914 N.W.2d 660
Wis.2018Background
- Adams Outdoor owns a small parcel near Madison's Beltline Highway with a two-faced, legal nonconforming billboard (east- and west-facing panels); the west face lost visibility after the City built a pedestrian bridge adjacent to the parcel.
- Adams bought the parcel in 2007; it continued to operate both faces until the bridge allegedly blocked the west-facing panel and advertisers ceased renting it.
- Adams claimed a taking under Wisconsin Stat. § 32.10 (inverse condemnation), alleging the City deprived it of all economically beneficial use of the west-facing sign/its vested nonconforming rights, seeking just compensation.
- The City moved for summary judgment, arguing there is no cognizable property right to continued visibility from a public road and no physical occupation occurred.
- The circuit court granted summary judgment for the City; the court of appeals affirmed. The Wisconsin Supreme Court granted review and affirmed, holding no protected property interest in visibility existed.
Issues
| Issue | Plaintiff's Argument (Adams) | Defendant's Argument (City) | Held |
|---|---|---|---|
| Does a protected property interest exist? | Adams: the relevant interest is its vested right to legally nonconforming use of the billboard (display to be seen); loss of visibility destroys that preexisting use. | City: no recognized property right to continued/unobstructed visibility from a public road; public-road changes are foreseeable. | Held: No — the asserted interest is effectively a "right to visibility," which is not a cognizable property right for takings purposes. |
| Was there a taking when the bridge obstructed the west-facing panel? | Adams: obstruction deprived it of all economically beneficial use of that side (and its vested rights), so this is a compensable taking. | City: no physical occupation, and consequential impairment of view is not a taking under precedent. | Court did not reach full takings-on-the-merits because no protected interest exists; thus claim fails. |
| Does precedent recognizing billboard permits or nonconforming uses change the analysis? | Adams/dissent: billboard permits are property (and may be separate parcels/denominators); nonconforming permit value merits protection. | City/majority: even nonconforming status does not create a right to be seen; public street evolution can alter visibility. | Held: Majority rejects visibility as a protected right; the argument that a separate permit denomination claims was not accepted as the controlling basis in this record. |
| Are consequential damages from public improvements compensable as a taking? | Adams: where government action eliminates the only economically viable use (esp. for a separate permit), compensation is required. | City: consequential or incidental impairments (e.g., obstructed view, reduced traffic) are not constitutional takings. | Held: Incidental/foreseeable impairments from proper exercise of governmental powers (like road changes) are not takings. |
Key Cases Cited
- Randall v. City of Milwaukee, 212 Wis. 374, 249 N.W. 73 (1933) (consequential impairment of view or access from public-street improvements is not a taking)
- Wis. Med. Soc'y, Inc. v. Morgan, 328 Wis. 2d 469, 787 N.W.2d 22 (2010) (takings elements and approach to defining protected property interests)
- Zealy v. City of Waukesha, 201 Wis. 2d 365, 548 N.W.2d 528 (1996) (value the property as a whole; rezoning that leaves substantial uses intact is not a taking)
- Lucas v. S.C. Coastal Council, 505 U.S. 1003 (1992) (categorical rule: deprivation of all economically beneficial use can be a taking)
- Murr v. Wisconsin, 137 S. Ct. 1933 (2017) (factors for identifying the relevant property ‘denominator’ in takings analysis)