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.

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.

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