Shared driveway resulting from DOT condemnation may be undesirable, but does not constitute a taking

by Hannah Dankbar

Bailey v Wisconsin DOT
Wisconsin Court of Appeals, April 23, 2015

Bradley and Caroline Bailey appealed the circuit court’s dismissal of their takings claim against the Wisconsin DOT. The Baileys claimed that the DOT took part of their land that resulted in a change in access to their property and left them with an “uneconomic remnant” which, according to Wis. Stat. 32.05(3m) means that the “property remaining is of such size, shape or condition as to be of little value or of substantially impaired economic viability.”

The DOT condemned two parcels of the Baileys’ property as part of a highway construction project.  As part of this project the DOT moved the Baileys’ driveway and created a new access point from the highway. The Baileys claimed that the DOT’s actions left them with an “uneconomic remnant,” but the circuit court dismissed the complaint.

The Baileys first argued that the circuit court erred because the DOT failed to make a prima facie case that the “Baileys’ property had reasonable access after condemnation.”  The DOT responded that the question of reasonable access is separate from, and plays no part in a determination whether an uneconomic remnant exists under the statute.

The Court of Appeals dismissed the Baileys’ argument over any supposed stand-alone “reasonable access” issue. Instead it focused on whether the change in access left the Baileys with an uneconomic remnant. The Baileys submitted four affidavits in support of this claim: one by the Baileys’ attorney, two by individuals the Baileys listed as experts, and one by Caroline Bailey. The circuit court excluded everything in the attorney’s and experts’ affidavits based on lack of foundation and other admissibility factors.  Caroline Bailey’s affidavit was the exception. She stated that they now shared a driveway with a neighbor whom they find difficult and threatening, and with whom they believe they will be unable to agree on driveway maintenance.  The Court of Appeals found that this only demonstrated that the Baileys’ situation is undesirable; not that the remaining property is “of little value or of substantially impaired economic viability.”

Because of these reasons the Court of Appeals affirmed the circuit court’s dismissal.

DoT must pay just compensation for property erroneously recorded as “dedication” on plat map

by Hannah Dankbar and Gary Taylor

Somers USA, LLC v. Wisconsin Department of Transportation
Wisconsin Court of Appeals, March 25, 2015

Somers purchased about 47 acres in 2007 to build a truck stop off of I-94. At the time the state was planning on using about 9.5 of those acres for a frontage road, and about 3 acres for an on ramp for a highway project. An engineering company helped create the Certified Survey Map (CSM).  The initial draft of the CSM reserved both the 9.5-acre and the 3-acre parcels as “Future Wisconsin D.O.T. Right-of-Way.”  The Kenosha County Land Use Committee approved the CSM without any conditions or communications regarding land dedication for public use.

In 2008 when Somers recorded their final CSM it dedicated the 9.5 acres as “Road Dedication for Future Highway Purposes,” and the 3 acres as “a road reservation for potential future state highway purposes.” All parties agree that Somers never intended to dedicate land for the highway project and that none of the governmental bodies involved had required or asked for a dedication. Individuals involved with drafting and signing the CSM stated that they do not know how the “dedication” language wound up in the document.  The State thereafter built a frontage road and on-ramp on the two parcels without compensating Somers, relying on the “reservation” and “dedication” language in the CSM to give it a right to the property without any requirement to pay Somers for the land taken. Somers filed a complaint seeking just compensation for their land. The court ordered the state to pay Somers $500,000 plus attorney fees, costs and interest. The state appealed this decision.

The Fifth Amendment of the US Constitution and Article I section 13 of the Wisconsin Constitution prohibit the taking of land without just compensation. The state relied on Wis. Stat. §236.29(1) which states, ““[w]hen any plat is certified, signed, acknowledged and recorded as prescribed in this chapter, every donation or grant to the public … marked or noted as such on said plat shall be deemed a sufficient conveyance to vest the fee simple of all parcels of land so marked or noted.” However, for the state to rely on this statute the land must be dedicated according to proper procedure under Wis. Stat. §236.34(1m)(e), which require a local governing board to approve the dedication in the CSM. No governmental board involved in Somers’ development approved any road dedication or land grant for inclusion in the CSM; therefore, the CSM lacked the force and effect required to convey the property to the State.

