Recently, the Wisconsin Court of Appeals took up the issue of driveway permits in Chan Lee v. DOT, No. 2014AP2304, unpublished slip op. (Wis. Ct. App. Aug. 26, 2015) (per curiam). The case involved the Department of Transportation (DOT) and a landowner’s driveway along USH 18 in Waukesha. The landowner, Mr. Lee, operates a martial arts academy along East Moreland Boulevard and USH 18 in Waukesha. The property had one driveway onto USH 18 and two onto Paramount drive to the south. The DOT sought to remove Lee’s driveway onto USH 18 as part of a reconstruction project between USH 18 and I-94. The agency attempted to do so under its authority to grant and revoke driveway permits onto state highways.
But there were two problems for DOT: First, in 1983, Lee’s predecessor got a quitclaim deed from DOT. The quitclaim granted Lee’s predecessor, “[t]he right to one private driveway...[on] USH 18...” in trade for two other driveways. Thus, it would seem like Lee had a compensable right to the USH 18 driveway. Second, DOT was unable to locate any permits for the driveway – there was nothing to revoke.
Even so, DOT took the position that it could revoke the driveway. Lee received a notice, which read, “Every driveway on the state highway system is there by permit whether or not the paperwork can be located. This letter is formal notice of the revocation of your driveway permit.”
Lee challenged DOT – first, through the Division of Hearings and Appeals and then in circuit court. The circuit court sided with Lee, noting that the driveway granted in the quitclaim was a “valid property right.” Accordingly, the DOT would be required to pay just compensation if it wanted to close the driveway.
The DOT appealed. The agency argued that Lee’s quitclaim deed only gave Lee a temporary driveway connection subject to DOT’s permitting authority. But, the Court of Appeals disagreed. The quitclaim, explained the court, had the effect of granting Lee’s predecessor “whatever ownership rights the [DOT] possessed in the driveway connection in 1983.” The court also noted that the deed’s wording further suggested that DOT intended to convey a driveway right to Lee’s predecessor. Thus, the appellate court affirmed the judgment below.
Now, DOT will have to commence eminent domain proceedings and pay just compensation to reacquire Mr. Lee’s driveway.
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