Manthe v. Department of Transportation
| Decision Date | 07 February 2019 |
| Docket Number | Appeal No. 2017AP1598 |
| Parties | Roger S. MANTHE, Plaintiff-Appellant, v. State of Wisconsin DEPARTMENT OF TRANSPORTATION, Defendant-Respondent. |
| Court | Wisconsin Court of Appeals |
¶1 Roger S. Manthe appeals from an order of the circuit court dismissing Manthe’s appeal of damage awards issued by the Wisconsin Department of Transportation following the condemnation of property belonging to Manthe. Manthe contends that the circuit court erred in determining that he is not entitled to a writ of mandamus compelling DOT to issue an order designating United States Highway 51 as a freeway. Manthe also contends that WIS. STAT . § 84.295(3) (2017-18)1 violates his right to equal protection and that he has incurred non-access related damages for which he should have been compensated. For the reasons discussed below, we reject Manthe’s arguments and affirm the circuit court.
¶2 Manthe is a farmer. His farm consists of two parcels, a west parcel and an east parcel. On the west parcel sits Manthe’s family home, a milking operation, and all equipment storage. It is composed of approximately 250 acres and abuts the west side of Highway 51. The south boundary of the west parcel abuts Grinde Road.
¶3 The east parcel is located to the east of Highway 51. It is composed of 77.07 acres. Manthe uses the east parcel to raise young stock, which are housed in a 13,200 square foot heifer barn.
¶4 The two parcels are not contiguous. The east parcel does not abut Highway 51, but has frontage on the road that is designated Grinde Road west of Highway 51, but designated County Highway V east of Highway 51.
¶5 DOT undertook a highway improvement project to expand a portion of Highway 51 from two lanes to four lanes from the southern edge of Manthe’s west parcel at a point that is north of the southern boundary, but the record is unclear regarding precisely how far north of the southern boundary. Prior to the project, Grinde Road intersected with Highway 51 at grade level, allowing traffic to cross Highway 51 at that location. As part of the project, that intersection was eliminated so that traffic can no longer cross Highway 51 at that location.
¶6 The highway improvement project resulted in DOT taking 4.58 acres from Manthe’s west parcel and 5.41 acres from his east parcel. The project also resulted in Manthe having to travel a greater distance when traveling between the west and east parcels with farm equipment. Prior to the project, Manthe could cross Highway 51 at the intersection of Grinde Road and Highway 51, for a total travel distance of 1.1 mile. Following the project, Manthe’s route between the parcels has increased by approximately two miles. The issues on appeal stem from Manthe’s quest to obtain compensation for this increased travel time.
¶7 Manthe appealed to the circuit court from DOT’s compensation award for the taking of his property. After bringing this action, Manthe and DOT reached a settlement agreement under which the parties agreed that Manthe: is entitled to an additional $30,000 award of damages; waived any claim against DOT for costs and fees; and reserved his right to appeal any rulings and/or order by the circuit court. The circuit court dismissed the action upon the parties’ stipulation. Between the inception of the action and the court’s order dismissing the action, the parties brought a number of motions upon which the circuit court ruled. Manthe’s appeal concerns three of those rulings.
¶8 Manthe moved the circuit court to issue a writ of mandamus compelling DOT to designate Highway 51 as a freeway. Manthe contends that the circuit court erred by failing to compel DOT to designate Highway 51 as a freeway.
¶9 "A writ of mandamus is a discretionary writ in that it lies within the sound discretion of the [circuit] court to either grant or deny." Miller v. Smith , 100 Wis. 2d 609, 621, 302 N.W.2d 468 (1981). The grant or denial of a writ of mandamus will be affirmed unless the circuit court erroneously exercised its discretion. Id. To determine whether discretion has been properly exercised, we look to determine whether the relevant facts were examined, whether the proper standard of law was applied, and whether, using a demonstrated rational process, the decisionmaker reached a conclusion that a reasonable decisionmaker could have reached. See Flottmeyer v. Circuit Ct. for Monroe Cty. , 2007 WI App 36, ¶17, 300 Wis. 2d 447, 730 N.W.2d 421.
¶10 In order to determine if discretion was properly exercised in denying Manthe’s motion for a writ of mandamus, we must engage in statutory construction. On appeal, statutory construction is a question of law, which is subject to de novo review. State v. Cole , 2000 WI App 52, ¶3, 233 Wis. 2d 577, 608 N.W.2d 432.
