Adams Outdoor Advertising Limited Partnership v. City of Madison
Adams Outdoor Advertising Limited Partnership v. City of Madison
Opinion of the Court
*662*380¶ 1 The petitioner, Adams Outdoor Advertising Limited Partnership, seeks review of an unpublished per curiam decision of the court of appeals affirming the circuit court's grant of summary judgment dismissing Adams' takings claim against the City of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.
¶ 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 *381occurred 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,
¶ 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.
*382Pursuant to Madison City Ordinance § 31.11(1), the billboard is nonconforming.
*663¶ 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.
¶ 11 Adams' appraiser determined that before the construction of the bridge, the estimated value of *383Adams' property was $1,460,000. After the bridge was erected, it asserts that the value of Adams' property declined to $720,000.
¶ 12 Adams filed a complaint alleging in relevant part
*384¶ 13 The City moved for summary judgment, arguing that Adams' takings claims *664must 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,
¶ 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,
¶ 16 The court of appeals affirmed in an unpublished per curiam opinion. Like the circuit court, the court of appeals relied on Randall,
¶ 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,
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 *386use, 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.
¶ 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 *665taken; (3) the taking was for public use; and (4) the taking was without just compensation. Wis. Med. Soc'y,
¶ 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,
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.
*387¶ 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."
*666*388¶ 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:
*389What 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?
*390¶ 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 *667Wis. Med. Soc'y,
¶ 31 The City asserts-and we agree-that Randall,
¶ 32 In Randall, the City of Milwaukee proposed to construct an underground pedestrian tunnel *391and a shelter covering the entrance to the tunnel that would abut Randall's property. Id. at 376-77,
¶ 33 The Randall court disagreed, explaining that a property owner's rights "as an abutting owner are subject to such public street use and purpose as the location of the street requires." Id. at 378,
[A]cts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the state or its agents, or give him any right of action. This is supported by an immense weight of authority. That has been the rule in this state.
¶ 34 Randall reasoned that public thoroughfares, including highways, are dynamic spaces that must change and adapt over time. Id. at 378,
Lands are set aside for public streets and highways, not for the present, with its necessities and modes of *392use, but for all time, with all the added demands that may be made upon the public ways within the scope of their original design, in the course of natural development that is constantly going on.
¶ 35 Adams counters that Randall's conclusion that there is no recognized right to be seen from the street is limited to cases that deal with prospective, undeveloped uses of property where no vested rights were taken and nonconforming use status was not at issue. We disagree. Neither Randall, nor various cases citing Randall, contain such limiting language. See, e.g., Howell Plaza, Inc. v. State Highway Comm'n,
¶ 36 Furthermore, it is well-established that "there is no property right to *668the flow of traffic along a highway." Surety Sav. & Loan Ass'n v. State Dep't of Transp. Div. of Highways,
¶ 37 Given that a private property owner does not have a right to the continued flow of traffic from a public road, it reasonably follows that it does not have a property interest in the continued visibility of its property from that road. See, e.g., Troiano v. Colo. Dep't of Highways,
¶ 38 In sum, private property owners abutting public roads are aware that public roads are subject to change. See Randall,
¶ 39 Property owners are on notice that such changes may alter or obstruct the view of their private property from the public road. Id. at 379-81,
¶ 40 Numerous jurisdictions also have concluded that the right to visibility from a public road is not a recognized property right.
¶ 41 For example, the California Supreme Court rejected a takings claim by a billboard owner who asserted that palm trees that did not physically occupy any land owned by the billboard company reduced the visibility of its billboards, constituting a taking. Regency Outdoor Advert., Inc. v. City of Los Angeles,
¶ 42 As here, the Regency court was assessing a takings claim in the context of a preexisting use of a billboard, where the sole harm alleged was that of loss of visibility from a public road.