The court went on:  “Undeterred by the evidence that no dedication was ever intended or approved, the State proffers the absurd argument that it can still take Somers’ property without compensation as it was entitled to rely on an invalid dedication in a CSM.”

When a court leads by calling an argument “absurd” you can anticipate the results….

The court found no legal dedication, and therefore found that the state owes just compensation to the Somers.






Platted village streets constitute “public highway” for purpose of defense to acquiescence claim

by Hannah Dankbar

Haynes v Village of Beulah
Michigan Court of Appeals, December 9, 2014

The Haynes argue that they are entitled to two strips of land within the platted rights-of-way of Lake Street and Commercial Avenue in the Village of Beulah citing the theory of acquiescence. The Haynes own Lots 10,11 and part of Lot 7 in Block 2. These lots are bordered by Lake Street on the northwest side and Commercial Avenue on the southwest side. Before 1968 the prior owners of the Haynes’ property installed railroad ties along Lake Street, separating the portion of the road used for travel from the grass and trees. On the southwest, a rock wall was installed in the 1950s to separate the part of Commercial Avenue used for travel from landscaping plants, a portion of the Haynes’ driveway, a maple tree and a strip of grass owned by the Haynes.

In 2012, the Village of Beulah introduced plans to create angled parking, a new sidewalk and a streetscape in the platted right-of-way of each street and would occupy land owned by the Haynes. The Haynes brought suit to prevent this action. The trial court granted the Village of Beulah’s motion for summary disposition based on MCL 247.190.

MCL 247.190 provides as follows:

 All public highways for which the right of way has at any time been dedicated, given or purchased, shall be and remain a highway of the width so dedicated, given or purchased, and no encroachments by fences, buildings or otherwise which may have been made since the purchase, dedication or gift nor any encroachments which were within the limits of such right of way at the time of such purchase, dedication or gift, and no encroachments which may hereafter be made, shall give the party or parties, firm or corporation so encroaching, any title or right to the land so encroached upon.

Plaintiffs argued that MCL 247.190 does not apply to platted village streets or property acquiescence claims.  The issue in this case is the definition of “public highways,” which is not defined in the statute. “Highway” has been defined through multiple cases and multiple legal dictionaries before the enactment of MCL 247.190. These definitions encompass a broad reading of the term “highway.” Because of this, the Court of Appeals found that the trial court did not err in broadly construing the term to include village streets.

The Haynes also argued that MCL 247.190 does not apply to property acquiescence claims, but the Court of Appeals disagreed. MCL 247.190 provides, “no encroachments” on a public highway “shall give the party or parties, firm or corporation so encroaching, any title or right to the land so encroached upon.” Nothing in the statute permits the court to distinguish between different legal theories used to assert a private right or claim to any portion of a public highway.  A claim for acquiescence constitutes an encroachment.

The Haynes also argued that the unimproved portions of platted right-of-ways are not “public highways” that are entitled to protection under MCL 247.190. The Court of Appeals disagreed with this assertion, as well.  It is sufficient for the spending of public funds on a road in a dedicated right-of-way to constitute public acceptance of the entire width, and therefore have the entire width constitute “public highway,” even if the municipality never improves the specific strips of land within the right-of-way.

Judgment for the Village of Beulah was affirmed.

Elimination of median cut not a taking

by Gary Taylor

Buck’s, Inc. v. City of Omaha
(Nebraska Court of Appeals, November 25, 2014)

Buck’s, Inc. owns and operates a gas station on the northwest corner of the intersection of 144th Street and Stony Brook Boulevard in Omaha. In August 2009, the City eliminated a cut in the median on Stony Brook Boulevard that gave eastbound traffic access to the gas station. No access points to the gas station were eliminated. The city engineer testified that the decision to eliminate the median cut was made to address safety concerns associated with the anticipated increased traffic generated by a new grocery store in the area. The city’s right-of-way manager testified that the City did not acquire any property or property interest from Buck’s for this project, and affirmed that Buck’s had three entrances to its property prior to the project, and continued to have three entrances after project completion.

