DEKK Property Development, LLC v. Wisconsin Department of Transportation

2023 WI 30SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP2146
COMPLETE TITLE: DEKK Property Development, LLC,
Plaintiff-Respondent-Petitioner,
v.
Wisconsin Department of Transportation,
Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 400 Wis. 2d 548, 971 N.W.2d 201(2022 – unpublished)
OPINION FILED: April 18, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: November 1, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Kenosha
JUDGE: Anthony G. Milisauskas
JUSTICES:
KAROFSKY, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., ANN WALSH BRADLEY, ROGGENSACK, DALLET and
HAGEDORN, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a
concurring opinion.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs
filed by Alan Marcuvitz, Andrea Roschke, Smitha Chintamaneni,
Adam S. Bazelon, and von Briesen & Roper, S.C., Milwaukee. There
was an oral argument by Alan Marcuvitz.
For the defendant-appellant, there was a brief filed by
Hannah S. Jurss, assistant attorney general, with whom on the
brief was Joshua L. Kaul, attorney general. There was an oral
argument by Hannah S. Jurss, assistant attorney general.
2023 WI 30NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP2146
(L.C. No. 2019CV1226)
STATE OF WISCONSIN : IN SUPREME COURT
DEKK Property Development, LLC,
Plaintiff-Respondent-Petitioner,
FILED
v. APR 18, 2023
Wisconsin Department of Transportation, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant.
KAROFSKY, J., delivered the majority opinion of the Court, in
which ZIEGLER, C.J., ANN WALSH BRADLEY, ROGGENSACK, DALLET and
HAGEDORN, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a
concurring opinion.
REVIEW of a decision of the Court of Appeals. Modified,
and as modified, affirmed.
¶1 JILL J. KAROFSKY, J. This controversy stems from a
driveway closure——specifically, the Wisconsin Department of
Transportation's (DOT's) closure of a driveway connecting DEKK
Property Development, LLC's (DEKK's) property to State Trunk
Highway (STH) 50. DEKK is seeking compensation for the closure.
The case potentially raises two questions: (1) whether DEKK may
seek compensation for the driveway closure in a "right-to-take"
No. 2020AP2146
action under Wis. Stat. § 32.05(5)(2021-22),1 and (2) if so,
whether DOT must compensate DEKK for the closure. We hold that
DEKK may not bring its claim under § 32.05(5), and thus we do
not reach the second question. Section 32.05(5) provides a
means to challenge DOT's right to take property described in a
jurisdictional offer issued under § 32.05(3), and here DOT's
jurisdictional offer to DEKK did not describe any removal of
access to STH 50. Therefore, the circuit court2 should have
granted DOT's summary judgment motion and dismissed DEKK's
claim. Because this procedural issue is dispositive, we do not
decide the question of whether DEKK might be owed compensation
had it challenged the driveway closure via a different avenue.
I. BACKGROUND
¶2 DEKK owns approximately four acres of property (the
Property) in Kenosha County near the southeast corner of STH 50
and County Highway (CTH) H. The following is an aerial photo of
the Property.3 STH 50 runs east-west along the top of the photo,
and CTH H runs north-south on the left. There is one driveway
from the Property to STH 50, which DOT seeks to close, and one
1All subsequent references to the Wisconsin Statutes are to
the 2021-22 version unless otherwise indicated.
2The Honorable Anthony G. Milisauskas of the Kenosha County
Circuit Court presided.
3This aerial photo is from an appraisal report DOT
commissioned before issuing an offer to purchase a portion of
DEKK's property that abuts CTH H. We have added labels for CTH
H and STH 50 to aid the reader in understanding the layout of
the Property.
2
No. 2020AP2146
driveway from the Property to CTH H, which will remain available
for use.
STH
50
CTH
H
¶3 In 1961, the former owners of a portion of the
property deeded to Kenosha County (acting as an agent for DOT)
"the Right of Access, including all existing, future, or
potential common law . . . rights of access" to STH 50, along
with a tract of land adjacent to STH 50. This tract included
the land on which the contested STH 50 driveway is located. The
deed included the following exception:
Except there is reserved the right of access to said
highway by means of one restricted driveway same to be
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No. 2020AP2146
used only for barber shop purposes for the term of
fifteen years from date of this conveyance and then to
become a private driveway conforming to the
regulations of the State Highway Commission. Said
driveway is to be constructed with its eastern limits
along the east line of the owner's property line in
conformance with State Highway Commission policy.
