988 N.W.2d 653
Wis.2023Background
- DEKK owns ~4 acres at STH 50 and CTH H with two driveways: one to STH 50 (DOT sought to close) and one to CTH H (to remain).
- A 1961 deed to Kenosha County (for DOT) reserved a restricted driveway to STH 50; subsequent use and scope of that reservation are unclear.
- In 2019 DOT sought to acquire a CTH H strip for a STH 50 improvement project; DOT’s appraisal noted the STH 50 driveway would have to be closed and said no compensation would be paid.
- DOT issued a jurisdictional offer under Wis. Stat. § 32.05 to buy the CTH H parcel for $272,100; the offer and attached plat did not describe or allocate compensation for any removal of STH 50 access.
- DEKK sued under Wis. Stat. § 32.05(5) contesting DOT’s right to remove STH 50 access. The circuit court granted DEKK summary judgment; the court of appeals reversed on the merits but did not decide whether § 32.05(5) was the proper procedural vehicle. The Wisconsin Supreme Court held § 32.05(5) did not apply and reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DEKK may challenge DOT's closure of the STH 50 driveway by filing a "right-to-take" action under Wis. Stat. § 32.05(5) | DEKK argued it could obtain relief/compensation under § 32.05(5) for DOT's removal of an alleged access right recorded in earlier deed | DOT argued § 32.05(5) only permits challenges to the property described in the jurisdictional offer; the offer here did not describe any STH 50 access rights | Held: § 32.05(5) does not apply because the jurisdictional offer did not describe removal of STH 50 access; DEKK’s claim under § 32.05(5) is barred |
| Whether DOT must compensate DEKK for closing the driveway (compensability/merits) | DEKK contended the elimination of deeded access requires just compensation | DOT contended closure could be a police-power action (noncompensable) or otherwise not part of the condemned parcel here | Not reached: Court declined to decide on compensability after resolving the procedural defect |
Key Cases Cited
- 118th St. Kenosha, LLC v. DOT, 359 Wis. 2d 30 (2014) (separate project components may have distinct compensability; statutes are not interchangeable)
- Warehouse II, LLC v. DOT, 291 Wis. 2d 80 (2006) (§ 32.05(5) permits challenge only to condemnor's right to take the property described in the jurisdictional offer)
- Waller v. American Transmission Co., 350 Wis. 2d 242 (2013) (uneconomic remnant claims may be raised under the right-to-take statute in appropriate circumstances)
- TFJ Nominee Tr. v. DOT, 244 Wis. 2d 242 (2001) (different statutory remedies exist for different types of DOT property-related actions)
- Nick v. State Highway Comm'n, 13 Wis. 2d 511 (1961) (injuries from valid police-power exercises are generally not compensable)
- Crown Zellerbach Corp. v. Dep't of City Dev. of City of Milwaukee, 47 Wis. 2d 142 (1970) (§ 32.05 prescribes procedural rules for condemnation; compensation procedures lie in § 32.09)