James & Judith Nonn Trust, James Nonn and Judith Nonn, Plaintiffs-Appellants,
Wisconsin Department of Transportation, Defendant-Respondent.
from a judgment of the circuit court for Dane County: No.
2014CV2941 JUAN B. COLAS, Judge.
Lundsten, P.J., Blanchard and Fitzpatrick, JJ.
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) 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.
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.
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.
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.
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).
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.
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)
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
(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 ...