¶ 43 Adams attempts to distinguish Regency by asserting that the billboards in Regency were not "nonconforming." Yet, Adams cites no authority for its proposition that owners of legal nonconforming property should be provided broader protection than legally conforming property owners. As a policy matter, such an argument is unpersuasive.
¶ 44 Likewise, we do not find persuasive Adams' argument that the particular use of its land as containing solely a billboard gives rise to a right of visibility justifying special consideration under our taking law.
¶ 46 In sum, we conclude 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 we determine that Adams failed to establish that a property interest exists here, we need not address whether a property interest was taken. See Wis. Med. Soc'y,
By the Court. -The decision of the court of appeals is affirmed.
Adams Outdoor Advert. Ltd. P'ship v. City of Madison, No. 2016AP537,
Madison General Ordinance § 31.11(1) provides that "new, relocated and replacement advertising signs are prohibited." Madison, Wis., Gen. Ordinance § 31.11(1) (2015). However "[e]xisting advertising signs are nonconforming and permitted to remain" in specified districts, including certain commercial and industrialized districts.
Adams states that the bridge "completely" blocks the view of the west-facing sign. However, the City explained:
[T]he west-facing side of the sign is not completely obscured. I've seen it several times myself. I know what it says. But the legal argument doesn't change, whether it's partially obscured or totally obscured. So if Adams wants for the summary judgment record to say that it's totally obscured, that's fine with me for purposes of the summary judgement decision.
At oral arguments before this court, the City reiterated that its stipulation that the bridge "completely" obstructs the view of the billboard was for the purposes of summary judgment only.
The City's appraiser disputes those figures, concluding that Adams' appraiser "overstate[d] the diminution value" in the appraisal prepared for the purposes of this lawsuit. According to the City's appraiser, it was "hard pressed to understand th[e] substantial change in real estate market value" asserted by Adams' appraiser because Adams purchased the property for $200,000 in 2007, yet it was assessed at over $1.4 million seven years later when no substantial improvements had been made to the property.
In its amended complaint, Adams asserted a variety of other claims against the City related to the construction of the bridge-namely trespass, nuisance, equal protection and due process violations, and a violation of the Highway Beautification Act. All were rejected by the lower courts. The only claim remaining before this court is Adams' takings claim.
Wisconsin Stat. § 32.10 -the inverse condemnation procedure-is the legislative direction for fulfilling the mandate of the just compensation clause of the Wisconsin Constitution. E-L Enters., Inc. v. Milwaukee Metro. Sewerage Dist.,
If any property has been occupied by a person possessing the power of condemnation and if the person has not exercised the power, the owner, to institute condemnation proceedings, shall present a verified petition to the circuit judge of the county wherein the land is situated asking that such proceedings be commenced. ... The court shall make a finding of whether the defendant is occupying property of the plaintiff without having the right to do so. ...
All subsequent references to the Wisconsin Statutes are to the 2013-14 version unless otherwise indicated.
Wisconsin courts generally apply the same standard when determining whether an unconstitutional taking has occurred under the Wisconsin and United States Constitutions. Wis. Med. Soc'y, Inc. v. Morgan,
The dissent errs by relying on a claim that is not made and facts that do not exist. It asserts that "the permit for the west-facing billboard" is the property interest at issue. Dissent, ¶ 47. This alternative definition of the property interest was first proposed in an amicus brief to this court by the Outdoor Advertising Association of Wisconsin. Neither party raised or briefed this alternative framing of the issue during the nearly four years of litigation in this matter.
In its complaint and amended complaint in the circuit court, Adams consistently and expressly framed its property interest as the "property rights in the [p]roperty and [s]ign." There is no mention of the billboard "permit" in Adams' amended complaint, or in its briefs to the court of appeals or this court. As further illustration that this case has nothing to do with a permit, neither party saw it necessary to introduce the permit into evidence. There is no billboard permit in this record.