Buck’s nevertheless brought an inverse condemnation action against the City. A board of appraisers was appointed, and Buck’s was awarded $30,000. Both parties appealed to the district court, which entered summary judgment for the City. Buck’s appealed.

The Nebraska Court of Appeals noted that the right of an owner of property that abuts a street or highway to have ingress and egress by way of the street is a property right in the nature of an easement, and the owner cannot be deprived of such right without due process of law and compensation for loss. The court also noted, however, that “as to damages claimed by reason of a change in the flow of traffic by placing medians in the center of a street, [the damages] result from the exercise of the police power and are noncompensable as being incidental to the doing of a lawful act.” After the median cut was closed, Buck’s still had access to Stony Brook Boulevard. “The fact that left-hand turns are now restricted is but an inconvenience shared with the general public.” The Court of Appeals affirmed the district court.

“Unused right-of-way” includes property previously used for roadway purposes

by Gary Taylor

Tunis E. Den Hartog, et al. v. City of Waterloo
(Iowa Supreme Court, May 30, 2014)

The state of Iowa transferred control of a state highway – now known as San Marnan Drive – and its right-of-way to the city of Waterloo in 1983. The city has maintained it by grading and mowing since that time. The city recently reached agreement to transfer the property to Sunnyside South Addition, LLC, for one dollar. Sunnyside proposes to relocate San Marnan Drive in order to place residential development where the road is currently located. Some Waterloo taxpayers filed suit, claiming that the transaction failed to comply with the notice and sale provisions of Chapter 306 of the Iowa Code, which governs the establishment, alteration, and vacation of roads. The city responded that the procedures of Chapter 306 cited by the taxpayers (specifically, section 306.23) only apply to property acquired for roadway purposes that was never used as a roadway.

Iowa Code 306.23 provides in part:

1. The agency in control of a tract, parcel, or piece of land, or part thereof, which is unused right-of-way shall send by certified mail to the last known address of the present owner of adjacent land from which the tract, parcel, piece of land, or part thereof, was originally purchased or condemned for highway purposes, and to the person who owned the land at the time it was purchased or condemned for highway purposes, notice of the agency’s intent to sell the land, the name and address of any other person to whom a notice was sent, and the fair market value of the real property based upon an appraisal by an independent appraiser.
2.  The notice shall give an opportunity to the present owner of adjacent property and to the person who owned the land at the time it was purchased or condemned for highway purposes to be heard and make offers within sixty days of the date the notice is mailed for the tract, parcel, or piece of land to be sold.  An offer which equals or exceeds in amount any other offer received and which equals or exceeds the fair market value of the property shall be given preference by the agency in control of the land. If no offers are received within sixty days or if no offer equals or exceeds the fair market value of the land, the agency shall transfer the land for a public purpose or proceed with the sale of the property.

The parties dispute the meaning of “unused right-of-way.” The city argued that it refers only to land never in use for roadway or related purposes – the implication being that section 306.23 does not apply in this case. The taxpayers argue that the phrase should be read to include any land which the city has determined will no longer be needed or used for roadway purposes. This could include land currently in use for roadway purposes, so long as the city has determined that the land will not be used as such in the future. Under this reading section 306.23 applies and the property should have first been offered to adjacent landowners for purchase at or above fair market value.

In siding with the taxpayers, the Iowa Supreme Court cited several “linguistic and structural cues…the statutory purpose, and the legislative history [of chapter 306].” Noting that the owner of land abutting a highway may suffer special damage because of its vacation, the hearing procedures in chapter 306 protect their unique property interests. The Court looked to several provisions in the chapter that suggest a broad reading of the term “unused”; i.e., to apply to land that will not be used for roadway purposes going forward, regardless of whether it may have been used for such purposes previously.

The Supreme Court remanded for entry of an order prohibiting the city from the sale or transfer of the property to Sunnyside without first following the requirements of section 306.23.

