Loss in Value Caused by Police Power Not Recoverable

Compensation for police power acts is a hot issue in Wisconsin. The Wisconsin court of appeals recently affirmed an order excluding evidence of a significant loss in property value caused by a relocated access point. See North Mayfair, LLC v. Department of Transportation, No. 17AP256 (Wis. Ct. App. Feb. 13, 2018) (not recommended for publication).

Depending on which expert you believe, the relocation of the access point caused the property to lose between $1 million and $2.5 million in value. The DOT moved to bar that evidence from being presented to the jury on grounds that the damages were not compensable under Wis. Stat. § 32.09(6)(b). The trial court granted the motion, and the court of appeals affirmed.

The court found that the loss in value was caused by the relocation of a road – a separate police power act and a separate DOT project – and not from a contemporaneous taking of a portion of the property for a road-widening project. Interestingly, while both projects were part of the larger $1.7 billion Zoo Interchange Project, the court nonetheless found them to be separate. The court noted that the road relocation occurred on the other side of the property from the taking and that no land was taken for the relocation.

Although the decision is unpublished, it is a three-judge decision and can be cited for persuasive value. North Mayfair has until March 13, 2018, to seek Wisconsin Supreme Court review. Stay tuned.