Do You Have the Right to Get Onto a State Highway?

December 3, 2013

A recent Court of Appeals decision, 118th Street Kenosha, LLC v. Wisconsin Department of Transportation, reversed the decision of the Circuit Court.

In this case, 118th Street Kenosha, LLC owns a four-store shopping center near State Trunk Highway 50 and Interstate 94 in the city of Kenosha. Prior to the DOT highway reconstruction project at that location, this commercial property had one driveway and entrance to the shopping center from a public road, 118th Avenue, and one driveway entrance from a private road that intersected with 118th Avenue. Consistent with DOT’s reconstruction plans – upon completion of the project – the property continues to have two driveway entrances, both from the private road: the original road, and the newly constructed double-throated one. The entrance from 118th Avenue was eliminated due to the DOT rerouting 118th Avenue and vacating the stretch of street that previously allowed for entry from the property directly from 118th Avenue.

DOT engineers are trying to eliminate as many access points as possible because of safety concerns. There are specific distances between entry points to highways in order to provide the safest road possible.  Nonetheless, a completely safe road would be inaccessible.

118th Street Kenosha contended that the Circuit Court erred in prohibiting it from presenting evidence of the impact the loss of access and proximity to 118th Avenue had on the fair market value as commercial property. The DOT countered that the Court correctly precluded such evidence because the taking of the temporary easement to create the new private road entrance was a “separate and distinct act” from the closing and rerouting of the relevant stretch of 118th Avenue and did not result in the property’s loss of direct access to 118th Avenue.

The DOT argument, according to the Court of Appeals, completely ignored reality. This case was remanded back to the Circuit Court.

Wisconsin Stat. § 32.09 (6)(g) instructs the appropriate amount of compensation is determined by deducting from the fair market value of the whole property immediately after the date of evaluation from the fair market value immediately before that date, “assuming the completion of the public improvement.” Because of the integral connection between the taking of the property easement to create a new entrance and the elimination of the relevant stretch of 118th Avenue and the entrance to the property from the street, there appears to be a diminution of value.  Thus, on remand, the Circuit Court will have to determine the property’s fair market value before and after the taking of the easement, including the loss of direct access and proximity resulting from the vacating and rerouting of 118th Avenue.

While this is a specific situation, it is important for the DOT to be cautious when it starts cutting off access for commercial properties.

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For more information about "Do You Have the Right to Get Onto a State Highway?," contact Buck V. Sweeney at csweeney@axley.com or 608.283.6743.