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Adams Outdoor Advertising Limited Partnership v. City of Madison

Supreme Court of Wisconsin

June 19, 2018

Adams Outdoor Advertising Limited Partnership, Plaintiff-Appellant-Petitioner,
v.
City of Madison, Defendant-Respondent.

          Submitted on Briefs: Oral Argument: March 14, 2018

         REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 377 Wis.2d 728, 902 N.W.2d 808

          Dane County Circuit Court (L.C. No. 2014CV2497) Richard G. Niess Judge

          For the plaintiff-appellant-petitioner, there were briefs filed by Eric M. McLeod, Jeffrey L. Vercauteren, Joseph S. Diedrich, and Husch Blackwell LLP, Madison. There was an oral argument by Eric M. McLeod.

          For the defendant-respondent, there was a brief filed by Amanda J. Kaiser, Evan B. Tenebruso, and Boardman & Clark LLP, Madison. There was an oral argument by Evan B. Tenebruso.

          An amicus curiae brief was filed on behalf of the Outdoor Advertising Association of Wisconsin by Thomas S. Hornig, Kraig A. Byron, and von Briesen & Roper, S.C., Madison.

          An amicus curiae brief was filed on behalf of League of Wisconsin Municipalities by Daniel M. Olson and League of Wisconsin Municipalities, Madison.

          ANN WALSH BRADLEY, J.

         ¶1 The petitioner, Adams Outdoor Advertising Limited Partnership, seeks review of an unpublished per curiam decision of the court of appeals affirming the circuit court's grant of summary judgment dismissing Adams' takings claim against the City of Madison.[1] The court of appeals concluded that Adams failed to show that the City took any property requiring just compensation. Specifically, it determined that Adams failed to demonstrate a cognizable right that underlies its asserted protected property interest.

         ¶2 Both parties agree that the City did not physically take any of Adams' property. They likewise agree that the City did not enact any zoning regulation restricting the use of previously acquired property interests. Instead, Adams asserts that its property was taken when the City constructed a pedestrian bridge over the Beltline Highway that blocked the visibility from the highway of the west-facing side of Adams' billboard.

         ¶3 According to Adams, the City took its property interest in its "vested rights in the legal nonconforming use" of its billboard. It alleges that a taking occurred because the City deprived it of all economically beneficial use of the west-facing side of its billboard, and therefore Adams is entitled to just compensation.

         ¶4 The City disagrees, arguing that Adams has failed to identify a recognized right sufficient to support its taking claim. Specifically, the City contends that property owners have no right to continued and unobstructed visibility of their property from a public road.

         ¶5 Like the court of appeals, we determine that a right to visibility of private property from a public road is not a cognizable right giving rise to a protected property interest. Because Adams' claim, in essence, rests on asserting this unrecognized right, its takings claim must fail. See Wis. Med. Soc'y, Inc. v. Morgan, 2010 WI 94, ¶38, 328 Wis.2d 469, 787 N.W.2d 22');">787 N.W.2d 22. ¶6 Accordingly, we affirm the decision of the court of appeals.

         I

         ¶7 The billboard at issue in this case is located near the Beltline Highway in Madison on a single, irregularly shaped parcel of land, less than one-half of an acre in size. It is a single pole sign structure with two opposite-facing panels that was built in approximately 1995. One panel faces east and the other west, allowing for separate and distinct advertising messages.

         ¶8 Adams bought the irregularly shaped parcel of land containing the billboard for $200, 000 in 2007. No other building or structure is located on Adams' land. Adams has not made any substantial improvements to its billboard since it purchased the parcel. Pursuant to Madison City Ordinance § 31.11(1), the billboard is nonconforming.[2] As such, the billboard is permitted to remain, but Adams cannot modify its height or location.

         ¶9 In 2013, pursuant to an agreement with the Wisconsin Department of Transportation, the City built the Cannonball Bridge (the bridge), a pedestrian and bicycle overpass crossing the Beltline Highway. The bridge is located adjacent to, but not on, Adams' property.

         ¶10 The bridge obstructs the view of the west-facing side of the billboard from Beltline traffic.[3] Adams asserts that since the construction of the bridge, it has not been able to sell advertising space on the west-facing panel of its billboard. The view from the east-facing side of the billboard remains unobstructed, and Adams continues to sell advertising space on the east-facing panel.

         ¶11 Adams' appraiser determined that before the construction of the bridge, the estimated value of Adams' property was $1, 460, 000. After the bridge was erected, it asserts that the value of Adams' property declined to $720, 000.[4]

         ¶12 Adams filed a complaint alleging in relevant part[5] that it has "constitutional protected property rights in [its] [p]roperty and [s]ign, " and that the City has "occupied [its] [p]roperty and fully obstructed the west-facing [s]ign . . . ." It asserts that the City's construction of the bridge deprived Adams of substantially all beneficial uses of its property and sign. Therefore, according to Adams, it is entitled to initiate an inverse condemnation action pursuant to Wis.Stat. § 32.10 (2013-14)[6] because the City took its property and sign without compensation.

         ¶13 The City moved for summary judgment, arguing that Adams' takings claims must fail because it does not identify a recognized property right taken by the City. Specifically, the City contends that there is no property right to continued visibility of a billboard. Further, the City argues that Adams cannot prove that the City took its property because there was neither an actual physical occupation of Adams' property by the City, nor did the City deprive Adams of all or substantially all of the beneficial uses of its property.

         ¶14 The circuit court granted the City's summary judgment motion. Relying on Randall v. City of Milwaukee, 212 Wis. 374, 249 N.W. 73 (1933), it concluded that "there is no property right at issue that has been taken by the placement of this bridge over the highway in close proximity but not on the property belonging to the plaintiff" because "[t]here's no property right to be seen."

