Meyers owned when he commenced this lawsuit as “the Meyers parcel,” except when necessary to
distinguish between the portion of the parcel that he sold from the portion that he owned after the
sale.
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Indymac Mortgage, LLC. At that time, there were three driveways on the property
that provided direct access to US Highway 51—a permitted driveway on the
northern portion of the property’s western boundary line (“the northern driveway”);
and two unpermitted curb cuts on the southern portion of that boundary line (“the
curb cuts”).
¶4 In October 2000, Indymac divided the property into two smaller lots,
one generally to the east, and the second (which would become the Meyers parcel)
generally to the west. Indymac recorded a certified survey of the two lots (“the 2000
survey”) with the register of deeds. The 2000 survey noted restrictions on both lots’
rights of vehicular egress to and ingress from Highway 51. Specifically, access was
limited to the two “proposed driveways” on the lot that would become the Meyers
parcel—the existing northern driveway was identified as a proposed driveway as
well as an additional southern driveway (“the southern driveway”), but the two
existing curb cuts were not. The 2000 survey also noted an access easement over a
corner of the Meyers parcel, which would allow the owner of the other lot to access
the northern driveway.
¶5 In April 2002, the Department declared a segment of Highway 51,
including the portion that abutted these two lots, a controlled access highway
pursuant to WIS. STAT. § 84.25. That designation was memorialized in a document
that was recorded with the register of deeds.
¶6 Several months later in October 2002, Meyers purchased the Meyers
parcel. As of that date, the Meyers parcel was served by the three driveways
discussed above—the permitted northern driveway and the two unpermitted curb
cuts to the south.
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¶7 Following the Department’s controlled access designation and its
implementation of access controls pursuant to WIS. STAT. § 84.25, all existing
driveway permits were superseded and replaced with access authorizations. In 2004
and 2005, the Department recorded several documents with the register of deeds
regarding the Meyers parcel’s access to Highway 51. These documents recognized
the existing access controls placed on the property in the 2000 survey, and provided
authorizations for the two access points that had been identified as “proposed
driveways” in the 2000 survey—a northern access point in the location of the
existing northern driveway, and a southern access point in the location of the
proposed southern driveway, between the two unauthorized curb cuts.
¶8 In 2006, the Department started planning for the reconstruction
project, which would make improvements and upgrades to Highway 51. As a part
of that project, the Department reviewed the access points along Highway 51 and
identified several for potential elimination, including the unauthorized curb cuts on
the Meyers parcel.
¶9 Between 2012 and 2015, Meyers spoke with Department staff on
several occasions regarding access to Highway 51. Meyers indicated that he would
send materials with specific requests, but the Department never received any such
materials.
¶10 In September 2015, the Department sent a letter to Meyers informing
him of its plans regarding the parcel’s access to Highway 51. Specifically, the
Department proposed to retain the northern driveway, and to construct the southern
driveway in the location that had been identified as a proposed driveway in the 2000
survey. The Department also proposed to eliminate the curb cuts. The letter cited
the access restrictions noted in the 2000 survey and WIS. STAT. § 84.25 as
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authorization for the Department’s action. It indicated that the Department was
willing to discuss with Meyers the possibility of relocating the southern driveway
to an agreed-upon location, but Meyers never made any such request.
¶11 Separately, the Department also determined that it needed to acquire
a portion of the Meyers parcel through eminent domain. Between April 2016 and
July 2017, the Department attempted to negotiate with Meyers regarding this
acquisition, but the parties did not come to an agreement regarding the amount of
compensation. In July 2017, the Department served Meyers with a jurisdictional
offer, which offered approximately $35,000 to pay for a temporary limited easement
on 0.202 acres and to purchase 0.219 acres outright. The Department ultimately
acquired this property using its eminent domain authority, and Meyers’ claims in
this lawsuit do not directly relate to this acquisition.
¶12 Meanwhile, on May 12, 2017, the Department had also issued an
order requiring Meyers to remove a sign on his parcel that, according to the
Department, violated WIS. STAT. § 84.30 and WIS. ADMIN CODE ch. TRANS 201
(Feb. 2005). The sign-removal order informed Meyers that he had the right to
appeal “by filing a written request for a hearing [with the state division of hearings
and appeals] within 30 days of the date of this order.” Meyers filed a request for a
hearing that was dated June 15, 2017, postmarked the following day, and received
by the agency on June 19, 2017. The agency ultimately denied Meyers’ request for
a hearing on the ground that it was untimely, and Meyers did not seek administrative
or judicial review of that determination.
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¶13 In August 2017, Meyers, proceeding pro se, filed a lawsuit against the
Department raising claims under WIS. STAT. § 32.05(5).3 Meyers’ complaint
challenged the Department’s authority to “take” his curb cuts, his sign, and the
portion of his parcel that is subject to the access easement that benefits the adjoining
lot “without identifying which statute [the Department was] relying on” and without
paying just compensation. Meyers alleged that he could not properly challenge
these takings until the Department disclosed the statutes that gave it the authority to
take his property. We provide additional information about Meyers’ three claims in
the discussion section below.