First STROADs, now SNECKDOWNs. Two weeks of new traffic terminology

Last week I linked to an article about STROADs – the street/road hybrid that moves traffic at speeds too fast to support adjacent economic investment, but too slow for efficient transportation. This week finds me reading about SNECKDOWNs – piles of plowed snow found at street intersections that act as de facto curb extensions (a.k.a. “neckdowns,” making snow neckdowns into…SNECKDOWNs!). The article is here. In it Clarence Erickson, a documentarian who focuses on pedestrian- and bicycle-friendly streets, says

When that snow piles up at a lot of intersections in neighbourhoods, you see that space where they could put a kerb extension,” says Eckerson. “The cars still can make the turn, including trash trucks and school buses, but you see the slow, more deliberate turn around the corner instead of cutting it….It’s free. You don’t have to do a crazy expensive traffic calming study. It provides a visual cue into how people behave in transportation.

(If the spellings didn’t give it away, the article is from the BBC News Magazine.)

The STROAD…. futon of transportation alternatives!

This article from Atlantic cities caught my eye; because I had never heard the term “STROAD,” and because the relationship between STROADs and land use have been hiding in plain view from me.  From the article:

The STROAD design — a street/road hybrid — is the futon of transportation alternatives. Where a futon is a piece of furniture that serves both as an uncomfortable couch and an uncomfortable bed, a STROAD moves cars at speeds too slow to get around efficiently but too fast to support productive private sector investment. The result is an expensive highway and a declining tax base….Anytime you are traveling between 30 and 50 miles per hour, you are basically in an area that is too slow to be efficient yet too fast to provide a framework for capturing a productive rate of return.

What are the STROADs in your community doing to your tax base?  Think about the types of development you find along the 45 mph limit STROADs in your community.  How much of it that is 20 years old or older looks like it is ready for the wrecking ball already?  How many of the businesses along your old STROADS have relocated to your new STROADS, leaving underutilized buildings?

Grant of land for county highway was an easement; land could be included to meet minimum acreage requirement

by Victoria Heldt

Wade Berger and Ilona Berger v. Town of New Denmark, William Kreuger, Norbert Buresh
(Wisconsin Court of Appeals, January 10, 2012)

The Bergers own two contiguous plots of land in the Town of New Denmark.  The two plots are zoned for Agricultural use.  Since 2003, they have been attempting to obtain building permits for both plots.  The Town’s zoning ordinances require a plot to have at least 35 acres in area in order to grant a building permit.   At a meeting before the Town Board, Wade Berger demonstrated how part of plot A had been added to plot B so that plot B would comply with the 35 acre requirement.  In addition, the Bergers purchased additional property next to plot A in order for plot A to comply with the requirement.  In the presentation, Berger showed each plot having 35.190 acres.

The Town denied their request, claiming that the plots did not meet the 35 acre requirement.  They argued that the land over which County Highway T ran should not be included when totaling the acres.  When excluded, the parcels only totaled 34.5 acres each.  The Town argued that the Selners, the previous owners of the land, had granted full title of the property underlying the highway to the Town in the 1950’s when the road was constructed.  The district court ruled in favor of the Town.

On appeal, the Court focused primarily on the language that described the conveyance of property in the 1950s.  The title of the document read “Conveyance of Land for Highway Purposes.”  The Court noted that in previous cases, it was recognized that municipalities did not receive ownership of land used for a highway, only a right of way over such property.  It further pointed out that the language “right of way” used in the conveyance strongly suggests it was granting the County a “right to a reasonable and usual enjoyment” of the land and not full ownership rights.  It found that, unless clearly stated otherwise, a granting of land for the purpose of a highway is meant to serve only as an easement. As a result, both plots were determined to be over 35 acres.

Since this decision only clarified the plot’s compliance with the 35-acre requirement and not whether it is otherwise eligible for building, further proceedings were necessary.  The Court reversed the district court’s decision and remanded it for further judgment.

The Mitchell County steel wheels case

by Gary Taylor

Mitchell County, Iowa v. Zimmerman
(Iowa Supreme Court, February 3, 2012)

Members of the Old Order Groffdale Conference Mennonite Church are forbidden from driving tractors unless their wheels are equipped with steel cleats. According to the defendant Zimmerman, the biblical passage from which the rule derives is Romans 12:2, which reads,

And be not conformed to this world: but be ye transformed by the renewing of your mind, that ye may prove what is that good, and acceptable, and perfect, will of God.”