¶11 Highway 51 has been designated as a controlled access highway since 1956. A controlled access highway is "a highway on which the traffic is such that [DOT] has ... declared it to be necessary ... to prohibit entrance upon and departure from the highway or street except at places specially designated and provided for such purposes, and to exercise special controls over traffic on such highway or street." WIS. STAT . § 84.25(2).
¶12 The freeway statute, WIS. STAT . § 84.295, does not define what constitutes a "freeway." However, Manthe relies on the definition of "[f]reeway" contained in WIS. STAT . § 990.01(9a).2 Section 990.01(9a) defines "freeway" as "a highway with full control of access and with all crossroads separated in grade from the pavements for through traffic." Manthe argues that, because the improved portion of Highway 51 meets § 990.01(9a) ’s definition of a freeway, Highway 51 must be designated as a freeway. There are several problems with this argument.
¶13 First, Manthe argues that DOT is compelled to declare a highway to be a freeway if the following preconditions are met: (1) it has a traffic volume of 4,000 vehicles per day; (2) DOT concludes that the volume and character of traffic and the public interest warrant the construction of a freeway; and (3) a public hearing on this issue is held by DOT.
¶14 Manthe asserts that Highway 51 has a traffic volume of 26,800 vehicles per day and that DOT scheduled a public hearing for Thursday, May 9, 2013. We assume without deciding that Manthe is correct on those two points. However, Manthe’s assertion that the second requirement, that DOT determined that the volume and character of traffic and the public interest warranted the construction of a freeway, is unsupported by the record and is conclusory. This court need not consider conclusory assertions. See Associates Fin. Servs. Co. of Wis., Inc. v. Brown , 2002 WI App 300, ¶4, n.3, 258 Wis. 2d 915, 656 N.W.2d 56. Manthe thus fails to demonstrate that his asserted preconditions for designating part of Highway 51 as a freeway have been met.
¶15 Second, Manthe’s assertion that DOT lacks discretion in deciding whether a section of highway should be designated as a freeway is legally baseless and contrary to the plain language of WIS. STAT . § 84.295(3).3 Section 84.295(3) states that, if the criteria for the designation of a freeway are met, DOT "may by order designate" a section of highway as a freeway. (Emphasis added). Use of the word "may" in a statute creates a presumption that the statute is permissive. McGuire v. McGuire , 2003 WI App 44, ¶26, 260 Wis. 2d 815, 660 N.W.2d 308. Manthe attempts to rebut the presumption by focusing on the difference in compensation for the loss of access to a controlled access highway as opposed to the loss of access to a freeway, but presents this court with only conclusory, unsupported assertions. We are not persuaded. By the plain language of the statute, the preconditions for designating a freeway cited by Manthe are prerequisites for the exercise of DOT’s discretion, not a mandate.
¶16 Further, language in WIS. STAT . § 84.295 removes any doubt that designation of a freeway is a discretionary obligation of DOT.4 That section provides that a portion of a highway has the status of a freeway only "[a]fter the adoption of an order by [DOT]." § 84.295(9). It also provides that, "[t]he action of [DOT] relative to designation , layout, location or relocation of any part of a freeway or expressway shall be conclusive." § 84.295(5) (emphasis added).
¶17 Finally, Manthe argues, repeatedly and each time in a conclusory fashion, that what DOT built was a freeway because the improved portion of Highway 51 is four lanes in width and has access at only two intersections. However, this argument goes nowhere because WIS. STAT . § 84.25(3), which governs controlled access highways, gives DOT sufficient discretion to construct roads in whatever design meets the purpose of the controlled access designation. That power is sufficiently broad to encompass four lane divided highways. In addition, DOT is unambiguously given the discretion to close intersections. See § 84.25(3). The design characteristics of a roadway relied upon by Manthe are not unique to freeways.5
¶18 For all of these reasons, we conclude that the circuit court did not erroneously exercise its discretion by declining to issue a writ of mandamus.
¶19 Manthe contends that WIS. STAT . § 84.295(3) violates his right to equal protection by giving DOT discretion to construct a four lane closed access divided roadway and not classify that roadway as a freeway.
¶20 Constitutional questions present mixed questions of fact and law. We will uphold a circuit court’s factual findings unless they are clearly erroneous, but we will independently decide whether those facts meet the constitutional standard. State v. Samuel , 2002 WI 34, ¶15, 252 Wis. 2d 26, 643 N.W.2d 423. "We generally presume that statutes are constitutional." League of Women Voters of Wis. Educ. Network,...
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