118th Street Kenosha, LLC v. Wisconsin Department of Transportation
841 N.W.2d 568
Wis. Ct. App.2013Background
- 118th Street Kenosha, LLC owns a four‑unit shopping center near SH 50 and I-94 in Kenosha.
- DOT reconstruction eliminated the 118th Avenue entry, leaving two entrances from a private road.
- A temporary easement was taken along the private road to create a new private-road entrance.
- DOT recorded damages for the easement; 118th Street Kenosha challenged the award and the court granted in limine relief restricting other damages.
- Trial court held the easement taking did not cause loss of direct access or proximity to 118th Avenue; parties stipulated to preserve appeal.
- On appeal, 118th Street Kenosha argues loss of access/proximity damages should be recoverable under Wis. Stat. § 32.09(6g).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether loss of access/proximity evidence is admissible under §32.09(6g). | Kenosha argues §32.09(6g) requires considering access/proximity losses. | DOT asserts the easement is separate and did not cause access loss. | Reversed; evidence allowable on remand. |
| Whether the taking of the temporary easement was integrally connected to the loss of access to 118th Avenue. | The temporary easement enabled vacation of 118th Avenue and loss of direct access. | The easement and street vacation are separate acts; one does not cause access loss. | Reversed; connection acknowledged for remand. |
| Whether §32.09(6g) mandates deduction for loss or damage items (b) and (e) in this case. | Loss of access and proximity damages should be included per (6)(b) and (6)(e). | Only the easement-related damages are compensable; other items are not applicable here. | Reversed; consideration of those items permitted on remand. |
Key Cases Cited
- Hastings Realty Corp. v. Texas Co., 28 Wis. 2d 305 (1965) (access to highway is an incident of ownership)
- Standard Theatres, Inc. v. DOT, 118 Wis. 2d 730 (1984) (liberal construction for compensation statutes)
- 260 N. 12th St., LLC v. DOT, 338 Wis. 2d 34 (2011) (consider every element affecting fair market value)
- Clarmar Realty Co. v. Redevelopment Auth. of Milwaukee, 129 Wis. 2d 81 (1986) (fair market value guidance for takings)
- Olson v. United States, 292 U.S. 246 (1934) (owner entitled to be put in as good position economically)