Indeed, at oral arguments Adams conceded several times that it did not make a claim in this case that its billboard permit was the property interest that was taken:
The court: You're not claiming here, are you, that you have a property interest in the permit? I didn't see it in your complaint, I didn't see the word permit in your briefs, so I didn't think you were claiming that.
Adams: I think we do have a property interest in the permit. But I don't think that the property interest in the permit has been specifically taken in this case. The nature of the takings claim is the obstruction of the sign face (emphasis added).
The court: ... You're not claiming that in this case that the property that you want compensation for is the permit? Is that correct?
Adams: Not-That's correct, your honor. Not specifically.
Certainly Adams has forfeited any claim that the billboard permit constitutes a property interest. State v. Ndina,
The dissent also errs by relying heavily on facts not present in the record. Specifically, the dissent asserts that the City of Madison treats the two sides of its billboard as separate property by requiring an individual permit for each side, rather than issuing a single permit that covers the billboard structure as a whole. See dissent, ¶ 49. Indeed, this unsubstantiated factual allegation permeates the dissent's analysis. See id., ¶¶47, 55-56, 58-61, 63-69, 72-74.
At oral argument, the City disputed these alleged facts explaining that they are "not in the record" and that the City did not "believe that it's true" that separate permits were issued for each side of the billboard. The City explained:
[Counsel for Adams] stated in the oral argument today [that] it is a critical piece of the analysis that the City issued separate permits for the separate faces of the sign. Well there's a critical error in that argument. That being that that is not in the record. And I don't believe that it's true. There is some discussion in the amicus brief from the [Outdoor Advertising] Association regarding some law that the Association says would allow the City to do that, but there is nothing in the record to indicate that the City has actually treated the billboard that way and I don't believe that the City has. So that is a critical-critical problem.
See, e.g., Reid v. Jefferson Cty.,
Some jurisdictions take a more nuanced approach, providing that when there is a physical taking of private property, loss of visibility may be considered as an element of severance damages. See, e.g., 8,960 Sq. Feet, More or Less v. State, Dep't of Transp. & Pub. Facilities,
The dissent, too, appears to concede that the right to visibility from a public road is not a recognized property right. See dissent, ¶ 55 (listing four property interests at stake in this case, none of which includes a right of visibility).
Before the circuit court, counsel for Adams argued: "[A] property owner doesn't have an absolute right to unrestricted or unimpaired view of their property from some public space. But that assumes that the nature of the use or the use of your property isn't solely to be viewed. And that's what we've got here."
See, e.g., Moreton Rolleston, Jr. Living Tr. v. Dep't of Transp.,
Dissenting Opinion
¶ 47 "Property rights are necessary to preserve freedom, for property ownership empowers persons to shape and to plan their own destiny in a world where governments are always eager to do so for them." Murr v. Wisconsin, --- U.S. ----,
I
¶ 48 Adams Outdoor owns an irregular-shaped piece of land comprising less than *671half an acre in size along the Beltline Highway in Madison. The land's only "occupant" is a structure containing two billboards, also owned by Adams Outdoor. One billboard faces eastbound traffic and the other billboard faces westbound traffic. The City of Madison treats each billboard as separate property by requiring an individual permit for each side. Madison, Wis., Gen. Ordinance § 31.041(3) (2015). Adams Outdoor paid separate fees to secure the required permit for each billboard, it must pay advertising copy change fees per side when the content displayed on the billboard *399changes, and it is taxed separately for the west-facing and the east-facing billboard permit. Adams Outdoor owns the permits.
¶ 49 Many years ago, the City of Madison enacted an ordinance banning any new off-premise advertising signs. See Madison, Wis., Gen. Ordinance § 31.11. As a result of the ordinance, no new permits may be issued for any billboards not already in existence. The billboards with permits predating the ban are classified as legal, nonconforming signs.