There is little information on any subsequent use or development
of the STH 50 driveway in the record.
¶4 In 2019, DOT sought to acquire another part of the
Property——a strip of land abutting CTH H——as part of a project
to improve STH 50. After DOT decided to acquire the CTH H
parcel, it commissioned an appraisal of the parcel as required
by Wis. Stat. § 32.05(2)(a). The appraisal report assessed the
CTH H parcel, and explained that DOT was not seeking to acquire
any access rights. The report noted that the driveway between
the Property and STH 50 (located on a different part of the
Property than the CTH H parcel) would have to be closed. It
also noted that DOT would not compensate DEKK for the STH 50
driveway because the commercial building that the driveway
formerly served had been demolished, and redevelopment of the
property would "likely require new driveway approvals in an
alternate location farther from the intersection."
¶5 After DOT provided the appraisal report to DEKK, DEKK
emailed DOT to ask about the lack of compensation for the STH 50
driveway closure. A DOT real estate specialist explained that
"at the time of acquisition the current driveway will still
remain in place," and that any revocation of the access point
would be "non-compensable now because it has not happened yet,
and if it ever did, it would be through police power."
4
No. 2020AP2146
¶6 DOT then issued a jurisdictional offer to DEKK as
required by Wis. Stat. § 32.05(3). In the jurisdictional offer,
DOT offered to purchase the CTH H parcel for $272,100. It did
not offer to purchase any access rights, allocate compensation
for any loss of access rights, or reference any driveway
closures. The jurisdictional offer included a Transportation
Project Plat, which denoted the property interests DOT sought to
acquire. We include the relevant portion of the Plat below:
The CTH H parcel is identified on the left side of the Property.
Arrows point to the part of the parcel DOT sought to purchase in
fee simple (indicated by diagonal lines), the part on which it
sought a temporary limited easement (indicated by dots), and the
part on which it sought a permanent limited easement (too small
5
No. 2020AP2146
to be visible on this Plat). DEKK does not challenge the
purchase of the land or easements.
¶7 After DOT issued the jurisdictional offer, DEKK filed
an action under Wis. Stat. § 32.05(5) in the Kenosha County
Circuit Court. DEKK did not challenge the acquisition of the
CTH H parcel, but instead challenged "DOT's right to remove
DEKK's rights of access to STH 50." Both DOT and DEKK moved for
summary judgment.
¶8 Shortly after the filing of the summary judgment
motions, but before the circuit court's decision, DOT sent a
letter to DEKK providing "official notice" that it "plan[ned] to
remove the existing driveway from State Highway 50 . . . during
an upcoming improvement project." The letter explained that
under Wis. Admin. Code § Trans 231.03(2), the number of
driveways serving a property along a state trunk highway shall
be the "minimum" deemed necessary "for reasonable service to the
property without the undue impairment of safety, convenience,
and utility of the highway," and "[r]emoving unnecessary access
points . . . increases the mobility of the highway facility
while reducing the potential for crashes as vehicles enter and
leave the highway." The letter further explained that DEKK
could contest the removal by submitting an objection letter to
DOT, and DOT would then send a "revocation letter" if either
DEKK failed to respond to the notice or DOT upheld its
revocation decision. Because DEKK initiated this challenge
under Wis. Stat. § 32.05(5) prior to DOT sending the official
notice, the record is unclear as to whether DEKK took advantage
6
No. 2020AP2146
of DOT's administrative review process, or whether DOT
subsequently sent a revocation letter.
¶9 After receiving the notice, DEKK filed a motion for a
temporary restraining order and injunction to prevent DOT from
closing the driveway. The circuit court granted DEKK's motion
for the injunction along with its motion for summary judgment,
reasoning that DEKK had "some sort of right of access" to the
driveway and thus deserved compensation for its closure. The
court further determined that DEKK properly filed its claim
under Wis. Stat. § 32.05(5). DOT appealed, and the court of
appeals reversed, reasoning that the 1961 transaction only
reserved the right to use the driveway subject to DOT
regulations, and DOT was within its rights to close the driveway
without compensation as an exercise of police power. Because
the court of appeals held for DOT on the merits, it did not
address DOT's alternative argument that § 32.05(5) was not the
proper procedural mechanism for DEKK's claim. We granted DEKK's
petition for review and now affirm the court of appeals on the
alternative procedural grounds.