¶14 In September 2017, with Meyers’ lawsuit pending, the Department
commenced work on the reconstruction project. At some later point, the
Department constructed the northern driveway and the southern driveway consistent
with its September 2015 letter, and it removed the two unauthorized curb cuts on
Meyers’ property. The Department also removed Meyers’ sign.
¶15 Meyers’ lawsuit remained pending in the circuit court with little
progress over the next several years. We discuss the various causes of this delay in
greater detail below; for now, it suffices to say that the court granted a series of
adjournments at Meyers’ request or with his approval between February 2018 and
April 2019 to allow Meyers to attempt to negotiate a resolution with the Department.
Then, in July 2019, after the curb cuts were eliminated, Meyers asked “that matters
3
Meyers’ complaint also named Right of Way Professionals, Inc. as a defendant, but the
parties later stipulated to that party’s dismissal. Meyers amended his complaint in September 2017,
but the differences between the original complaint and the amended complaint are not material to
our analysis. When we refer to Meyers’ complaint in this opinion, we are referring to the amended
complaint that Meyers filed in September 2017, which is the operative pleading in this case.
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be put on hold” and the process “slow[ed] down” until Meyers retained an attorney
to represent him in the lawsuit.
¶16 On September 1, 2020, with this lawsuit still pending, Meyers quit
claimed a portion of his parcel that included the northern driveway to another party.
Following this transaction, the remaining portion of the Meyers parcel had a single
direct access point to Highway 51: the southern driveway that the Department had
constructed as a part of the reconstruction project.
¶17 On November 30, 2021, Meyers and the Department filed cross-
motions for summary judgment. Following briefing and a hearing, the circuit court
concluded that there were no genuine disputes of material fact and that the
Department was entitled to judgment on Meyers’ three claims. Accordingly, the
court entered an order that granted the Department’s motion for summary judgment,
denied Meyers’ motion for summary judgment, and dismissed Meyers’ claims.
Meyers appeals the portion of the court’s order that granted the Department’s
motion and dismissed his claims.
DISCUSSION
¶18 Summary judgment should be granted when there is no genuine
dispute of material fact and “a party is entitled to judgment as a matter of law.”
McKee Fam. I, LLC v. City of Fitchburg, 2017 WI 34, ¶27, 374 Wis. 2d 487, 893
N.W.2d 12. We review summary judgment decisions independently from the circuit
court, applying the same methodology as that court. Id. “The first step of that
methodology requires us to examine the pleadings to determine whether a claim for
relief has been stated.” Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401
N.W.2d 816 (1987). “If a claim for relief has been stated, the inquiry then shifts to
whether any factual issues exist.” Id. “Under [WIS. STAT. §] 802.08(2), summary
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judgment must be entered ‘if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.’” Id. (citation omitted).
¶19 We begin our analysis with an overview of the statutory and
constitutional framework governing the Department’s authority. We then turn to
Meyers’ claims, explaining why the Department is entitled to judgment on each of
the claims as a matter of law. Finally, we address various due process and
constitutional arguments that Meyers advances on appeal.
I. Constitutional and Statutory Framework
¶20 Whenever the Department undertakes a highway construction project,
its actions may affect the property rights of abutting property owners. See generally
DEKK Property Dev., LLC v. DOT, 2023 WI 30, ¶¶13-16, 406 Wis. 2d 768, 988
N.W.2d 653. In such instances, the process used by the Department, the property
owner’s recourse for challenging the Department’s actions, and the remedies
available to the property owner all hinge on the “the nature of the challenged
governmental action.” Id., ¶15.
¶21 The Department may determine that it is necessary to take private
property using its eminent domain authority, and if it does, it must pay for that
property. See id., ¶13. This is because the government may not take private
property for public use without paying just compensation. U.S. CONST. amend. V;
WIS. CONST. art. I, § 13. Under the Wisconsin Constitution, government action
constitutes a “taking” if it is “‘an actual physical occupation’ of private property,”
or if it is a restriction on private property “that deprives an owner ‘of all, or
substantially all, of the beneficial use of [the owner’s] property.’” E-L Enterprises,
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No. 2022AP428
Inc. v. Milwaukee Metro. Sewerage Dist., 2010 WI 58, ¶22, 326 Wis. 2d 82, 785
N.W.2d 409 (citation omitted). The latter category is often referred to as a
“regulatory taking.”4 Id., ¶23.
¶22 When the Department exercises its eminent domain authority to take
private property, it must follow the procedures set forth in WIS. STAT. § 32.05. That
statute requires, among other things, that the Department obtain an appraisal of the
property; provide the appraisal report to the owner; attempt to negotiate with the
owner; and, if negotiations are unsuccessful, issue a “jurisdictional offer to purchase
the property” that describes the property being taken and the compensation being
offered. DEKK Property Dev., 406 Wis. 2d 768, ¶14; see also § 32.05(2)(a), (3).
¶23 If a property owner rejects the jurisdictional offer, the owner may seek
recourse under a variety of statutes. Id., ¶15 & n.4. If the owner wishes to contest
the amount of compensation offered, the owner may file an action under WIS. STAT.
