Partial Obstruction of Billboard Does Not Constitute a Taking
The construction of new buildings, bridges, overpasses and other structures can impact the visibility of billboards along a roadway. When an obstruction of a billboard results from a public improvement, does the billboard company have a protected property interest that requires compensation from the government? The Wisconsin Court of Appeals recently addressed this issue and held that a partial obstruction of a billboard caused by a new pedestrian overpass did not result in an unconstitutional taking of property rights. Adams Outdoor Advertising Limited Partnership v. City of Madison, 2016 AP 537.
The dispute in Adams arose when the City of Madison constructed a new pedestrian overpass above the Beltline Highway in 2013. Adams owned property adjacent to the bridge and maintained a two-sided billboard on the property for nearly two decades. The new overpass obstructed the west-facing side of the billboard from the view of eastbound traffic on the Beltline. However, the east facing side of the billboard was unobstructed by the new overpass. The City refused to allow Adams to change or alter its billboard to mitigate the obstruction caused by the overpass.
After the City refused its request to move the billboard, Adams sued the City for inverse condemnation claiming that the obstruction resulted in an unconstitutional taking of private property. There was little dispute that the west-facing side of the billboard lost its economic value due to the obstruction but the City argued that no taking occurred because one side of the billboard remained visible. The City further asserted that the takings analysis focuses on the nature of the interference with rights in the parcel as a whole as opposed to segments of the property. Thus, Adams was not deprived of all beneficial uses of the whole property (i.e. the billboard) and could not maintain an inverse condemnation claim. The trial court and the Court of Appeals were swayed by this argument and dismissed Adams’ lawsuit.
While some may view this as a harsh result, the Court of Appeals decision is consistent with longstanding law that an unconstitutional taking only occurs when the property owner is deprived of the beneficial use of the entire property. The case would likely have turned out differently for Adams if the overpass resulted in a total obstruction of the billboard. In that scenario, Adams would have a strong case that the overpass deprived it of any economic value in the billboard as a whole.