II. STANDARD OF REVIEW
¶10 This case requires us to review the circuit court's
decision to grant summary judgment for DEKK and deny summary
judgment for DOT. Summary judgment is appropriate when there is
no genuine issue 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. Id.7
No. 2020AP2146
¶11 In determining whether either party is entitled to
judgment as a matter of law, we must determine whether DEKK may
bring its claim under Wis. Stat. § 32.05(5). To do so, we must
interpret and apply the statute. Statutory interpretation
presents a question of law that we review independently. 260 N.
12th St., LLC v. DOT, 2011 WI 103, ¶39, 338 Wis. 2d 34, 808
N.W.2d 372.
III. ANALYSIS
¶12 We begin our analysis with a brief review of the
relevant principles and procedures that apply when DOT seeks to
acquire private property by eminent domain. We then turn to the
different means by which property owners may challenge or seek
compensation for DOT's actions. Finally, we examine whether in
this case DEKK may bring its claim in a Wis. Stat. § 32.05(5)
right-to-take action.
¶13 When DOT determines that it is necessary to take
private property under its eminent domain authority, it must pay
just compensation. U.S. Const. amend. V. ("nor shall private
property be taken for public use, without just compensation.");
Wis. Const. art. I, § 13 ("The property of no person shall be
taken for public use without just compensation therefor."). But
not all state actions that affect private property result in a
compensable taking. 118th St. Kenosha, LLC v. DOT, 2014 WI 125,
¶32, 359 Wis. 2d 30, 856 N.W.2d 486. Injuries to property that
result from a valid exercise of the state's police power are
generally not compensable. Nick v. State Highway Comm'n, 13
8
No. 2020AP2146
Wis. 2d 511, 514, 109 N.W.2d 71 (1961). Compensable eminent
domain and non-compensable police power actions "can occur
contemporaneously," and DOT may exercise both its police power
and its eminent domain authority as part of the same highway
construction project. 118th St. Kenosha, LLC, 359 Wis. 2d 30,
¶¶31-33.
¶14 When DOT exercises its eminent domain authority to
obtain private land for transportation projects, it must follow
the procedures set forth in Wis. Stat. § 32.05. Under that
statute, once DOT determines that it must acquire a piece of
property, it is required to seek an appraisal of the property,
provide the owner a copy of the appraisal report, and confer
with the owner, if reasonably possible. Wis. Stat.
§ 32.05(2)(a). DOT must then attempt to negotiate with the
owner for the property. § 32.05(2a). If negotiations are
unsuccessful, DOT issues a jurisdictional offer to purchase the
property. The jurisdictional offer describes the property and
the compensation being offered (among other requirements).
§ 32.05(3). If the property owner rejects the offer, the owner
may file a "right-to-take" action under § 32.05(5) to contest
DOT's right to take the property "described in the
jurisdictional offer." § 32.05(5).
¶15 Wisconsin Stat. § 32.05(5) is just one of several
statutes that enable property owners to challenge DOT when DOT
undertakes highway construction projects affecting private
9
No. 2020AP2146
property.4 See TFJ Nominee Tr. v. DOT, 2001 WI App 116, ¶¶25-26,
244 Wis. 2d 242, 629 N.W.2d 57. The appropriate statute depends
on the facts of the case and the nature of the challenged
governmental action. These statutes are not interchangeable,
and "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 St. Kenosha, LLC, 359 Wis. 2d 30, ¶33.
¶16 Moreover, even when DOT undertakes different projects
that are part of the same overall highway construction project,
"that does not necessarily merge each project into one single
compensable act." Id. Importantly here, different projects are
not necessarily merged into a single compensable act even when
the projects affect the same property owner, or occur around the
same time. For instance, in 118th Street Kenosha v. DOT, DOT
undertook two separate actions as part of the same highway
improvement project: (1) relocating a highway, which eliminated
the property owner's direct access to the highway, and (2)
For instance, if an owner believes that DOT took a
4
property right, but failed to properly condemn the property by
following the procedures set out in Wis. Stat. § 32.05, the
owner may file an action for inverse condemnation under Wis.
Stat. § 32.10. See TFJ Nominee Tr. v. DOT, 2001 WI App 116,
¶25, 244 Wis. 2d 242, 629 N.W.2d 57. Additionally, if DOT
revokes a permit for a driveway to a state trunk highway, the
owner may challenge DOT's revocation under the procedures set
out in Wis. Stat. § 86.073, which include the right to appeal
DOT's final determination under the administrative review
procedures set out in Wis. Stat. ch. 227. Wis. Stat.
§ 86.073(3); Wis. Stat. § 227.43(1)(bg).