¶ 50 The land upon which Adams Outdoor's billboard sits was valued at $1.46 million before the construction of the bridge. After the bridge was erected, the value of the land dropped to $720,000. For purposes of this appeal, it is undisputed that the bridge completely obscures the west-facing billboard.
¶ 51 The majority identifies "the essence" of Adams Outdoor's property interest to be "based upon a right of visibility of private property from a public road," denies a property owner any "property interest in the continued visibility of its property," and declines to address whether a taking occurred. Majority op. ¶¶ 29-30, 37, 46 ("In sum, we conclude that a right to *400visibility of private property from a public road is not a cognizable right giving rise to a protected property interest."). As a result, Adams Outdoor loses the freedom to use its property as it wishes and instead must submit to the government's preferences.
II
¶ 52 Whether the City's construction of a bridge constructively took Adams Outdoor's property is a question of law reviewed independently. See Howell Plaza, Inc. v. State Highway Comm'n,
*672Wis. Med. Soc'y, Inc. v. Morgan,
*401¶ 53 A property owner proves a taking when a government regulation or action denies him all or substantially all practical uses of his property. Zealy v. City of Waukesha,
¶ 54 In order to determine whether the government deprived an owner of all or substantially all economically viable use of property, a court first must define the property interest-commonly deemed the "denominator" because the court must compare the value taken from the property with the value that remains and the property's value therefore "furnish[es] the denominator of the fraction." Id. at 375,
[N]o single consideration can supply the exclusive test for determining the denominator. Instead, courts must consider a number of factors. These include the treatment of the [property] under state and local law; the physical characteristics of the [property]; and the prospective value of the regulated [property]. The endeavor should determine whether reasonable expectations about property ownership would lead a [property ]owner to anticipate that his holdings would be treated as one parcel, or, instead, as separate [property]. The inquiry is objective[.]
Murr,
*402A
¶ 55 Ascertaining the denominator-identifying the property interest-presents the threshold issue for the court to resolve. "[T]he answer to this question may be outcome determinative."
¶ 56 The majority avoids selecting any of these as the denominator; instead, it defines the property interest as the "right to visibility." In so doing, the majority ignores the essential fact that the west-facing billboard permit itself constitutes individual real property and the correct denominator in the takings analysis. Consequently, the majority reaches a legally erroneous outcome.
*673¶ 57 In Murr, the United States Supreme Court identified state law treatment of the property as a factor for determining the denominator.
¶ 58 Our court of appeals recently reiterated the same legal principle-"billboard permits are real property" and "the permit is the entire property itself." See Clear Channel Outdoor, Inc.,
¶ 59 Under Murr, courts must "give substantial weight to the treatment of the [property], in particular how it is bounded or divided, under state and local law."
¶ 60 The second Murr factor directs courts to examine the physical characteristics of the property.
¶ 61 Each permit's value depends entirely on prospective advertisers' willingness to rent the permitted billboard. In this regard, the physical characteristics of the billboard structure become relevant. City ordinance prohibits altering the structure *674in any manner that would restore the permit's value. However, in order to ameliorate the obstruction caused by the City's construction of the bridge, the billboard structure would need to move or be heightened. This is impossible because a City ordinance bans relocating, enlarging, repositioning, or raising in height any legal non-conforming sign. See Madison, Wis., Gen. Ordinance § 31.05; see also Adams Outdoor Advert. Ltd. P'ship v. City of Madison, No. 2016AP537, unpublished slip op., ¶ 2,
¶ 62 The City argues that Zealy,
*406¶ 63 In contrast, the affected property of Adams Outdoor is not a single, contiguous plot of land acquired in a single purchase and Adams Outdoor does not wish to change the nature of its use of the property in the future. Rather, Adams Outdoor owns several distinct units of property it desires to use in exactly the same manner it had always used the property, until the City materially interfered. Although the west-facing permit is connected in a sense to the other property, it is nonetheless treated as a distinct unit of individual real property under the law. Unlike Zealy, in which the property owner's use was unchanged by the rezoning, the bridge altogether extinguished Adams Outdoor's use of the west-facing billboard permit, thereby denying Adams Outdoor all economically viable use of not merely a segment of its property but the whole thing; no beneficial use of the west-facing permit remains.
