Fromm v. Village of Lake Delton
2014 WI App 47
| Wis. Ct. App. | 2014Background
- Fromm residents sue Village of Lake Delton alleging inverse condemnation and takings under Wis. Stat. § 32.10 and the Wisconsin Constitution after June 2008 flood and erosion destroyed Fromm property.
- Dam at Dell Creek, created Lake Delton in 1927; Village owned dam since 1994 and made no structural changes through 2008.
- Three original release mechanisms existed; in 2005 floodgates were mechanically reduced from six feet to four feet, altering capacity.
- Fromm's property sits about a quarter mile from the dam in a saddle; elevation data show Fromm's property was lower than the dam’s lowest point before the flood.
- June 7–9, 2008 rainfall caused Lake Delton to rise, water overtopped the saddle area causing erosion and destruction of Fromm’s residence and property.
- The Village moved for summary judgment arguing no affirmative Village action caused the losses; court granted summary judgment for Village; Fromm appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Village action cause a taking? | Fromm: dam operation or capacity reductions caused loss. | Lake Delton did not result from Village action; no taking. | No taking; no affirmative government action shown. |
| Whether a per se taking rule applies here? | Fromm seeks a per se rule due to dam operation and flooding. | No per se rule; no direct government action proven. | No per se taking; not supported by record or law. |
| Impact of possible inaction (failure to act) on taking claim? | Village’s failure to act on known elevation differential supports a taking. | Inaction cannot establish a taking without affirmative action; Smith precedent requires action. | Inaction cannot support a taking; affirmative action required. |
Key Cases Cited
- Brenner v. New Richmond Reg'l Airport Comm'n, 343 Wis. 2d 320 (2012) (government action prerequisite for takings; not free to disregard action rule)
- Nicholson v. United States, 77 Fed. Cl. 605 (2007) (affirmative government action required; inaction not a taking)
- Arkansas Game & Fish Comm'n v. United States, 133 S. Ct. 511 (2012) (taking depends on degree of invasion; action/intent matters)
- Quebedeaux v. United States, 112 Fed. Cl. 317 (2013) (federal takings context; temporary flooding considerations)
- Anhalt v. Cities and Villages Mut. Ins. Co., 249 Wis. 2d 62 (2001) (temporary flooding not a taking under certain circumstances)
- Milwaukee Metro. Sewerage Dist. v. City of Milwaukee, 277 Wis. 2d 635 (2005) (rearticulates takings standards and government action requirement)