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James & Judith Nonn Trust v. Wisconsin Department of Transportation

Court of Appeals of Wisconsin, District IV

May 9, 2019

James & Judith Nonn Trust, James Nonn and Judith Nonn, Plaintiffs-Appellants,
Wisconsin Department of Transportation, Defendant-Respondent.

          APPEAL from a judgment of the circuit court for Dane County: No. 2014CV2941 JUAN B. COLAS, Judge.

          Before Lundsten, P.J., Blanchard and Fitzpatrick, JJ.

          LUNDSTEN, P.J.

         ¶1 The appellants (collectively, the Nonns) own and operate a business that was affected by a highway construction project. They seek compensation under Wis.Stat. § 32.09(6)[1] for what they allege is a reduction in the value of their property caused by the installation of a traffic-blocking highway median that reduced access to their property from an adjacent highway. The Nonns argue that, because a single highway project included both a "partial taking" of their property for a sidewalk within the meaning of § 32.09(6) and the traffic-blocking median, the alleged reduction in value caused by the median is compensable even though the partial taking of property for the sidewalk did not cause the loss of access. This means, according to the Nonns, that the circuit court erred by granting DOT's pretrial motion to exclude evidence of damages caused by the traffic-blocking median.

         ¶2 We agree with the circuit court that 118th Street Kenosha, LLC v. DOT, 2014 WI 125, 359 Wis.2d 30, 856 N.W.2d 486, requires that we reject the Nonns' argument. Like the 118th Street court, we do not hold that access damages of the sort the Nonns seek are not compensable under any theory, but only that the access damages are not compensable under Wis.Stat. § 32.09(6), the authority the Nonns rely on. See 118th Street, 359 Wis.2d 30, ¶¶33, 58. Accordingly, we affirm the circuit court.


         ¶3 The Nonns operate a restaurant on property they own at the intersection of U.S. Highway 14 and County Highway P in the Village of Cross Plains. In 2014, DOT commenced a highway improvement project affecting this intersection and the Nonns' property. As a part of that project, on September 11, 2014, DOT acquired 158 square feet of the Nonns' property for the purpose of a "pedestrian accommodation," which we understand to be a sidewalk.

         ¶4 The project also included installing a traffic-blocking median on Highway 14. The median prevented restaurant customers from making left-hand turns from Highway 14 into the parking lot and also prevented customers from turning left out of the restaurant parking lot to head westbound on Highway 14. As to Highway 14 westbound vehicles, there was, and remained, access to the restaurant parking lot via another road adjacent to the property, County Highway P. We assume for purposes of this opinion that this reduced access negatively affects the value of the property.

         ¶5 It is undisputed that the award for the partial taking of the Nonns' property for a sidewalk did not include compensation for any reduction in the value of the property caused by the traffic-blocking median. The Nonns appealed the amount of the award to the circuit court pursuant to Wis.Stat. § 32.05(11).

         ¶6 Prior to a scheduled trial, DOT filed a motion in limine seeking to exclude evidence of damages relating to Highway 14 access. DOT argued that the Highway 14 access evidence is not admissible because, under the circumstances here, the evidence does not relate to damages that are compensable under Wis.Stat. § 32.09. The circuit court agreed with DOT and excluded evidence of Highway 14 "access or access related damages." The court later denied the Nonns' motion for reconsideration relating to the access damages evidence and, pursuant to a stipulation, entered a final judgment. The Nonns appeal.

         Statutory Subsections Involved

         ¶7 Although much of the language in Wis.Stat. § 32.09(6) and (6g) does not matter for purposes of the pertinent holding in 118th Street or our application of that holding to the facts here, we provide the full text of those subsections for easy reference. Section 32.09(6) and (6g) provides:

32.09 Rules governing determination of just compensation. In all matters involving the determination of just compensation in eminent domain proceedings, the following rules shall be followed:
(6) In the case of a partial taking of property other than an easement, the compensation to be paid by the condemnor shall be the greater of either the fair market value of the property taken as of the date of evaluation or the sum determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement and giving effect, without allowance of offset for general benefits, and without restriction because of enumeration but without duplication, to the following items of loss or damage to the property where shown to exist:
(a) Loss of land including improvements and fixtures actually taken.
(b) Deprivation or restriction of existing right of access to highway from abutting land, provided that nothing herein shall operate to restrict the power of the state or any of its subdivisions or any municipality to deprive or restrict such access without ...

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