Dekk Prop. Dev., LLC v. Wis. Dep't of Transp.

Docket Number2020AP2146
Decision Date18 April 2023
Citation406 Wis.2d 768,2023 WI 30,988 N.W.2d 653
Parties DEKK PROPERTY DEVELOPMENT, LLC, Plaintiff-Respondent-Petitioner, v. WISCONSIN DEPARTMENT OF TRANSPORTATION, Defendant-Appellant.
CourtWisconsin Supreme Court

For the plaintiff-respondent-petitioner, there were briefs filed by Alan Marcuvitz, Andrea Roschke, Smitha Chintamaneni, Adam S. Bazelon, and von Briesen & Roper, S.C., Milwaukee. There was an oral argument by Alan Marcuvitz.

For the defendant-appellant, there was a brief filed by Hannah S. Jurss, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general. There was an oral argument by Hannah S. Jurss, assistant attorney general.

KAROFSKY, J., delivered the majority opinion of the Court, in which ZIEGLER, C.J., ANN WALSH BRADLEY, ROGGENSACK, DALLET and HAGEDORN, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion.


¶1 This controversy stems from a driveway closure—specifically, the Wisconsin Department of Transportation's (DOT's) closure of a driveway connecting DEKK Property Development, LLC's (DEKK's) property to State Trunk Highway (STH) 50. DEKK is seeking compensation for the closure. The case potentially raises two questions: (1) whether DEKK may seek compensation for the driveway closure in a "right-to-take" action under Wis. Stat. § 32.05(5) (2021-22),1 and (2) if so, whether DOT must compensate DEKK for the closure. We hold that DEKK may not bring its claim under § 32.05(5), and thus we do not reach the second question. Section 32.05(5) provides a means to challenge DOT's right to take property described in a jurisdictional offer issued under § 32.05(3), and here DOT's jurisdictional offer to DEKK did not describe any removal of access to STH 50. Therefore, the circuit court2 should have granted DOT's summary judgment motion and dismissed DEKK's claim. Because this procedural issue is dispositive, we do not decide the question of whether DEKK might be owed compensation had it challenged the driveway closure via a different avenue.


¶2 DEKK owns approximately four acres of property (the Property) in Kenosha County near the southeast corner of STH 50 and County Highway (CTH) H. The following is an aerial photo of the Property.3 STH 50 runs east-west along the top of the photo, and CTH H runs north-south on the left. There is one driveway from the Property to STH 50, which DOT seeks to close, and one driveway from the Property to CTH H, which will remain available for use.


¶3 In 1961, the former owners of a portion of the property deeded to Kenosha County (acting as an agent for DOT) "the Right of Access, including all existing, future, or potential common law ... rights of access" to STH 50, along with a tract of land adjacent to STH 50. This tract included the land on which the contested STH 50 driveway is located. The deed included the following exception:

Except there is reserved the right of access to said highway by means of one restricted driveway same to be used only for barber shop purposes for the term of fifteen years from date of this conveyance and then to become a private driveway conforming to the regulations of the State Highway Commission. Said driveway is to be constructed with its eastern limits along the east line of the owner's property line in conformance with State Highway Commission policy.

There is little information on any subsequent use or development of the STH 50 driveway in the record.

¶4 In 2019, DOT sought to acquire another part of the Property—a strip of land abutting CTH H—as part of a project to improve STH 50. After DOT decided to acquire the CTH H parcel, it commissioned an appraisal of the parcel as required by Wis. Stat. § 32.05(2)(a). The appraisal report assessed the CTH H parcel, and explained that DOT was not seeking to acquire any access rights. The report noted that the driveway between the Property and STH 50 (located on a different part of the Property than the CTH H parcel) would have to be closed. It also noted that DOT would not compensate DEKK for the STH 50 driveway because the commercial building that the driveway formerly served had been demolished, and redevelopment of the property would "likely require new driveway approvals in an alternate location farther from the intersection."

¶5 After DOT provided the appraisal report to DEKK, DEKK emailed DOT to ask about the lack of compensation for the STH 50 driveway closure. A DOT real estate specialist explained that "at the time of acquisition the current driveway will still remain in place," and that any revocation of the access point would be "non-compensable now because it has not happened yet, and if it ever did, it would be through police power."

