118th Street Kenosha, LLC v. Wisconsin Department of Transportation
856 N.W.2d 486
Wis.2014Background
- 118th Street Kenosha, LLC (LLC) owns a 4‑store commercial strip that abutted 118th Avenue and had direct driveway access to it and secondary access via 74th Place.
- In 2010 the Wisconsin DOT (DOT), as part of a highway reconstruction project, (1) relocated 118th Avenue one block east (eliminating the property’s direct access/proximity to 118th Avenue), (2) acquired a .262‑acre temporary limited easement (TLE) to construct a new double‑throated driveway to 74th Place, and (3) built that driveway; DOT paid the LLC $21,000 for the TLE.
- The LLC’s appraiser attributed a $400,000 diminution in property value to the loss of direct access and proximity to 118th Avenue after relocation; the LLC sought additional compensation under Wis. Stat. § 32.09(6g) (compensation for the taking of an easement).
- The circuit court granted DOT’s motion in limine excluding evidence of diminution in value from the 118th Avenue relocation; the court of appeals reversed. DOT petitioned to the Wisconsin Supreme Court.
- The Supreme Court assumed (without deciding) TLEs might be compensable under § 32.09(6g) but held that § 32.09(6g) permits compensation only for damages caused by the easement itself, not for diminution caused by a separate relocation of the roadway.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a temporary limited easement is compensable under Wis. Stat. § 32.09(6g) | § 32.09(6g) covers “the taking of an easement” without distinguishing temporary vs permanent, so TLEs are included | DOT: § 32.09(6g) ill‑suited to TLEs; rental value under constitutional takings law or § 32.09(6) is appropriate | Court assumed without deciding TLEs could be covered but did not resolve valuation question (assumed for analysis) |
| Whether damages for the TLE may include diminution caused by relocation of 118th Avenue | The TLE was integral to the larger project; § 32.09(6g)’s instruction to “assume completion of the public improvement” permits inclusion of losses from the relocated road | DOT: Damages recoverable under § 32.09(6g) must be caused by the easement; here relocation—not the easement—caused the loss of access/proximity | Held: Damages under § 32.09(6g) are limited to losses caused by the easement itself; since the TLE did not cause the loss from the road relocation, those diminution claims were excluded |
| Whether the roadway relocation was an exercise of police power barring compensation for loss of access | LLC: relocation was the exercise of eminent domain powers and loss of access is compensable | DOT: relocation was proper police‑power regulation; where reasonable access remains, no compensation is required | Court declined to decide police‑power vs eminent‑domain characterization because exclusion of evidence under § 32.09(6g) was dispositive |
| Whether circuit court abused discretion by granting DOT’s motion in limine | LLC: evidence of diminution was relevant to valuation under § 32.09(6g) | DOT: evidence irrelevant because the TLE did not cause the diminution | Held: circuit court did not err; evidence of loss from relocation properly excluded from § 32.09(6g) claim |
Key Cases Cited
- Jantz v. State, 63 Wis. 2d 404 (1974) (damages for a taking are limited to consequences of that taking; separate roadway relocation damages are not recoverable as part of the partial taking)
- More‑Way North Corp. v. State Highway Comm’n, 44 Wis. 2d 165 (1969) (temporary limited easement did not effect a permanent taking; distinguish easement effects from other project impacts)
- Carazalla v. State, 269 Wis. 593 (1955) (on rehearing: diminution from highway relocation is distinct from compensation for a taking and should not be included in valuation for the taking)
- Schneider v. State, 51 Wis. 2d 458 (1971) (partial takings compensation cannot include diminution caused by separate access restrictions or highway designation changes)
- National Auto Truckstops, Inc. v. Dep’t of Transp., 263 Wis. 2d 649 (2003) (when the property taken includes the land containing a landowner’s only access points, jury may assess whether the remaining access is reasonable and award compensation for loss of access)
- Hoekstra v. Guardian Pipeline, LLC, 298 Wis. 2d 165 (2006) (damages under § 32.09(6g) are limited to those caused by the easement at issue)
- Fields v. Am. Transmission Co., 324 Wis. 2d 417 (2010) (compensation for a new easement is limited to damages caused by that new easement, not preexisting encumbrances)
- Savage v. Am. Transmission Co., 346 Wis. 2d 130 (2013) (property owners may recover diminution caused by restrictions imposed by the new easement)