¶ 64 Like Zealy, Randall also involved an undeveloped piece of contiguous land. The City of Milwaukee placed a pedestrian shelter on the sidewalk in front of part of the property owners' land, which abutted the street. Randall,
¶ 65 The third Murr factor examines "the value of the property under the challenged [governmental action], with special attention to the effect of burdened land on the value of other holdings."
¶ 66 Based on Wisconsin case law recognizing the billboard permit as the "entire" real property in and of itself, the permit for the west-facing sign is the appropriate denominator for assessing whether a constructive *408taking occurred, a conclusion that is bolstered by the Murr factors.
B
¶ 67 Having decided the proper denominator, the remaining question is whether the City's construction of the bridge constituted a compensable taking of Adams Outdoor's west-facing billboard permit. A compensable taking occurs if the City's action denied Adams Outdoor of all or substantially all "economically beneficial or productive use" of its property. See Lucas v. S.C. Coastal Council,
¶ 68 The only economically beneficial or productive use of the west-facing billboard permit is renting the west-facing billboard to advertisers. There is no question that before the bridge existed, this is exactly what Adams Outdoor did. The income from *676using the west-facing billboard permit was $8,000 per month or $96,000 per year. Adams Outdoor asserts this use of the west-facing billboard permit no longer exists. Advertisers will not want to rent the west-facing billboard, rendering its corresponding permit useless.
¶ 69 The City argues that the property retains beneficial use because Adams Outdoor can still profitably use its east-facing sign, and the law, according to the City, will not divide property into separate segments. The City's argument fails because the law recognizes each permit as a distinct, standalone unit of real property. The west-facing billboard permit is not a "piece" of the pie. It is the whole pie.
*409¶ 70 This case is more akin to Maxey v. Redevelopment Authority,
¶ 71 Adams Outdoor's property interest resembles the property interest in Maxey, not the single, contiguous piece of real property in Randall and Zealy. Maxey involved property with distinct and separate units: the lessor's interest as the owner of the building, and Maxey's interest as the owner of both a 99-year lease and an annually-renewable theatre license from the City.
¶ 72 The same is true for Adams Outdoor. It owns the west-facing billboard permit, whose sole economic benefit derives from renting the west-facing billboard to advertisers. The bridge deprives Adams Outdoor of economic use of the west-facing billboard permit, defeating *410Adams Outdoor's investment-backed expectations developed over years of consistent, unhindered use. The west-facing billboard permit is rendered useless as a result of the City's constructive taking of the west-facing billboard permit and the consequent deprivation of rental income. The City's action is a compensable taking.
C
¶ 73 Takings law, properly applied, prevents unfair burdens from being imposed on a single property owner for a government project that will benefit the public as a whole. Murr,
In adjudicating regulatory takings cases a proper balancing of these principles requires a careful inquiry informed by the specifics of the case. In all instances, the analysis must be driven "by the purpose of the Takings Clause, which is to prevent the government from 'forcing *677some people alone to bear public burdens which, in all fairness and justice should be borne by the public as a whole.' "
* * *
¶ 74 A lawful mechanism exists for invading the "sacred and inviolable rights of private property" as Blackstone outlined centuries ago:
So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community .... In vain may it be urged, that the good of the individual ought to yield to that of the community; for it would be dangerous to allow any private man ... to be the judge of this common good .... In this ... the legislature alone can ... interpose, and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner; but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is now considered as an individual, treating with an individual for an exchange. All that the legislature does is to oblige the owner to alienate his possessions for a reasonable price.