¶6 DOT then issued a jurisdictional offer to DEKK as required by Wis. Stat. § 32.05(3). In the jurisdictional offer, DOT offered to purchase the CTH H parcel for $272,100. It did not offer to purchase any access rights, allocate compensation for any loss of access rights, or reference any driveway closures. The jurisdictional offer included a Transportation Project Plat, which denoted the property interests DOT sought to acquire. We include the relevant portion of the Plat below:

The CTH H parcel is identified on the left side of the Property. Arrows point? to the part of the parcel DOT sought to purchase in fee simple (indicated by diagonal lines), the part on which it sought a temporary limited easement (indicated by dots), and the part on which it sought a permanent limited easement (too small to be visible on this Plat). DEKK does not challenge the purchase of the land or easements.

¶7 After DOT issued the jurisdictional offer, DEKK filed an action under Wis. Stat. § 32.05(5) in the Kenosha County Circuit Court. DEKK did not challenge the acquisition of the CTH H parcel, but instead challenged "DOT's right to remove DEKK's rights of access to STH 50." Both DOT and DEKK moved for summary judgment.

¶8 Shortly after the filing of the summary judgment motions, but before the circuit court's decision, DOT sent a letter to DEKK providing "official notice" that it "plan[ned] to remove the existing driveway from State Highway 50 ... during an upcoming improvement project." The letter explained that under Wis. Admin. Code § Trans 231.03(2), the number of driveways serving a property along a state trunk highway shall be the "minimum" deemed necessary "for reasonable service to the property without the undue impairment of safety, convenience, and utility of the highway," and "[r]emoving unnecessary access points ... increases the mobility of the highway facility while reducing the potential for crashes as vehicles enter and leave the highway." The letter further explained that DEKK could contest the removal by submitting an objection letter to DOT, and DOT would then send a "revocation letter" if either DEKK failed to respond to the notice or DOT upheld its revocation decision. Because DEKK initiated this challenge under Wis. Stat. § 32.05(5) prior to DOT sending the official notice, the record is unclear as to whether DEKK took advantage of DOT's administrative review process, or whether DOT subsequently sent a revocation letter.

¶9 After receiving the notice, DEKK filed a motion for a temporary restraining order and injunction to prevent DOT from closing the driveway. The circuit court granted DEKK's motion for the injunction along with its motion for summary judgment, reasoning that DEKK had "some sort of right of access" to the driveway and thus deserved compensation for its closure. The court further determined that DEKK properly filed its claim under Wis. Stat. § 32.05(5). DOT appealed, and the court of appeals reversed, reasoning that the 1961 transaction only reserved the right to use the driveway subject to DOT regulations, and DOT was within its rights to close the driveway without compensation as an exercise of police power. Because the court of appeals held for DOT on the merits, it did not address DOT's alternative argument that § 32.05(5) was not the proper procedural mechanism for DEKK's claim. We granted DEKK's petition for review and now affirm the court of appeals on the alternative procedural grounds.


¶10 This case requires us to review the circuit court's decision to grant summary judgment for DEKK and deny summary judgment for DOT. Summary judgment is appropriate when there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. McKee Fam. I, LLC v. City of Fitchburg, 2017 WI 34, ¶27, 374 Wis. 2d 487, 893 N.W.2d 12. We review summary judgment decisions independently. Id.

¶11 In determining whether either party is entitled to judgment as a matter of law, we must determine whether DEKK may bring its claim under Wis. Stat. § 32.05(5). To do so, we must interpret and apply the statute. Statutory interpretation presents a question of law that we review independently. 260 N. 12th St., LLC v. DOT, 2011 WI 103, ¶39, 338 Wis. 2d 34, 808 N.W.2d 372.


¶12 We begin our analysis with a brief review of the relevant principles and procedures that apply when DOT seeks to acquire private property by eminent domain. We then turn to the different means by which property owners may challenge or seek compensation for DOT's actions. Finally, we examine whether in this case DEKK may bring its claim in a Wis. Stat. § 32.05(5) right-to-take action.

¶13 When DOT determines that it is necessary to take private property under its eminent domain authority, it must pay just compensation. U.S. Const. amend. V. ("nor shall private property be taken for public use, without just compensation."); Wis. Const. art. I, § 13 ("The property of no person shall be taken for public use without just compensation therefor."). But not all state actions that affect private property result in a compensable taking. 118th St. Kenosha, LLC v. DOT, 2014 WI 125, ¶32, 359 Wis. 2d 30, ...

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