The Wisconsin Supreme Court recently announced that it granted review of nine cases, out of about 100 petitions it considered. One of the nine cases affects businesses and concerns a business that had driveway access to a public highway.
The case, 118th Street Kenosha, LLC v. DOT, 2012AP2784, arose out of a large road-construction project in Kenosha. One aspect of the project involved DOT relocating part of 118th Avenue. Before the construction, a four-store shopping center had two driveways—one providing access from 118th Avenue and one providing access from a private road. DOT’s relocation of 118th Avenue eliminated the access from the public road to the shopping center. DOT also took a temporary limited easement (“TLE”), which it used to add a second driveway that provided an additional access point to the shopping center from the private road. Thus, there were still two driveways providing access to the property, but both were on the private road rather than on the public highway. This loss of access lowered the value of the shopping center.
DOT recorded a small eminent-domain damages award for the easement. The LLC owner of the property challenged the award in circuit court, arguing that the loss of access was a compensable taking measured by the resulting lower property value. The circuit court decided a motion in limine in DOT’s favor, excluding evidence of the change in property value. The parties then stipulated to a judgment that preserved the property owner’s right to appeal.
The court of appeals reversed and remanded for further proceedings. It held that the property owner could present evidence regarding the effect of 118th Avenue’s relocation on its property value.
The DOT petitioned for review. The issues before the court are (1) the methodology for valuing a TLE; (2) whether a property owner challenging a TLE valuation can present evidence regarding other damages caused by the same project; and (3) whether DOT, in exercising police power to relocate a highway, needs to compensate property owners for the decrease in their property value caused by the loss of access to their property.
Oral Argument will likely be scheduled for fall. A decision is expected by July 2015.
This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney.
This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary.
The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites.
In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.