DEKK Prop. Dev. v. Wis. Dep't of Transp.
| Decision Date | 27 January 2022 |
| Docket Number | 2020AP2146 |
| Parties | DEKK Property Development, LLC, Plaintiff-Respondent, v. Wisconsin Department of Transportation, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
Not recommended for publication in the official reports.
APPEAL from an order of the circuit court for Kenosha County No 2019CV1226: ANTHONY G. MILISAUSKAS, Judge. Reversed and cause remanded with directions.
Before Fitzpatrick, Graham, and Nashold, JJ.
¶1 DEKK Property Development, LLC, ("DEKK") owns property near the intersection of State Trunk Highway 50 ("STH 50") and County Highway H ("CTH H") in Kenosha County. As part of a highway improvement project for STH 50, the Wisconsin Department of Transportation ("DOT") has taken, through eminent domain procedures, a portion of DEKK's property located along CTH H.[1] The DOT further determined that it will close a driveway that connects DEKK's property to STH 50. The DOT compensated DEKK for the property it took along CTH H, but it does not propose any compensation for the closure of DEKK's driveway to STH 50.
¶2 DEKK brought an action in the Kenosha County Circuit Court against the DOT alleging that the DOT is required to provide compensation for the closure of DEKK's driveway to STH 50. The DOT moved for summary judgment arguing that: DEKK did not challenge the driveway closure under the proper procedural statute; and DEKK is not entitled to compensation for the driveway closure. The circuit court denied the DOT's motion and instead granted summary judgment to DEKK, concluding that DEKK brought its action under the proper procedural statute and DEKK must be compensated for the closure of the driveway because DEKK has "some sort of right of access to this driveway." The DOT appeals.[2]
¶3 We conclude that the circuit court erred in granting summary judgment in DEKK's favor. DEKK is not entitled to compensation for the closure of its driveway to STH 50 because the closure is based on the DOT's police powers and the terms of a 1961 indenture entered into by DEKK's predecessor in interest and the DOT. Because that issue is dispositive, we do not reach the question of whether DEKK's complaint was brought pursuant to the proper procedural statute. We therefore reverse the circuit court's order granting summary judgment in favor of DEKK and remand this matter to the circuit court to enter an order granting summary judgment in favor of the DOT.
¶4 There is no dispute as to the following material facts.
¶5 DEKK owns approximately four acres of vacant land near the southeast corner of the intersection of STH 50 and CTH H in Kenosha County. The western boundary of DEKK's property abuts CTH H. DEKK does not own the property at the corner of that intersection.
¶6 As part of a current highway improvement project for STH 50 the DOT condemned, through eminent domain procedures, a portion of DEKK's land on the western boundary of its property that runs parallel to CTH H. Specifically, the DOT has taken 0.342 acres of DEKK's land in fee simple, 0.0001 acres as a permanent limited easement, and 0.13 acres as a temporary limited easement. The DOT did not seek to acquire any of DEKK's land along STH 50 for the current project. DEKK's property has two driveway connections-one to CTH H and one to STH 50. DEKK will retain its driveway access to CTH H as part of the current project.
¶7 An earlier highway improvement project on STH 50 is pertinent to this appeal. As part of that project, a prior owner of DEKK's property (who we will refer to as the "grantor" or "predecessor in interest") executed an indenture[3] in 1961. Pursuant to this indenture, for a payment of $10, 500, DEKK's predecessor in interest conveyed "Fee Title" to Kenosha County, as agent for the DOT, [4] for 0.17 acres of land. In addition, the grantor conveyed to the DOT "the Right of Access, including all existing, future or potential common law or statutory easements or rights of access between any traveled way of S.T.H. 50, and the … land of the owner [described in the indenture] it abuts upon said highway." Further, in what we refer to as the "driveway reservation" of the indenture, the grantor reserved a driveway connection to STH 50:
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 the date of this conveyance and then to become a private driveway conforming to the regulations of the State Highway Commission. Said driveway to be constructed with its eastern limits along the east line of the owner's property line in conformance with State Highway Commission policy.[5]
The basis for the payment of $10, 500 was further explained in the indenture: "The consideration stated herein is payment in full for the conveyance of property described herein and includes full compensation for items of damage set forth in Chapter 32, Wisconsin Statutes, assuming the completion of the improvements contemplated by the relocation order or orders upon which this conveyance is based."[6]
¶8 For the current project, the DOT commissioned an appraisal of the property that would be acquired from DEKK's land abutting CTH H. The appraisal noted that DEKK's property has a driveway connection to STH 50, but stated that the driveway to STH 50 would be closed and that no amount was included in the appraisal for that driveway closure.