1 William Blackstone, Commentaries on the Laws of England 78-80 (George Chase ed., 4th ed. 1938) (1765). The City of Madison's construction of the bridge effected a compensable taking of Adams Outdoor's permit for the west-facing billboard because the City eliminated the only economically viable use of that permit.
¶ 75 The majority permits the unconstitutional taking of private property without just compensation, thereby threatening the freedom of all private property owners in Wisconsin. I respectfully dissent.
*678*413¶ 76 I am authorized to state that Chief Justice PATIENCE DRAKE ROGGENSACK and Justice DANIEL KELLY join this dissent.
Because a billboard permit is real property, the permit holder is referred to as the permit owner. See, e.g., Clear Channel Outdoor, Inc. v. City of Milwaukee,
The billboard structure itself is not real property; rather, it is personal property assessed separately from the permit and the land. Adams Outdoor Advert., Ltd. v. City of Madison,
Wisconsin Stat. § 70.03 defines real property as "not only the land itself but ... all fixtures and rights and privileges appertaining thereto[.]"
Significantly, Randall does acknowledge that "an owner of land abutting on a street has the right" of, among other things, "view"; the right to view is "subject to such public street use and purposes as the location of the street requires." Randall v. City of Milwaukee,
I acknowledge that the City maintains it conceded that the bridge completely obscured the west-facing billboard only for purposes of this appeal. The City asserts that if this court determines a taking occurred, the "completely obscured" stipulation no longer applies and the circuit court would need to find what percentage of the west-facing billboard has actually been obscured.
The majority objects to addressing the permit as the denominator because this argument was raised in the amicus curiae brief, the permit is not in the record, the City's attorney believes there is not a separate permit for each side of the billboard, and forfeiture should apply. See majority op., ¶ 24 n.8. Amicus curiae, or "friend of the court" briefs, may be filed only with permission of this court. See
Chief Justice: So, you're not claiming that the income you earn by based on the permit, you're not claiming that's a concern for us, right?
Adams Outdoor's lawyer: That is a concern, your Honor-
Chief Justice: Alright, that's different than your answer to Justice [A.W.] Bradley's question.
Adams Outdoor's lawyer: Maybe I misunderstood the question. Certainly, in terms of measuring the damages or impact or the value of that interest, whether you identify the value as flowing from the permit in the display of that sign or you just recognize that sign exists ... And it will generate a certain amount of revenue through the display of advertising. That number, tied to the permit or tied to the sign face will be the same issue.
In fact, Adams Outdoor's lawyer told the court at oral argument: "The permit to display the billboard is certainly a separate property interest that could be the subject of takings analysis in this case. I don't disagree with the amicus brief in that respect." And, he represented: "In fact, the city treats both sign faces as separate economic units by virtue of the fact that they have licensed both sign faces separately. And that's a critical piece of our analysis here. Certainly that license could stand for its own separate property interest that could be the subject of takings analysis." He asserted "I think we do have a property interest in the permit ...."
The City's attorney did not speak as definitively in responding that he merely believes Adams Outdoor's lawyer is wrong about the City issuing a separate permit for both the east- and west-facing billboards. Both the amicus lawyers and the lawyer representing Adams Outdoor unequivocally represented that the City issued two permits. Indeed, applicable law requires it. Far from being an "unsubstantiated factual allegation" as the majority characterizes it, majority op., ¶ 24 n.8, the existence of two permits is required by the City's own ordinance, Madison, Wis., Gen. Ordinance § 31.041(3) (2015).
As for forfeiture, it "is a rule of judicial administration, and as such, a reviewing court has the inherent authority to disregard a [forfeiture] and address the merits of an unpreserved issue in exceptional cases." Village of Trempealeau v. Mikrut,
Reference
- Full Case Name
- ADAMS OUTDOOR ADVERTISING LIMITED PARTNERSHIP, Plaintiff-Appellant-Petitioner, v. CITY OF MADISON, Defendant-Respondent.
- Cited By
- 5 cases
- Status
- Published