§ 32.05(9) seeking additional compensation. Alternatively, if the owner wishes to
contest the Department’s right to take property “described in the jurisdictional offer”
for a reason other than the amount of compensation offered, the owner may file a
right-to-take action under § 32.05(5). Id., ¶15 (citing TFJ Nominee Tr. v. DOT,
2001 WI App 116, ¶¶25-26, 244 Wis. 2d 242, 629 N.W.2d 57).
4
Similarly, under the United States Constitution, government conduct gives rise to a
taking when there is “either: (1) ‘direct government appropriation or physical invasion of private
property’ or (2) government regulation of private property that is ‘so onerous that its effect is
tantamount to a direct appropriation.’” E-L Enterprises, Inc. v. Milwaukee Metro. Sewerage Dist.,
2010 WI 58, ¶22, 326 Wis. 2d 82, 785 N.W.2d 409 (citation omitted) (explaining that “[t]he latter
category, deemed a ‘regulatory taking,’ is per se compensable under the Fifth Amendment if the
regulation ‘requires an owner to suffer a permanent physical invasion of her property’ or
‘completely deprives an owner of all economically beneficial use of her property.’” (citation
omitted)).
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¶24 By contrast, when the government takes private property without
issuing a jurisdictional offer and without paying just compensation, the property
owner’s recourse is to file an inverse condemnation claim pursuant to WIS. STAT.
§ 32.10. Id., ¶33; see also E-L Enterprises, 326 Wis. 2d 82, ¶¶36, 38. This remedy
is available to property owners who allege that the Department took a property right
without properly exercising its eminent domain authority under the procedures set
out in WIS. STAT. § 32.05(5). See TFJ Nominee Tr., 244 Wis. 2d 242, ¶25.
¶25 When the Department undertakes a highway construction project, it
also has authority to take certain actions pursuant to its police power, which is
different from its eminent domain authority. See DEKK Property Dev., 406 Wis.
2d 768, ¶13. The Department acts under its police power “when it regulates in the
interest of public safety, convenience, and the general welfare of the public.” Hoffer
Properties LLC v. DOT, 2016 WI 5, ¶¶17-18, 366 Wis. 2d 372, 874 N.W.2d 533(lead op.) (citing Nick v. State Highway Comm’n, 13 Wis. 2d 511, 513-14, 109
N.W.2d 71 (1961)); id., ¶49 (Abrahamson, J., concurring).
¶26 An injury to property that results from the Department’s exercise of
its police power is generally not compensable, unless the injury amounts to a
regulatory taking because it deprives a property owner of all, or substantially all,
beneficial use of the property. See DEKK Property Dev., 406 Wis. 2d 768, ¶13
(internal citation omitted); Hoffer Properties, 366 Wis. 2d 372, ¶¶17-18 (lead op.)
(explaining that not all injuries to property are considered takings for constitutional
purposes); id., ¶49 (Abrahamson, J., concurring); see also E-L Enterprises, 326
Wis. 2d 82, ¶33 (explaining that mere consequential damage to property is not a
taking).
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¶27 Our supreme court has explained that the Department exercises its
police power, rather than its eminent domain authority, when it designates a
highway as “controlled access.” Hoffer Properties, 366 Wis. 2d 372, ¶20 (lead op.);
id., ¶49 (Abrahamson, J., concurring); see also WIS. STAT. § 84.25(3) (granting the
Department the authority to change access points in whatever way it deems
necessary or desirable after such a designation has been made). And our supreme
court has concluded that “no compensable taking occurs when the Department
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.” Id., ¶31 (lead op.) (citing WIS. STAT. § 32.09(6)(b)
(providing that a deprivation or restriction of existing access rights may be
compensable under § 32.09(6) except where the government acts under a duly
authorized exercise of its police power)); see also id., ¶¶32-33 (lead op.) (internal
citations omitted); id., ¶49 (Abrahamson, J., concurring).5
¶28 In many cases, a highway construction project may involve multiple
discrete acts that do not “necessarily merge … into one single compensable act.”
118th St. Kenosha, LLC v. DOT, 2014 WI 125, ¶33, 359 Wis. 2d 30, 856 N.W.2d
486. Some of the Department’s projects may constitute a compensable exercise of
eminent domain authority and others may involve a non-compensable exercise of
police power. DEKK Property Dev., 406 Wis. 2d 768, ¶13 (citing 118th St.
Kenosha, 359 Wis. 2d 30, ¶32). For each discrete project, the proper recourse
available to a property owner hinges on whether the Department has acted pursuant
to its eminent domain authority, its police powers, or some other authority. See
5
If the access the Department provides to a controlled access highway results in a
regulatory taking, the change in access may support an inverse condemnation claim pursuant to
WIS. STAT. § 32.10. Hoffer Properties, LLC, 2016 WI 5, ¶33, 366 Wis. 2d 372, 874 N.W.2d 533(lead op.); see also E-L Enterprises, 326 Wis. 2d 82, ¶¶36, 38.