         ¶15 It further explained that "[w]hat we have instead is a consequential or incidental result of the construction and maintenance [of the bridge] . . . which is . . . not a protectable interest that is if invaded subject to compensation for a taking." Finally, the circuit court determined that Zealy v. City of Waukesha, 201 Wis.2d 365, 548 N.W.2d 528');">548 N.W.2d 528 (1996), requires that courts "value the billboard as a whole and not one side versus the other. And as a whole, it cannot be said that all or substantially all of the beneficial use of this property has been obstructed."

         ¶16 The court of appeals affirmed in an unpublished per curiam opinion. Like the circuit court, the court of appeals relied on Randall, 212 Wis. 374, to reach its conclusion that obstruction of a view is not a taking of private property. Adams Outdoor Advert. Ltd. P'ship v. City of Madison, No. 2016AP537, unpublished slip op., ¶¶8-10 (Wis. Ct. App. July 20, 2017) .

         ¶17 Adams petitioned this court for review.

         II

         ¶18 In this case we are asked to review the court of appeals' decision affirming the circuit court's grant of summary judgment in favor of the City, dismissing Adams' takings claims against the City.

         ¶19 This court reviews a decision granting summary judgment independently, applying the same methodology as does the circuit court. Shugarts v. Mohr, 2018 WI 27, ¶17, 380 Wis.2d 512, 909 N.W.2d 402. "Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Id.

         III

         ¶20 The United States and Wisconsin Constitutions require payment of just compensation for private property taken for public use. The Fifth Amendment to the United States Constitution provides in relevant part: "nor shall private property be taken for public use, without just compensation." U.S. Const, amend. V. Article I, Section 13 of the Wisconsin Constitution provides: "The property of no person shall be taken for public use without just compensation therefor." Wis. Const, art. I, § 13.[7]

         ¶21 In order to maintain an unconstitutional takings claim, four factors must be demonstrated: (1) a property interest exists; (2) the property interest has been taken; (3) the taking was for public use; and (4) the taking was without just compensation. Wis. Med. Soc'y, 328 Wis.2d 469, ¶38 (citing Wis. Retired Teachers Ass'n v. Emp. Tr. Funds Bd., 207 Wis.2d 1, 18-24, 558 N.W.2d 83 (1997)).

         ¶22 It is undisputed that the alleged taking here was for public use and the City did not compensate Adams for any damages sustained due to the construction of the bridge. Accordingly, the two disputed inquiries before this court are (1) whether a property interest exists and, if so, (2) whether that property interest has been taken. Wis. Med. Soc'y, 328 Wis.2d 469, ¶38.

         A

         ¶23 We must first identify the precise property interest at issue. Once identified, we examine next whether that property interest exists, that is, whether it is based on a right recognized under our takings jurisprudence.

         ¶24 Adams asks this court to characterize the property interest at stake as the preexisting right to the legal nonconforming use of its property. The City contends that the property interest in question is grounded on the right to continued "visibility of private property from a public road."[8]

         ¶25 Adams disagrees with the City's characterization of its property interest as relying on a "right to be seen." Before this court Adams asserts that "this case is not about a freestanding right to be seen" and that "[t]he outcome of this case does not depend on whether any generalized right to be seen exists."

         ¶26 In contrast, before the circuit court, Adams repeatedly emphasized the import of the right to be viewed when describing the property interest at issue:

What is the protected interest? It's the legal nonconforming use, the vested rights that we have in maintenance of that use. And what is the use? It's the display of advertising signs that can be viewed by the public.

         Adams further explained to the circuit court that "[t]he nature of this use is to be viewed. If there's no right to be viewed, then it is illusory that the rights, the pre-existing use that we've got is illusory. If it can't be viewed, we have no value. In this context it has to be a protected property right."

         ¶27 At oral arguments before this court, counsel for Adams stated that "[t]he issue that has been presented in this case is whether Adams has the right to continue a preexisting use of its property, the sole purpose of which is to display advertising and be seen." Counsel for Adams explained further that:

In this case the use that we are seeking to protect is the [] display of the billboard which is to be seen. I am not trying to suggest that our ability to be seen is not a critical piece of this but it is a critical piece of it by virtue of the specific use here, not because we are seeking to establish a right to be seen.

         Thus, on one hand Adams disclaims that it is relying on a right to visibility of its billboard from a public road. On the other hand, Adams consistently refers to the "critical" fact that this case would not be before this court but for the fact that the sole harm it has suffered is to the visibility of its private property from a public road.

         ¶28 We decline to characterize the property interest here in the overly broad and generalized fashion advocated by Adams. Such an expansive framing begs the question: what is the essence of the property interest in dispute?

         ¶29 Adams' billboard continues to enjoy its legal nonconforming status. It is undisputed that the City neither physically altered Adams' property in any way, nor did it enact any regulation restricting the use of Adams' property. Thus, we determine that the essence of Adams' asserted property interest is based on a right to visibility. But for the reduction in visibility of Adams' billboard from a public road, there would be no asserted takings claim. B

         ¶30 Having determined that the property interest asserted here is based upon a right of visibility of private property from a public road, we turn next to address whether it is a recognized property right under our takings jurisprudence. See Wis. Med. Soc'y, 328 Wis.2d 469, ¶38; Luber v. Milwaukee Cty., 47 Wis.2d 271, 278, 177 N.W.2d 380 (1970) (explaining that to determine whether there has been a taking, "a court of necessity must define ...


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