Wisconsin Court of Appeals Says No Taking, Even if Your Business Closes

February 1, 2019

The Wisconsin Court of Appeals decided an inverse condemnation case,  Aamaans Properties, Inc. v. Wisconsin Department of Transportation,1 on December 26, 2018. Aamaans Properties, Inc. (Aamaans) owned a property on State Trunk Highway 26 with a gas station and a McDonald’s. WisDOT relocated the highway, resulting in circuitous and inconvenient access to the property. The McDonald’s closed, and Aamaans lost the property in foreclosure. Aamaans sued WisDOT for inverse condemnation, claiming that the highway relocation was a taking requiring compensation. The circuit court ruled in favor of WisDOT.

On appeal, the court of appeals affirmed. The court noted that a compensable taking can occur without a physical invasion of the property, but only if: 1) there is a legally imposed restriction upon the property’s use; and 2) the taking denies the owner of all or substantially all practical uses of the property. According to the court, a legally imposed restriction means an actual regulation on the property, not just an indirect government action. Aamaans failed to meet either of these standards.

The case is an unpublished, per curiam decision, so it is not binding on Wisconsin trial courts. But based on Aamaans Properties, Inc., a highway relocation is not compensable even if the relocation causes a business to close. The case also creates questions about whether a change of access caused by indirect government action (as opposed to a regulation) is ever a compensable taking. Aamaans has filed a petition for review with the Wisconsin Supreme Court. We’ll have to see if they take the case.


1 Aamaans Props., Inc. v. Wis. DOT, No. 2017AP1220, 2018 Wisc. App. LEXIS 939 (Ct. App. Dec. 26, 2018) (unpublished) (per curiam).