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DEKK Property Dev., 406 Wis. 2d 768, ¶13; Hoffer Properties, 366 Wis. 2d 372,
¶¶17-18 (lead op.); id., ¶49 (Abrahamson, J., concurring). “[E]ven 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.” DEKK Property Dev., 406 Wis. 2d 768, ¶15 (internal citation omitted).
II. Meyers’ Claims
¶29 With those principles in mind, we turn to Meyers’ claims. As noted,
Meyers commenced this action under WIS. STAT. § 32.05(5), challenging the
Department’s right to take: (1) two curb cuts that provided access to Highway 51;
(2) a sign; and (3) a portion of the Meyers parcel for an access easement benefiting
the adjoining lot. Meyers’ complaint, summary judgment materials, and appellate
briefing also allege a host of due process violations by the Department, some that
are related to the claims described above and others that stem from the Department’s
conduct during the course of this litigation. On appeal, Meyers’ appellate briefing
contains multiple arguments that the circuit court erred in granting summary
judgment, and it also asserts that aspects of the circuit court proceedings violated
his due process rights.
¶30 We begin by briefly addressing a singular reason, discussed in our
supreme court’s recent decision in DEKK Property Development, 406 Wis. 2d 768,
why all three claims fail as a matter of law. We go on to separately address why
each claim would have failed had Meyers pursued it as an inverse condemnation
claim, discussing some but not all of his due process arguments against the
Department along the way. We conclude by addressing Meyers’ remaining due
process and constitutional claims.
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A. Meyers Claims Are Not Right-to-Take Claims
¶31 As noted, the first step of the summary judgment methodology is to
“examine the pleadings to determine whether a claim for relief has been stated.”
Green Spring Farms, 136 Wis. 2d at 315. Here, the Department is entitled to
judgment on all three of Meyers’ WIS. STAT. § 32.05(5) right-to-take claims for a
singular reason—Meyers cannot obtain relief under § 32.05(5) because the property
rights he alleges were taken were not described in any jurisdictional offer.
¶32 Right-to-take actions are governed by WIS. STAT. § 32.05(5), which
provides, in relevant part:
If an owner desires to contest the right of the condemnor to
condemn the property described in the jurisdictional offer
for any reason other than that the amount of compensation
offered is inadequate, such owner may within 40 days from
the date of personal service of the jurisdictional offer …
commence an action in the circuit court …. Such action shall
be the only manner in which any issue other than the amount
of compensation … may be raised pertaining to the
condemnation of the property described in the jurisdictional
offer.… Nothing in this subsection shall be construed to …
prevent the condemnor from proceeding with condemnation
during the pendency of the action to contest the right to
condemn.
(Emphasis added.)
¶33 As our supreme court explained in a decision issued earlier this year,
such actions “are limited to issues ‘pertaining to the condemnation of the property
described in the jurisdictional offer,’” and may not be used to challenge the
Department’s actions with respect to property that is not described in a jurisdictional
offer. DEKK Property Dev., 406 Wis. 2d 768, ¶18 (citing WIS. STAT. § 32.05(5)).
In DEKK Property Development, for example, the property owner filed a right-to-
take action challenging the Department’s closure of a driveway, and the court
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determined that the owner was not entitled to relief under § 32.05(5) because the
Department’s jurisdictional offer did not describe any removal of access to the
highway. Id., ¶¶1, 18, 21.
¶34 Like the property owner in DEKK Property Development, Meyers’
WIS. STAT. § 32.05(5) right-to-take action fails because he challenges the
Department’s actions with respect to property that is not described in a jurisdictional
offer. Here, the Department issued a jurisdictional offer to Meyers with respect to
the Highway 51 reconstruction project, but that offer was limited to a temporary
limited easement over a portion of the Meyers parcel and the purchase of another
portion of the parcel in fee simple. As Meyers acknowledged during the circuit
court proceedings, the jurisdictional offer he received did not address the property
and access rights that he contends were improperly taken in his case. Consistent
with our supreme court’s decision in DEKK Property Development, the Department
is entitled to judgment on all three of Meyers’ § 32.05(5) right-to-take claims on
this basis alone.
¶35 Although this conclusion is dispositive, we proceed to explain why
Meyers’ claims would fail had he filed them in an action for inverse condemnation.
We do so because DEKK Property Development is a newer decision that neither
party has had an opportunity to brief, and because Meyers has invested significant
effort in pursuing his claims against the Department.
B. Any Factual Disputes Are Not Genuine or Material, and the Department
is Entitled to Judgment as a Matter of Law
¶36 At the outset, we consider an assertion that Meyers makes in his
appellate briefing that is common to all three claims—that this case involves
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numerous factual disputes that should be resolved by a jury.6 Meyers asserts that
he “was far from completing discovery” and “is not asking for a decision on these
matters,” and he contends that the “overwhelming disputes of significant material
facts” preclude summary judgment in favor of the Department.7
¶37 Meyers’ argument about factual disputes fails because he does not
identify any specific disputes that are genuine, material, and preclude judgment as
a matter of law. At best, he directs us to “review the arguments for the three original
complaints,” “the guiding statutes, and affidavits, material evidence[,] case law, and
[the] exhibits.” But “it is not the duty of this court to sift and glean the record … to
finds facts which will support [Meyers’] argument.” Tam v. Luk, 154 Wis. 2d 282,
291 n.5, 453 N.W.2d 158 (Ct. App. 1990) (citation omitted); see WIS. STAT RULE
809.19(1)(e). If there are factual disputes that are genuine and material, it is Meyers’
responsibility to identify those disputes in his appellate briefing.
