No Compensation for Loss of Direct Access to a Controlled-Access Highway
The Wisconsin Court of Appeals recently held in an unpublished opinion that a property owner was not entitled to compensation when the Department of Transportation (“DOT”) removed its direct access to a controlled-access highway and replaced it with an alternate access.
Hoffer Properties, LLC (“Hoffer”), owned property that abutted State Highway 19. The property had direct driveway access to this controlled-access highway. A controlled-access highway is a highway designed for high-speed traffic with all traffic flow and entrance and departure points regulated by the DOT. Projects involving these types of highways are governed by Wis. Stat. § 84.25.
The DOT condemned 0.72 acres of Hoffer’s property for a state highway project. By taking this portion of the Hoffer property, the DOT removed the property’s direct access to State Highway 19. The DOT replaced Hoffer’s access with an alternate access to the highway by extending an existing public road, Frohling Lane, to connect the Hoffer property to the highway. The DOT did not compensate Hoffer for removing its direct access.
Hoffer appealed to the circuit court and argued it should have been compensated for the loss of access. The DOT argued the alternate access provided to Hoffer was reasonable and that Hoffer was not entitled to compensation. The circuit court agreed with the DOT, and Hoffer appealed the court’s decision.
On appeal, Hoffer argued that, whenever the DOT eliminates a property’s direct access to a highway, the DOT must pay reasonable compensation to the property owner if a jury determines the replacement access is not reasonable. Hoffer relied on National Auto Truckstops. v. DOT, 2003 WI 95, 263 Wis. 2d 649, 664 N.W.2d 198, to support its position that compensation should be available for Hoffer’s loss of direct access to State Highway 19. The DOT, on the other hand, argued it provided reasonable alternate access for Hoffer and the change in access was not compensable as a matter of law under Surety Savings & Loan Ass’n v. State, 54 Wis. 2d 438, 195 N.W.2d 464 (1972).
The Court of Appeals agreed with the DOT and rejected Hoffer’s reliance on National Auto Truckstops because that case did not involve a controlled-access highway. The Court held that, since the DOT provided another access to the Hoffer property, “there is no compensable taking when direct access to a controlled-access highway is denied, where other access is given or otherwise exists.” Id. at 443.
In a loss of access case involving a controlled-access highway, the court does not consider whether the alternate access provided by the DOT is reasonable. Rather, the court only considers whether the DOT provided an alternate access to the controlled-access highway. The right of access “involves only the right to enter and leave the property without being forced to trespass across the land of another” and does not include any right to have access “at any particular point on the boundary lines of the property.” Id. at 444. Thus, the Court of Appeals held there was no compensable taking, since the DOT provided Hoffer with alternate access to State Highway 19.
The court’s decision is limited to properties abutting controlled-access highways. Loss of access to other types of highways is governed by different standards not discussed here. Business owners that have property abutting these controlled-access highways should be aware of alternate access issues if faced with a DOT highway project that may remove its direct access.
If you have questions about this blog post, please contact Attorney Streck at sstreck@axley.com or 608.283.6723.
