In a recent per curiam opinion, the Wisconsin Court of Appeals discussed what grounds the Department of Transportation can give to close a business’s driveway and the route landowners may be left with. Slater v. DOT, No. 2015AP1628, unpublished slip op. (Wis. Ct. App. July 27, 2016) (per curiam).
The plaintiffs owned a commercial property, which was used as an architect’s office, along U.S. Highway 18 in Waukesha. Until the it was revoked, the landowners had a permitted driveway directly onto USH 18 near the intersection with Springdale Road. But, in 2012, DOT notified the landowners that the permit was being revoked and the driveway would be removed. This case stems from the landowners’ challenge to that revocation.
There’s a complicated procedural history to the case, which you can read about in the opinion. We won’t re-hash it. The important thing is that the court of appeals reviewed the decision of the Division of Hearings and Appeals (DHA) for sufficient evidence to support it. In doing so, the court would not re-weigh the evidence.
Specifically, the court of appeals reiterated that it would look to determine whether there had been “substantial evidence” for DHA to conclude (1) DOT’s decision to revoke the driveway permit was based upon documented safety concerns and (2) that the landowners would have reasonable alternative access to USH 18 afterward.
On the safety issue, the court of appeals concluded that there was substantial evidence of safety concerns to revoke the landowners’ driveway permit. In the opinion, the court of appeals pointed to the conclusions from a 2008 Access Management Plan, 2008 Safety Assessment, a 2009 Traffic Study, as well as testimony from the traffic engineer who prepared the Safety Assessment. The 2009 study, noted the court, found that access from the Slater property to be dangerous: USH 18 had a high crash rate due to numerous access points, high speeds, and numerous lanes. Also before the DHA was the Access Management Plan, which suggested eliminating several driveways, including the Slaters’, along USH 18 to address the safety issues. From these sources, the court of appeals concluded that DHA had sufficient evidence to support DOT’s decision to revoke the driveway permit.
Next, the court of appeals turned to the issue of alternative access. Again, the court noted the DHA had determined that the landowners’ remaining access was reasonable. The evidence showed that, at a minimum, the landowners had a pre-existing easement over a neighboring retail property that led to a connecting street to USH 18. The extra distance amounted to 200 feet. According to the court, this was sufficient for the DHA to find the remaining access was reasonable. The court explained that reasonable alternative access only meant that the landowners would not be required to trespass over another’s property to reach their own. Likewise, the court concluded that the additional distance did not defeat DHA’s determination that the remaining access was reasonable.
Intriguingly, the landowners argued that being forced to use a non-exclusive access easement could not meet the requirement of reasonable alternative access. However, the court of appeals refused to take the argument any farther and refused to consider the argument outright, noting that the landowners had provided no authority in support.
Having upheld DHA’s ruling on the two major driveway issues, the court turned to the landowners’ remaining arguments. The landowners also argued that DOT’s notice faulty for failing to alert neighboring properties of the revocation. The court deemed this argument waived. And, the court suggested, even had it not been waived the argument was a non-starter. Referring to a 2013 decision, the court explained that only “the holders of the driveway permit being revoked” were entitled to notice. Slater, ¶ 9 (citing J&E Invs. LLC v. Division of Hearings & Appeals, 2013 WI App 90, ¶¶ 4, 18, 349 Wis. 2d 497, 835 N.W.2d 271). The plaintiffs made one more argument: that DOT couldn’t abandon the eminent domain proceedings to terminate their driveway permit. But this argument was rejected, as well. The court considered this argument to be outside the scope of this driveway permit revocation appeal. With that, the court of appeals affirmed the decision of the DHA, below.
In doing so, it determined that there was substantial evidence that DOT’s decision to revoke the permit was based upon documented safety concerns and that the landowners would have reasonable alternative access to USH 18 afterward.
As a per curiam opinion, Slater is unlikely to be used again. However, the case touched on some concerns regarding the alternate access that remained. For example, what does it mean for landowners, businesses, or property purchasers that work out their own access agreements with their neighbors? And, how might restrictions they include in those side agreements affect a determination of whether reasonable access remains after direct access is revoked? If unanswered, businesses, landowners, and buyers with multiple access points on developed roads could face uncertainty.
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