¶38 Based on our own review of the record, we have not identified any
genuine disputes of material fact. To be sure, Meyers’ affidavits dispute certain
facts posed by the Department’s summary judgment materials, and his affidavits
allege other facts that the Department disputes. However, as we explain below, such
6
Meyers also points to the “overwhelming disputes” between the parties regarding
“matters of law.” However, the existence of disputed issues of law does not defeat a motion for
summary judgment. “The well-established purpose of summary judgment procedure is to
determine the existence of genuine factual disputes in order to ‘avoid trials where there is nothing
to try,’” and there is “nothing to try” when the only disputes are over legal issues that are properly
decided by a court. See Yahnke v. Carson, 2000 WI 74, ¶10, 236 Wis. 2d 257, 613 N.W.2d 102(citation omitted).
7
If additional discovery is needed to obtain evidence necessary to rebut a summary
judgment motion, a party may ask the circuit court to delay the matter until that discovery is
complete. See WIS. STAT. § 802.08(4); see also Kinnick v. Schierl, Inc., 197 Wis. 2d 855, 865,
541 N.W.2d 803 (Ct. App. 1995). Here, Meyers did not ask the court to delay its decision so that
he could take additional discovery; he instead filed his own motion for summary judgment. He
cannot now reasonably argue that the circuit court’s summary judgment ruling deprived him of the
opportunity to conduct necessary discovery or a fair opportunity to be heard.
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No. 2022AP428
disputes are either immaterial to the resolution of Meyers’ claims, or the disputes
are not genuine because Meyers does not have admissible evidence to support the
facts he alleges. See Strasser v. Transtech Mobile Fleet Serv., Inc., 2000 WI 87,
¶32, 236 Wis. 2d 435, 613 N.W.2d 142 (“a ‘material fact’ is one that impacts the
resolution of the controversy”); id. (“[a] factual issue is ‘genuine’ if the evidence is
such that a reasonable jury could return a verdict for the nonmoving party”); see
also Helland v. Kurtis A. Froedtert Mem’l Lutheran Hosp., 229 Wis. 2d 751, 756,
601 N.W.2d 318 (Ct. App. 1999) (“A party opposing summary judgment must set
forth ‘specific facts,’ evidentiary in nature and admissible in form …. It is not
enough to rely upon unsubstantiated conclusory remarks, speculation, or testimony
which is not based on personal knowledge.”).
¶39 With this in mind, we comment on each of Meyers’ three claims.
1. The Curb Cuts
¶40 Meyers disputes the Department’s removal of two unauthorized curb
cuts that, prior to the reconstruction project, provided access to Highway 51 from
the southern portion of his property.8 Meyers contends that the Department lacked
the authority to remove these curb cuts, or perhaps that Meyers was entitled to just
compensation for their removal. As we now explain, Meyers’ claim regarding the
8
In his appellate briefing, Meyers appears to allege that at least one of these curb cuts was
“permitted,” and he makes various arguments to the effect that the Department lacked the statutory
authority to remove a “permitted” curb cut or failed to comply with the proper procedures for doing
so. Meyers’ assertion that the curb cut was “permitted” is supported solely by an averment in
Meyers’ affidavit, which does not demonstrate Meyers’ personal knowledge of the alleged fact and
is therefore insufficient to create a genuine dispute of material fact. The remaining submissions on
file show that, among other things, all existing driveway permits were superseded with access
authorizations in 2004, following the Department’s controlled access designation.
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No. 2022AP428
curb cuts fails because the Department had the authority to remove the curb cuts
based on its police power and without paying just compensation.
¶41 As noted, the Department exercises its police power when it
designates a highway as a “controlled access” highway, Hoffer Properties, 366 Wis.
2d 372, ¶¶19-20 (lead op.) (citing WIS. STAT. § 84.25(1)); id., ¶49 (Abrahamson, J.,
concurring), and in so doing, the Department must comply with an elaborate set of
statutory procedures, see § 84.25(1). After a controlled access designation has been
made, abutting property owners’ access rights are curtailed. See § 84.25(4), (5), (6).
The Department may change an abutting owner’s access to the controlled access
highway without compensation, see WIS. STAT. § 32.09(6)(b), in whatever way it
“deems necessary and desirable,” see § 84.25(3), so long as the property owner
continues to have reasonable access through other means. Hoffer Properties, 366
Wis. 2d 372, ¶22, 30 (lead op.). The Hoffer Properties lead opinion cited with
approval cases that have concluded that access to a controlled access highway by a
more circuitous route rather than directly may constitute reasonable access, and does
not necessarily amount to a regulatory taking. Id., ¶30 (lead op.); see also id., ¶27
(lead op.) (surveying Wisconsin case law).