10
No. 2020AP2146
acquiring a temporary limited easement from the owner in order
to build a driveway to a private road that intersected with the
highway. Id., ¶2. The property owner sought damages under Wis.
Stat. § 32.09(6g) for the diminution in value to its property
caused by the relocation of the highway. We held that the owner
could not do so under § 32.09(6g) because § 32.09(6g) provided a
means to seek damages resulting from the taking of an easement,
and the damages sought by the owner did not result from the
easement. Id., ¶57.
¶17 Taking these principles together, we must determine
whether DEKK may seek damages under Wis. Stat. § 32.05(5) for
DOT's closure of the STH 50 driveway. The statute reads in
pertinent part as follows:
If an owner decides 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, the
owner may within 40 days from the date of personal
service of the jurisdictional offer . . . commence an
action in the circuit court of the county wherein the
property is located, naming the condemnor as
defendant. Such action shall be the only manner in
which any issue other than the amount of just
compensation . . . may be raised pertaining to the
condemnation of the property described in the
jurisdictional offer . . . . Nothing in this section
shall be construed to limit in any respect the right
to determine the necessity of taking as conferred by
s. 32.07 nor to prevent the condemnor from proceeding
with condemnation during the pendency of the action to
contest the right to condemn.
Wis. Stat. § 32.05(5).
¶18 Section 32.05(5) sets out a process by which DEKK may
"contest the right of the condemnor," here, DOT, "to condemn the
11
No. 2020AP2146
property described in the jurisdictional offer." Actions under
§ 32.05(5) are limited to issues "pertaining to the condemnation
of the property described in the jurisdictional offer." Wis.
Stat. § 32.05(5); see Warehouse II, LLC v. DOT, 2006 WI 62, ¶24,
291 Wis. 2d 80, 715 N.W.2d 213 (explaining that § 32.05(5)
permits owners to challenge the government's right to condemn
the property described in the jurisdictional offer). Put
simply, if DEKK's access to STH 50 is "described in the
jurisdictional offer," then § 32.05(5) would be the proper
procedural mechanism by which DEKK could bring its claim. If
not, then DEKK may not recover damages under that statute, and
its action should be dismissed. See 118th St. Kenosha, LLC, 359
Wis. 2d 30, ¶33.
¶19 We therefore turn to DOT's jurisdictional offer to
determine whether it describes any such access right. The
jurisdictional offer states that DOT "offers to purchase a
parcel of real estate and/or rights therein in which [DEKK]
own[s] an interest as described on attached page, and within 60
days from the acceptance of this offer agrees to pay the sum of:
Two Hundred Seventy-Two Thousand One Hundred and 0/100 Dollars
(272,100.00)." The attached page provides a legal description
of the CTH H parcel. The parcel described does not touch the
STH 50 driveway that is in dispute here. While the parcel
described does include the CTH H driveway, both DEKK and DOT
agree that DEKK retains access to CTH H via that driveway. The
parcel description also incorporates by reference "[a]ny
interest or rights not listed above for said parcel but shown as
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No. 2020AP2146
required on [Transportation Project Plat 1310-10-22]." Of
import here, the referenced Plat does not indicate that DOT was
seeking to remove any STH 50 access rights.5 The Plat only
highlights the fee simple, permanent limited easement, and
temporary limited easement that DOT sought to acquire, none of
which connect to the STH 50 driveway.
¶20 The rest of the jurisdictional offer similarly does
not describe the removal of any STH 50 access rights——instead,
it relates only to the taking of the CTH H parcel. The offer
allocates the bulk of its purchase price to "[l]oss of land,
including improvements and fixtures actually being acquired,"
and the rest to rounding and the easements DOT sought on the CTH
H parcel. The offer allocates zero dollars to "Damages caused
by loss of existing rights of access," and it does not otherwise
mention any access rights.
¶21 If DEKK sought to challenge DOT's right to take the
CTH H parcel, Wis. Stat. § 32.05(5) would be the appropriate
means to do so. However, § 32.05(5) is not the appropriate
means for determining the nature of DEKK's access rights to STH
50, whether those rights are being impeded, or whether any such
impediment is compensable. See TFJ Nominee Tr., 244 Wis. 2d
242, ¶2. Because the jurisdictional offer does not describe the
5 The referenced Plat does show that DOT restricted access
to STH 50 in a 2003 project, but it does not indicate that DOT
is taking any access rights as part of the current project.
13
No. 2020AP2146
STH 50 driveway closure or any loss of access rights, DEKK may
not challenge the closure under § 32.05(5).