The Order’s members have been using steel wheels for at least forty years, the church having determined that steel wheels would contribute to the maintenance of small-scale farming and help ensure that tractors are not used for pleasure purposes and thereby displace the horse and buggy.  The defendant testified, “The religious practice, it has to be steel hitting the surface, [be] it soil, [be] it highway, [be] it concrete.” Over the years, to minimize possible road damage, the steel cleats and lugs have been made wider and have been mounted on rubber belts to provide cushioning.

For many years Mitchell County (Iowa) officials did not object to the Mennonites’ use of steel wheels; however, in 2009 the county spent $9 million on a road resurfacing project.  The county “white-topped” (covered existing roads with concrete) several roads.  County officials testified that they found that the steel wheels caused pavement cracking, and took the paint off of the white-topped road.  As a result, in September 2009, the county adopted the following ordinance; its stated purpose being “to protect Mitchell County hard surfaced roads”:

No person shall drive over the hard surfaced roadways, including but not limited to cement, concrete and blacktop roads, of Mitchell County, or any political subdivision thereof, a tractor or vehicle equipped with steel or metal tires equipped with cleats, ice picks, studs, spikes, chains or other projections of any kind or steel or metal wheels equipped with cleats, ice picks, studs, spikes, chains, or other projections of any kind.

Violators are subject to a maximum fine of $500 or 30 days in jail, or both.  A civil penalty may also be imposed equal to the amount necessary to repair the damage to the road.  Iowa Code 321.442 contains similar prohibitions on the use of tires with  “block, stud, flange, cleat, or spike or any other protuberances of any material other than rubber,” but the penalty is only a $10 fine. County officials testified that the county ordinance was intended to have identical prohibitions to the state law, but with stiffer sanctions for violations.  Zimmerman was charged with violating the county ordinance.  The district court found that the ordinance “substantially burdened religious practice” but also determined that the ordinance was neutral (treating secular and religious conduct the same), generally applicable, and not motivated by religious animosity, citing the US Supreme Court case Employment Division, Department of Human Resources of Oregon v. Smith. The district court upheld the citation.  Zimmerman appealed.

The question before the Iowa Supreme Court was whether the ordinance violates the religious rights of the church members under either the United States or the Iowa Constitution.  In a unanimous verdict, the Court determined that, indeed, the Mitchell County ordinance violated the Free Exercise Clause of the First Amendment of the United States Constitution (it did not reach the question whether the defendant’s rights under the Iowa Constitution had been violated). The Court found that the ordinance was neutral on its face and in its operation, but that the ordinance was not of general applicability because it contained exemptions that are inconsistent with its stated purpose of protecting Mitchell County’s roads. The county ordinance carried over the exceptions to the prohibition found in Iowa Code 321.442, those being

1. Farm machinery with tires having protuberances which will not injure the highway.
2. Tire chains of reasonable proportions upon any vehicle when required for safety because of snow, ice, or other conditions tending to cause a vehicle to skid.
3. Pneumatic tires with inserted ice grips or tire studs projecting not more than one-sixteenth inch beyond the tread of the traction surface of the tire upon any vehicle from November 1 of each year to April 1 of the following year, except that a school bus and fire department emergency apparatus may use such tires at any time.

The Court concluded that the exceptions that allow school buses and fire department vehicles to have studded tires year-round undermine the purpose of protecting the roads; indeed, this still would be the case  if the ordinance was specifically stated to have the dual purposes of protecting roads and providing for the safety of school buses and emergency vehicles.  Moreover, the County “declined in September 2009 to regulate various other sources of road damage besides steel wheels. Rather, it chose to prohibit only a particular source of harm to the roads that had a religious origin.”

An ordinance can fail the general applicability test and still pass “strict scrutiny,” if the ordinance “serves a compelling state interest and is the least restrictive means of attaining that interest.” The Court, however, also found that the ordinance could not survive strict scrutiny.  Given the lack of evidence of the degree to which the steel lugs harm the County’s roads, in light of the undisputed fact that other events cause road damage, and the undisputed fact that the County had tolerated steel lugs for many years before 2009, “it is difficult to see that an outright ban on those lugs is necessary to serve a compelling state interest.” The Court pointed to neighboring Howard County, where an agreement was reached with the Mennonite community to accept a financial deposit to cover possible road damage in lieu of banning steel wheels, as an example of a less restrictive means of accomplishing the goal of road preservation available to Mitchell County.