¶9 DEKK inquired about the STH 50 driveway closure described in the appraisal. A DOT real estate specialist explained that the right of access between the DEKK property and STH 50 was acquired by the DOT through the 1961 indenture. The specialist also stated that DEKK would not be compensated for the closure of the driveway to STH 50 because that driveway would not be closed as part of the eminent domain taking of a portion of DEKK's property abutting CTH H. Rather, the DOT would close that driveway through its police power and, as such, that action would be "non-compensable."
¶10 Pursuant to Wis.Stat. § 32.05(3), the DOT issued a jurisdictional offer to purchase the portion of DEKK's property along CTH H as well as an "Award of Damages" for that taking. The jurisdictional offer and award set forth the amounts for the taking of DEKK's property along CTH H in fee simple, as a permanent limited easement, and as a temporary limited easement, but did not include any amount for the closure of the driveway connecting DEKK's land to STH 50.
¶11 DEKK filed a complaint in the circuit court claiming that the DOT does not have the authority to close DEKK's driveway to STH 50 without compensating DEKK for the closure through eminent domain procedures. DEKK's complaint was based on the procedure set forth in Wis.Stat. § 32.05(5).[7] The complaint alleged that the DOT did not acquire DEKK's right of access to STH 50 through the 1961 indenture. Accordingly, DEKK sought a declaration from the court that the "DOT has no power or right under the police power" to close DEKK's driveway to STH 50.
¶12 The DOT filed a motion for summary judgment arguing that it was entitled to judgment as a matter of law for two principal reasons: (1) DEKK cannot properly contest the DOT's closure of DEKK's STH 50 driveway under Wis.Stat. § 32.05(5); and (2) the DOT has the authority to close DEKK's driveway to STH 50, without compensation to DEKK, based on the terms of the 1961 indenture and police power granted to the DOT. DEKK responded in the circuit court and requested that summary judgment be granted in its favor on both issues.
¶13 During summary judgment briefing, the DOT sent a letter to DEKK providing notice that the DOT was acting to close DEKK's driveway to STH 50 and the closure would be done pursuant to Wis. Admin. Code § Trans 231.03(2) (Nov. 2021).[8] The DOT explained in the letter that, if DEKK wished to contest the driveway removal, then DEKK should submit an "objection letter" within 30 days. Rather than submit such a letter, DEKK filed a motion in the circuit court requesting a temporary restraining order and temporary injunction prohibiting the DOT from closing DEKK's driveway access to STH 50.
¶14 The circuit court granted summary judgment in DEKK's favor and denied the DOT's motion. The court concluded that DEKK properly brought its claim under Wis.Stat. § 32.05(5). The court further concluded that DEKK possessed the right of access to the STH 50 driveway and must be compensated for its taking:
So it's quite clear here that the plaintiff had some sort of right of access to this driveway. It is a reserved right, but it's still a right of having this access on Highway 50. So if we look at the issues here, if the plaintiff has this reserve right, I think there should be just compensation.[9]
The court also granted DEKK's motion for a temporary injunction and prohibited the DOT from closing DEKK's driveway to STH 50 until the DOT exercised its right of appeal.
¶15 The DOT appeals the circuit court's order granting summary judgment to DEKK.
¶16 We mention other undisputed material facts in the following discussion.
¶17 The DOT argues that the circuit court erred in denying its motion for summary judgment and granting summary judgment in DEKK's favor. Specifically, the DOT contends that: (1) DEKK is not entitled to compensation for the DOT's closing of DEKK's driveway to STH 50 based on the terms of the 1961 indenture and because the closing of the driveway is done through DOT's police power authority rather than through the DOT's eminent domain authority; and (2) DEKK improperly raised the claim in its complaint through a "right-to-take" action under Wis.Stat. § 32.05(5). For its part, DEKK argues that the DOT cannot close its driveway to...
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