¶22 DEKK's arguments to the contrary are unavailing. DEKK
relies primarily on Waller v. American Transmission Company, in
which we held that property owners could raise an uneconomic
remnant claim in a Wis. Stat. § 32.06(5)6 proceeding. 2013 WI
77, ¶118, 350 Wis. 2d 242, 833 N.W.2d 764. But DEKK is not
raising an uneconomic remnant claim——that is, it does not argue
that the taking of the CTH H parcel leaves its remaining
property in "such size, shape or condition as to be of little
value or of substantially impaired economic viability." See
Wis. Stat. § 32.05(3m) (defining "uneconomic remnant"). Waller
does not stand for the broad proposition that a property owner
may challenge any DOT action under § 32.05(5). This proposed
expansion of Waller would run contrary to the plain language of
§ 32.05(5), which is limited to issues "pertaining to the
condemnation of the property described in the jurisdictional
offer" (emphasis added). Here, DEKK does not challenge the
taking of the CTH H parcel described in the jurisdictional
offer, or allege that the taking left it with an uneconomic
remnant, but instead challenges the closure of a driveway on a
different part of its Property. That the driveway closure and
Wisconsin Stat. § 32.06(5) provides a means for property
6
owners to challenge the government's right to take property
under § 32.06, which sets out the condemnation procedures for
non-transportation-related takings. The relevant language in
§ 32.06(5) is nearly identical to § 32.05(5).
14
No. 2020AP2146
the taking of the CTH H parcel may be part of a larger project
to improve STH 50 does not "merge each project into one single
compensable act." See 118th St. Kenosha, LLC, 359 Wis. 2d 30,
¶33. Consequently, DEKK may not pursue damages for the driveway
closure under § 32.05(5).
¶23 Because we decide the case on this narrow ground, we
need not decide whether DEKK might recover damages for the
driveway closure through a different procedural avenue. See Md.
Arms Ltd. P'ship v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300,
786 N.W.2d 15. ("Typically, an appellate court should decide
cases on the narrowest possible grounds. Issues that are not
dispositive need not be addressed." (citation omitted)).
IV. CONCLUSION
¶24 DEKK may not recover damages for the closure of the
STH 50 driveway under Wis. Stat. § 32.05(5) because the access
rights that DEKK alleges it lost were distinct from the taking
described in DOT's jurisdictional offer. Summary judgment
should therefore be granted in DOT's favor.
By the Court.—The decision of the court of appeals is
modified, and as modified, affirmed.
15
No. 2020AP2146.rgb
¶25 REBECCA GRASSL BRADLEY, J. (concurring).
To empower government excessively is to endanger the
very rights government is constituted to secure.
Peter C. Myers, From Natural Rights to Human Rights——And Beyond
33 (2017).
¶26 The majority properly resolves this case on limited
procedural grounds; I agree that DEKK's claim for compensation
cannot be brought under Wis. Stat. § 32.05(5). Instead of
limiting its analysis to what it properly characterizes as a
dispositive procedural issue, the majority nevertheless makes
unnecessary, overly broad, and inaccurate statements about the
availability of compensation to property owners stemming from
the exercise of the state's police power. I write separately
because the majority opinion could be misconstrued to undermine
constitutionally protected private property rights; I therefore
do not join it.
¶27 The Takings Clause of the Fifth Amendment prohibits
private property from being taken for public use without just
compensation. U.S. Const. amend. V. The Wisconsin Constitution
similarly provides that "[t]he property of no person shall be
taken for public use without just compensation therefor." Wis.
Const. art. I, § 13. The majority jumps from reciting the
constitutional limits on the power of the government to take
private property, to asserting that "[i]njuries to property that
result from a valid exercise of the state's police power are
generally not compensable." Majority op., ¶13. Exceptions and
caveats abound but go unmentioned by the majority, leaving the
mistaken impression that the government may injure property and
1
No. 2020AP2146.rgb
deny compensation to the affected property owner merely by
invoking its police power. Of course this is not true and never
has been since the people established the government in order to
secure the people's rights:
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, 173 Mass. 495, 496, 53 N.E. 910 (1899) (emphasis
added).
