A recent Wisconsin Supreme Court decision came out against jury trials for landowners in some controlled access highway cases. (Full disclosure: Eminent Domain Services, LLC submitted an amicus brief addressing the history of controlled access highways.) You can read the court’s full opinion here, but we wanted to focus here on Justice Prosser’s dissent.
The landowner here, Hoffer Properties, owned 9.90-acres in Jefferson County west of Watertown abutting STH 19 to the south. In 2002, STH 19 was designated “controlled access,” according to Wis. Stat. § 84.25. Hoffer retained direct access to STH 19 by means of two driveways. Then, in 2008, the DOT relocated STH 26 so that it intersected with STH 19 just to the west of Hoffer’s property. The relocation meant Hoffer’s direct access to STH 19 was eliminated. Also, as part of the project, DOT took 0.72 acres and a temporary limited easement from Hoffer through eminent domain. Hoffer was given $90,000 for the taking and he was given alternate access through an adjacent parcel. After DOT's jurisdictional offer and award of damages, Hoffer appealed the amount of compensation. (See "What is a Jurisdictional Offer?")
The focus of the dispute was the alternate access. Hoffer’s argument was that when an abutting property owner’s direct access to an existing controlled-access state trunk highway is eliminated, the property owner must be compensated by the DOT when a jury finds that the replacement access is not reasonable. DOT responded that Hoffer could only raise that reasonableness argument through inverse condemnation. There, Hoffer would have to show that the alternate access was so circuitous that he lost all or substantially all beneficial use of the land, resulting in a “regulatory taking.”
The circuit court, however, concluded that if the DOT provides replacement access to the property, no compensation is required, and it denied Hoffer a jury. Hoffer then appealed and the Court of Appeals upheld the circuit court’s decision. Likewise, the Supreme Court affirmed this decision with a concurrence by Justice Abrahamson in which Justice Bradley joined. The lead opinion explained, “when DOT changes an abutting property owner’s [direct] access to a controlled-access highway but other access is given or exists, the abutting property owner is precluded from compensation...as a matter of law and no jury determination of reasonableness is required.”
However, Justice Prosser’s dissent is worth further examination. The dissent expresses concern that by precluding juries from ever finding the alternative access unreasonable, property owners are deprived of their statutory right to a jury trial and circuit court judges are also prevented from finding that alternative access is not reasonable. The issue is “whether no compensation is required if DOT provides any alternative access—even if that alternative access is plainly unreasonable—so long as the property owner cannot meet the requirements for inverse condemnation.” While Justice Prosser does not write that the replacement access in this case is unreasonable, he takes issue with the interpretation which would not allow a jury to hear the evidence and make a judgment.
In support, Justice Prosser cites several cases that rule whether or not compensation must be made. The interlacing thought in these cases is that each makes reference to the reasonableness of the alternate access to a controlled-access highway. Although in general, if a property owner’s loss of direct access is replaced with some reasonable access they will not be compensated, Justice Prosser asserts that “the broad scope of reasonableness does not preclude a finding of unreasonableness in specific circumstances.”
Because reasonableness is a matter of degree, this determination should be decided by a jury, which as Justice Prosser points out, is “a vital check by an impartial fact finder on the exercise of government power.” A huge gap exists between reasonable access and access so deficient that is constitutes inverse condemnation. Thus, the dissent concludes the lead opinion permits “government officials to push property owners into that chasm without compensation.”