¶42 Here, as discussed, the Department designated the segment of
Highway 51 that abuts Meyers’ parcel as a controlled access highway in 2002,
several months before Meyers purchased the parcel. When the Department removed
the two curb cuts on Meyers’ property, it was acting pursuant to its police powers
under WIS. STAT. § 84.25, not its eminent domain authority. See Hoffer Properties,
366 Wis. 2d 372, ¶¶22, 31 (lead op.) (explaining that, following a controlled access
designation, the Department acts pursuant to a duly authorized exercise of police
power); id., ¶49 (Abrahamson, J., concurring). Meyers is not entitled to
compensation unless the removal of access amounted to a regulatory taking. And
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No. 2022AP428
here, following the removal of the two unauthorized curb cuts, Meyers’ parcel still
had two direct access points to Highway 51—the existing northern driveway and
the new southern driveway, which the Department constructed at a location between
where the two curb cuts had been.9 Meyers does not and cannot show that his parcel
lacks reasonable access to Highway 51, and as such, that his property has been
deprived of all or substantially all of its beneficial use as a result of the closing of
the curb cuts. Therefore, Meyers is not entitled to compensation for the
Department’s removal of the curb cuts.
¶43 Meyers makes an argument that harkens back to 2002. Specifically,
he contends that the Department did not properly designate Highway 51 as a
controlled access highway.10 But Meyers cites no authority to support the
proposition that he can challenge the propriety of the designation in this lawsuit,
which was filed more than fifteen years after that designation was made. As was
explained in the Hoffer Properties lead opinion, “[a]n abutting property owner’s
opportunity to object to the [Department]’s exercise of … police power comes at
the time of the hearing on whether to designate the highway ‘controlled-access.’”
Id., ¶22 (lead op.).
¶44 Separately, Meyers contends that the Department’s removal of the
curb cuts violated his due process rights because the Department did not provide
Meyers with “notice” that it would be removing the curb cuts; it did not identify the
9
Meyers’ 2020 sale of a portion of his parcel left his property with just one direct access
point to Highway 51, but it was Meyers’ choice to sell.
10
Specifically, Meyers contends that WIS. STAT. § 84.25 permits the Department to
designate only “rural” portions of the state trunk system controlled access, and this segment of
Highway 51 is in a concentrated commercial district. Meyers also takes issue with the newspaper
that the Department selected to publish notice of the public hearing required under § 84.25.
18
No. 2022AP428
statutes upon which it was relying to remove them; and it did not provide Meyers
with an opportunity to be “heard.” This contention fails on the facts and the law.
¶45 As for the facts, the Department’s summary judgment materials
demonstrate that, among other things, it recorded a notice of non-access on the
Meyers parcel in March 2004, it notified him of its plans to eliminate the curb cuts
no later than its September 2015 letter, and both documents referenced WIS. STAT.
§ 84.25 as the source of the Department’s authority. Meyers’ summary judgment
materials do not raise any genuine dispute regarding these historical facts. Indeed,
Meyers’ claim that he was unaware that the Department was eliminating the curb
cuts pursuant to § 84.25 rings hollow—his complaint expressly challenged the
Department’s authority to remove the two curb cuts pursuant to that very statute.
¶46 Turning to the law, as stated, WIS. STAT. § 84.25(3) is the source of
the Department’s authority to restrict access to a controlled access highway, and, in
stark contrast to the elaborate procedures governing the Department’s exercise of
eminent domain authority, § 84.25(3) does not impose any notice requirements or
any right to an administrative hearing either before or after the Department
eliminates a property owner’s direct access points. See id., ¶¶23-29 (interpreting
and discussing § 84.25). Meyers cites no authority to support his assertion that he
was entitled to notice or a right to a hearing in this instance. See State v. Pettit, 171
Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we need not consider
arguments that are unsupported by legal citations or are otherwise undeveloped).
2. The Sign-Removal Order
¶47 Meyers also challenges the Department’s issuance of a written order
declaring that a commercial sign on the parcel was illegal and directing him to
remove it. Meyers alleges that the Department erroneously determined that the sign
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No. 2022AP428
was illegal, and he takes issue with various aspects of the Department’s sign-
removal order.
¶48 WISCONSIN STAT. § 84.30 governs the regulation of outdoor
advertising, including the issuance of sign-removal orders and the compensation
required when the Department orders a sign to be removed. Under § 84.30(6), the
Department “must pay just compensation for certain categories of signs that it
removes or relocates that are not in conformity with the statute, including signs
lawfully in existence on March 18, 1972, and signs lawfully erected after that date.”
Lamar Cent. Outdoor, LLC v. DOT, 2008 WI App 187, ¶21, 315 Wis. 2d 190, 762
N.W.2d 745. By contrast, if a sign is illegal or has lost its lawful nonconforming
use status, the Department may remove the sign without paying any compensation
to the owner upon sixty days’ notice. Id., ¶¶23, 26 (citing § 84.30(11)).
¶49 A person receiving such a notice has a right to an administrative
hearing before the state division of hearings and appeals, and to judicial review of
that administrative decision under WIS. STAT. ch. 227. See WIS. STAT. § 84.30(18).