¶28 In this case, we need not determine whether the
Department of Transportation (DOT) exercised its police power
"to justify . . . small diminutions of property rights" or
instead reached the point of physically appropriating private
property or so restricting it as to trigger the constitutional
command for compensation to the property owner. Chapters 32 and
86 of the Wisconsin Statutes outline various procedural avenues
for property owners to challenge the government's deprivation of
an asserted right of access and to seek compensation. In this
case, DEKK seeks compensation for DOT's alleged elimination of a
deeded right of access to STH 50. As the majority explains,
2
No. 2020AP2146.rgb
Wis. Stat. § 32.05 is not the proper statute for seeking just
compensation.
¶29 The majority confuses the dispositive procedural
issue, ostensibly rejecting DEKK's claim because "DOT's
jurisdictional offer to DEKK did not describe any removal of
access to STH 50." Majority op., ¶1. The majority's framing of
its holding suggests DOT could avoid paying just compensation by
simply omitting the removal of access to STH 50 from its
jurisdictional offer. Of course the law would not countenance
such gamesmanship. The court rejects DEKK's just compensation
claim against DOT because DEKK brought that claim under Wis.
Stat. § 32.05, which governs takings challenges initiated "for
any reason other than that the amount of compensation offered is
inadequate." Wis. Stat. § 32.05(5) (emphasis added). DEKK
purported in its complaint to seek only a "declaration that DOT
has no power or right under the police power to remove DEKK's
access rights to STH 50[.]" As litigation proceeded, DEKK
altered its posture. During the hearing on the parties' motions
for summary judgment, DEKK seemingly conceded DOT may possess
the power to remove its northern driveway and requested
compensation:
What we are looking for here is not an order blocking
the Department from closing the driveway. We are only
asking for summary [judgment] which says, if the
Department must close this driveway and can establish
that they need to do so for public safety reasons,
they can only do so by the payment of just
compensation.
¶30 Before this court, DEKK again frames the issue in
terms of compensation: "Can DOT remove a 'right of access,'
3
No. 2020AP2146.rgb
contained in a recorded deed made in an eminent domain
procedure, under the guise of an exercise of the police power,
without prior due process proceedings and without just
compensation?" A claim for just compensation cannot be
litigated under Wis. Stat. § 32.05, which prescribes procedural
rules the State must follow before condemning property. Crown
Zellerbach Corp. v. Dep't of City Dev. Of City of Milwaukee, 47
Wis. 2d 142, 148, 177 N.W.2d 94 (1970). Establishing, among
other things, rules regarding due notice, actions to contest,
and acceptance of offers, this statute prescribes no criteria or
procedure for determining whether an offered award reflects the
fair value of a condemned property. See generally Wis. Stat.
§ 32.05. Those rules are located in Wis. Stat. § 32.09,
entitled "Rules governing determination of just compensation."
Pursuant to this statute, courts must adhere to procedures
adapted to accurately ascertain the value of property loss due
to condemnation. Backus v. Waukesha Cnty., 2022 WI 55, ¶22, 402
Wis. 2d 764, 976 N.W.2d 492 (Rebecca Grassl Bradley, J.,
concurring). Section 32.09(8), for example, empowers the court
to require both the condemnor and the owner to "submit . . . a
statement covering the respective contentions" on a host of
factors affecting the value of a property.1 Section 32.09
1 Those factors include:
(a) Highest and best use of the property.
(b) Applicable zoning.
(continued)
4
No. 2020AP2146.rgb
procedures also ensure property owners receive the highest award
to which they are entitled. Wis. Stat. § 32.09(2) (requiring
just compensation be determined "on the basis of [the
property's] most advantageous use but only such use as actually
affects the present market value."). Property owners seeking
compensation for condemned property must bring their claims
under § 32.09.
¶31 The court's disposition of DEKK's claim is narrowly
decided on procedural grounds. The majority opinion
unnecessarily makes broad statements about the government's
authority to exercise its police power without compensation to
adversely affected property owners. This is a complex area of
(c) Designation of claimed comparable lands, sale
of which will be used in appraisal opinion
evidence.
(d) Severance damage, if any.
(e) Maps and pictures to be used.
(f) Costs of reproduction less depreciation and
rate of depreciation used.
(g) Statements of capitalization of income where
used as a factor in valuation, with supporting
data.
(h) Separate opinion as to fair market value,
including before and after value where
applicable by not to exceed 3 appraisers.
(i) A recitation of all damages claimed by owner.
(j) Qualifications and experience of witnesses
offered as experts.
Wis. Stat. § 32.09(8)(a)–(j).
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the law. Generalized statements without proper attention to
legal nuances may inadvertently have profound implications for
private property owners. Because the majority should have more
carefully circumscribed its pronouncements, I respectfully
concur but do not join the majority opinion.
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