Adams Outdoor Advertising Limited Partnership, Plaintiff-Appellant-Petitioner,
City of Madison, Defendant-Respondent.
Submitted on Briefs: Oral Argument: March 14, 2018
OF DECISION OF THE COURT OF APPEALS Reported at 377 Wis.2d
728, 902 N.W.2d 808
County Circuit Court (L.C. No. 2014CV2497) Richard G. Niess
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.
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.
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.
amicus curiae brief was filed on behalf of League of
Wisconsin Municipalities by Daniel M. Olson and League of
Wisconsin Municipalities, Madison.
WALSH BRADLEY, J.
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Partnership, seeks review of an unpublished per curiam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. 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
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
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.
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.
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.
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
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. As such, the billboard is permitted to
remain, but Adams cannot modify its height or location.
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.
The bridge obstructs the view of the west-facing side of the
billboard from Beltline traffic. 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.
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,
Adams filed a complaint alleging in relevant
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) because the City took its property and
sign without compensation.
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
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
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
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) .
Adams petitioned this court for review.
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.
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.
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.
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
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.
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.
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
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."
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
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."
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
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.
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.
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?
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.
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