Hoffer Properties, LLC v. State of Wisconsin
874 N.W.2d 533
Wis.2016Background
- Hoffer Properties owned a 9.90-acre parcel abutting State Trunk Highway 19 (STH 19) with two direct driveways; STH 19 was designated a "controlled-access" highway under Wis. Stat. § 84.25 in 2002.
- In 2008 DOT, as part of a highway project, eliminated Hoffer's direct access and used eminent domain to take .72 acre to extend Frohling Lane (providing alternate access); DOT paid $90,000 for the .72 acre.
- Hoffer appealed valuation, claiming § 32.09(6)(b) required compensation for diminution in value caused by loss of direct access if a jury found the replacement access unreasonable.
- DOT contended the controlled-access designation was a lawful exercise of the police power and that providing alternate access (the Frohling Lane extension) precluded compensation under § 32.09(6)(b).
- The circuit court granted DOT partial summary judgment; the court of appeals affirmed, and the Wisconsin Supreme Court granted review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 84.25 authorizes DOT to eliminate an abutter's direct access and replace it with circuitous access | Hoffer: § 84.25 does not authorize elimination of existing direct access points; DOT may regulate but not eliminate preexisting access without compensation | DOT: § 84.25(3) authorizes DOT to "regulate, restrict or prohibit access" as it deems necessary or desirable, including eliminating direct access | Held: § 84.25(3) authorizes DOT to change/eliminate access points as it deems necessary or desirable; such actions are a police-power exercise (not per se compensable) |
| Whether provision/existence of alternate access requires a jury determination of "reasonableness" under § 32.09(6)(b) | Hoffer: If a jury finds the replacement access unreasonable, diminution in value is compensable in a partial-takings claim | DOT: When DOT acts under § 84.25 and provides alternate access, reasonableness is not the proper standard and § 32.09(6)(b) compensation is precluded as a matter of law | Held: In controlled-access cases, if alternate access exists the abutter is precluded from § 32.09(6)(b) compensation as a matter of law; no jury on reasonableness is required |
| Whether a partial eminent-domain taking of .72 acre requires inclusion of diminution in value from loss of direct access in the compensation for that taking | Hoffer: The taking of .72 acre and the termination of direct access are a single taking; diminution from loss of access should be included in compensation | DOT: The .72 acre taking is separate from DOT's police-power restriction of access; diminution from access loss is not a consequence of the .72 acre taking | Held: The .72 acre taking is distinct; diminution from loss of access caused by DOT's exercise of police power is not compensable in the § 32.09 partial-taking valuation for the .72 acre |
| Whether an owner has any remedy if replacement access is extremely circuitous or destructive of property use | Hoffer: (argued indirectly) unreasonable access should be remediable via § 32.09 jury process | DOT: Remedy, if any, is via inverse condemnation (Wis. Stat. § 32.10) for regulatory takings that deprive all or substantially all beneficial use | Held: If alternate access deprives the owner of all or substantially all beneficial use, that may constitute a regulatory taking actionable under § 32.10; otherwise no compensation under § 32.09(6)(b) |
Key Cases Cited
- Surety Savings & Loan Ass'n v. State (Div. of Highways), 54 Wis. 2d 438 (1972) (when DOT acts under controlled-access statute, inquiry is whether alternate access was provided)
- National Auto Truckstops, Inc. v. DOT, 263 Wis. 2d 649 (2003) (reasonableness jury question applied where highway was not designated controlled-access)
- Schneider v. State, 51 Wis. 2d 458 (1971) (no compensation required where controlled-access designation leaves reasonable alternate access)
- Nick v. State Highway Comm'n, 13 Wis. 2d 511 (1961) (diminution from exercise of police power not compensable where alternate access exists)
- Jantz v. State (Div. of Highways), 63 Wis. 2d 404 (1974) (diminution not recoverable where it is not consequence of the land actually taken)
- 118th Street Kenosha, LLC v. DOT, 359 Wis. 2d 30 (2014) (compensation for a taking cannot include damages for lost access if access loss resulted from a separate act)
- Seefeldt v. DOT, 113 Wis. 2d 212 (1983) (compensation required where reasonable access was not provided under statutes requiring frontage roads)
- Carazalla v. State, 269 Wis. 593 (1955) (circuity of travel from changed access not compensable)