The Court reversed the lower court’s affirmation of the citation against Zimmerman, and remanded for entry of an order of dismissal.

“Acting together” does not mean town boards must act as single entity on petition for road discontinuance

by Victoria Heldt

Dawson v. Town of Jackson, Town of Cedarburg
(Wisconsin Supreme Court, July 19, 2011)

Dale Dawson, Gudrun Dawson, and Edward Thomas (the Dawsons) are the owners of property that borders a half-mile portion of Wausaukee Road, a town line highway that lies on and across the municipal boundary line between the towns of Cedarburg and Jackson.  The Dawsons requested that a half-mile portion of Wausaukee Road (which comes to a dead end stop and is surrounded by their property) be discontinued.  In order to discontinue a highway on a line between two towns, the parties must submit an application describing the area of the highway and, upon completion of the application, “the governing bodies of the municipalities, acting together, shall proceed under ss. 82.10 to 82.13 (Wis. Stat. § 82.21 (2)).” (emphasis added).  The Dawsons submitted a joint application to the boards of Jackson and Cedarburg in addition to a letter containing additional discussion of statutory requirements.  In 2008, the two boards held a joint meeting at which all five Jackson board members were present and three of five Cedarburg board members were present.  The boards voted separately with all five Jackson board members voting in favor of discontinuing the road and the three Cedarburg members voting in opposition.

Subsequent to the hearing, Jackson issued an order to vacate the road, but Cedarburg declined to do the same.  When Lannon Stone Products, Inc. placed a sign on the road informing citizens of the closure, Cedarburg issued two citations to the corporation for “erecting a prohibited sign on streets” and for “public nuisance-obstruct/tend to obstruct street.”  The Dawsons sought a declaratory judgment arguing that the two boards “acted together” when they took a vote and that, since the aggregate vote was 5-3, the road should be discontinued.  The circuit court ruled in favor of the Dawsons, and the Wisconsin Court of Appeals affirmed.

This case turns on the interpretation of the phrase “acting together.”  The Court looked at whether that phrase means the two boards should act as one body and count their votes in the aggregate, or whether it means they must vote as separate entities when deciding to discontinue a highway.  The Court first looked to the context in which the phrase “acting together” appeared.  The statute specified that the two governing bodies should act together to “proceed under ss. 82.10 to 82.13.”  These sections mandate that the boards must provide notice requirements after they receive the application, must personally examine the highway, and must record any decision made with the register of deeds in each county.  The Court noted that the two boards would not physically do any of these three acts at the same time or at the same location.  The context of the phrase supported a non-literal interpretation of “acting together,” and suggested that the phrase simply means the two bodies should come together and cooperate in the matter.

The Court also acknowledged Cedarburg’s example of a similar statute (Wis. Stat. §83.42 (5)) which governs the modification of rustic roads.  It reads that, in order for a road to be designated as a rustic road or withdrawn from the rustic road system, approval must be given by “the governing bodies of all affected municipalities.”  This language suggests that the legislature envisioned the two governing bodies voting and approving of a decision separately.  However, the Court also noted that the statute governing roads bordering two towns is not as clear cut as the one governing rustic roads, so it does not completely solve the problem.

The Court looked next to the history of the statute, tracing its roots back to 1849.  The original versions of the statue hinted at a non-literal translation of “acting together” with phrases such as “each town shall have all the rights and be subject to all the liabilities, in relation to the part of such highway to be made or repaired by such town, as if the same were wholly located in such town.”  It also described the process in which the boards were to proceed using a plural “they,” suggesting that two separate bodies were to weigh in on the discontinuation of a road.  The Court also pointed out that interpreting the phrase “acting together” in a literal sense would undermine the independence and autonomy of municipalities.  In addition, it would risk the event of an unjust vote if one board had more members than the other.

After making its case, the Court reversed the appellate court’s decision and ruled that the phrase “acting together” means only that the two boards must come together and cooperate to resolve an application for the discontinuance of a road.





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