In Lamar Central Outdoor, we concluded that the review process in § 84.30(18) is
the exclusive procedure for determining the legality of a sign after a removal order
has been issued, and that “a determination under § 84.30(18) that [a] sign is legal is
a necessary predicate to just compensation for the sign under the statutory scheme.”
Lamar Cent. Outdoor, 315 Wis. 2d 190, ¶1. Because the sign owner in Lamar
Central Outdoor commenced an action in court without having exhausted the
exclusive administrative and judicial review procedures in § 84.30(18), we
concluded that his claim was procedurally barred. Id., ¶¶36-37.
¶50 So too here. Meyers attempted to initiate the WIS. STAT. § 84.30(18)
process, but the division of hearings and appeals determined that his appeal was not
20
No. 2022AP428
timely, and he did not seek judicial review of that administrative order.
Accordingly, as in Lamar Central Outdoor, Meyers’ claim is procedurally barred.
A determination under § 84.30(18) that a sign is legal is a necessary predicate to
receiving just compensation, and without such a determination here, the Department
is entitled to judgment on Meyers’ claim.11
3. The Access Easement
¶51 Finally, Meyers argues that the Department illegally took a portion of
his parcel for an access easement that benefits the adjoining parcel. This argument
has two discrete parts: Meyers contends that the Department forced his predecessor
in interest, Indymac, to grant the access easement as part of Indymac’s division of
its parcel into two lots in 2000; and he also contends that the Department improperly
expanded the access easement beyond its original dimensions during the current
highway reconstruction project.
¶52 Meyers’ argument about the forced granting of the access easement
fails. Even assuming that Meyers could raise a genuine dispute that the Department
11
In his appellate briefing, Meyers does not respond to the Department’s argument about
Lamar Central Outdoor’s procedural bar, and instead merely reasserts the arguments that he made
in the circuit court regarding the legality of the Department’s sign removal order. For instance,
Meyers argues that the Department lacked “jurisdiction” or “authority” over the sign because the
sign was regulated by the town; he also contends that, given the opportunity, he could show that,
contrary to the Department’s order, the sign was not illegal. These arguments do not address the
dispositive issue that Meyers’ claim is procedurally barred, and we reject them on that basis.
We pause to comment on one specific argument Meyers continues to advance on appeal
that is contradicted by the record. Meyers contends that, in issuing the sign removal order, the
Department violated his due process rights because it failed to identify the statute that gave the
Department authority to remove his sign. This assertion is contradicted by the text of the sign
removal order, which stated that the sign was illegal under WIS. STAT. § 84.30(11) and informed
Meyers that he could challenge the Department’s determination under § 84.30(18) by filing a notice
of appeal within 30 days of receiving the order.
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No. 2022AP428
was involved in the lot division, which is no small assumption in Meyers’ favor,12
Meyers cites no authority that would allow him to challenge actions the Department
took in 2000, before Meyers owned the parcel in question.
¶53 Turning to Meyers’ argument that the Department “expanded” or
“altered” the access easement during the reconstruction project, this argument is not
supported by evidentiary facts. Meyers’ own affidavit avers that the alleged
expansion of the easement is documented in a survey that was conducted in 2021.
However, the 2021 survey does not, standing on its own, show an expansion of the
access easement, and a comparison of the 2021 survey with the 2000 survey appears
to confirm that the access easement continues to be in the same location that it has
been since it was granted in 2000.
¶54 For all of these reasons, in addition to Meyers’ improperly bringing
his claims in a right-to-take action, we conclude that the Department is entitled to
summary judgment.
12
Meyers submitted an affidavit in which he avers that “WisDOT had previously forced
an adjoining parcel to trespass on [the Meyers parcel] by insisting [an easement] be drafted onto
the survey at the time the [Indymac] parcel was divided into two parcels.” However, Meyers does
not point to any documents to support the assertion that the access easement was included in the
2000 survey based on the Department’s insistence, nor does he explain how this assertion is based
on personal knowledge. There is a good reason to suspect that Meyers’ assertion is not based on
personal knowledge, given that he did not purchase his parcel until 2002, and he does not indicate
that he had any role in Indymac’s division of the parcels or the creation of the 2000 survey.
22
No. 2022AP428
III. Additional Due Process Arguments
¶55 Before concluding, we address Meyers’ additional arguments that the
Department’s conduct and the circuit court proceedings violated his due process
rights for a variety of reasons not specifically addressed above.13
¶56 Meyers first contends that the Department violated his due process
rights during the litigation by “suppressing” the statutes that gave it the authority to
eliminate his curb cuts and sign. This argument fails for multiple reasons, some of
which we have already discussed. As mentioned, the undisputed facts demonstrate
that the Department’s pre-litigation notices and correspondence identified WIS.
STAT. § 84.25 as the source of its authority to eliminate the curb cuts and WIS. STAT.
§ 84.30 as the source of its authority to order the removal of his sign. Then, during
the litigation, the Department identified these same statutes in response to a 145-
page “Motion for Timely Disclosure of Material Facts and Enclosed Exhibits” that
Meyers filed, which the Department construed as discovery requests. Meyers did
not serve any additional requests, nor did he take any steps in the circuit court to
compel any additional responses to his requests. Meyers appears to be arguing that
he was entitled to more specific information than what the Department repeatedly
provided to him, but he cites no legal authority to support that position.
¶57 Second, Meyers contends that, by statute, his right-to-take action was
to “be given precedence over all other actions in said court then not on trial,” WIS.
STAT. § 32.05(5), and that the circuit court’s failure to hold a hearing between the
filing of his lawsuit in 2017 and the closure of the curb cuts in or around 2019
13
To the extent that we do not address any argument raised by Meyers in his briefing, we
have considered it and reject it as undeveloped. See State v. Jacobsen, 2014 WI App 13, ¶16, 352
Wis. 2d 409, 842 N.W.2d 365 (Ct. App. 2013) (a court need not address undeveloped arguments).
23
No. 2022AP428
violated his due process rights. This delay-based argument fails for multiple
reasons, including that the statutory preference is for right-to-take actions, and we
have determined that Meyers’ claims were not the proper subject of a right-to-take
action. The argument also fails based on the record, which shows that Meyers
himself requested multiple adjournments and delays during the circuit court
proceedings, which resulted in him not receiving a prompt hearing on his claims.14
Finally, the argument fails because Meyers has not shown how any delay affected
his substantial rights and warrants a remedy. See WIS. STAT. § 805.18(2);
Martindale v. Ripp, 2001 WI 113, ¶32, 246 Wis. 2d 67, 629 N.W.2d 698 (“For an
error ‘to affect the substantial rights’ of a party, there must be a reasonable
possibility that the error contributed to the outcome of the action or proceeding at
issue.”).
¶58 Third, Meyers asserts that the circuit court deprived him of the right
to counsel. To be clear, “there is no express constitutional guarantee of
representation by counsel in a civil matter” such as this case. Village of Big Bend
14
The amended complaint was filed in September 2017. Between February of 2018 and
April of 2019, the court scheduled a series of status conferences, and on each occasion Meyers, or
the Department with Meyers’ approval, requested adjournments on the ground that Meyers was
making efforts to reach a settlement with the Department. In April 2019, the circuit court issued a
scheduling order that would have imposed a July 10, 2019 deadline for discovery and dispositive
motions. However, on July 9, 2019, Meyers filed a brief suggesting “that matters be put on hold.”
He indicated that, since the curb cuts (and possibly the sign) had already been eliminated,
“[e]xpediency is now by the wayside and Meyers would prefer to slow the process down until
representation can be acquired.”
The circuit court slowed the process down, consistent with Meyers’ request. Following a
scheduling conference in March 2020, the court issued a new scheduling order, which provided
that Meyers’ jury trial demand and jury fee payment had to be made by April 9, 2020, and that
Meyers had agreed to obtain counsel, if desired, by April 13, 2020. Meyers did not make a jury
demand or pay the jury fee, nor did he retain counsel at that time or at any other point in the
litigation. The case appears to have been more or less dormant until June 2021, when the court
issued another scheduling order requiring dispositive motions to be filed by November 2021. The
parties’ summary judgment motions followed, and the court issued its decision in January 2022.
24
No. 2022AP428
v. Anderson, 103 Wis. 2d 403, 405, 308 N.W.2d 887 (Ct. App. 1981). Even more
importantly, Meyers’ assertion is not consistent with the record. The record shows
that the court granted Meyers’ multiple requests to delay the case so that he could
obtain counsel, yet Meyers did not retain any attorney over the course of many
months. One of the court’s scheduling orders set forth an agreed-upon deadline for
Meyers to obtain representation, but the court also informed Meyers that it would
not prevent an attorney from entering an appearance at a later date, should Meyers
retain an attorney.
¶59 Fourth, Meyers argues that the circuit court deprived him of his right
to a jury trial. He contends that he did not forfeit his right to a jury trial by failing
to pay the jury fee by the deadline in the scheduling order, but this argument is
beside the point. A party is not entitled to a trial, jury or otherwise, if there is no
genuine issue as to any material fact and the opposing party is entitled to judgment
as a matter of law. WIS. STAT. § 802.08(2). We have concluded that the circuit
court correctly determined that that standard was satisfied in this case.
¶60 Finally, Meyers makes additional miscellaneous complaints about
how the circuit court handled various aspects of the proceedings. For example, he
had difficulty with his telephone connection during one of the scheduling
conferences; at points there was confusion about whether Meyers was filing and
receiving documents electronically or through conventional means; and, according
to Meyers, the court did not read all of his filings. Assuming without deciding that
Meyers has sufficiently established the events he complains about, to the extent that
Meyers is alleging that any of these alleged errors violated his due process rights,
he does not explain how; nor does he explain how they affected his substantial
rights. See Pettit, 171 Wis. 2d at 646; WIS. STAT. § 805.18(2); Martindale, 246
Wis. 2d 67, ¶32.
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No. 2022AP428
CONCLUSION
¶61 The circuit court’s order is affirmed.
By the Court.—Order affirmed.
Not recommended for publication in the official reports.
26