Spitzer v. State Dept. of Transp., 92-2735

Decision Date13 January 1994
Docket NumberNo. 92-2735,92-2735
Citation513 N.W.2d 707,181 Wis.2d 1004
CourtWisconsin Court of Appeals

Before EICH, C.J., GARTZKE, P.J., and SUNDBY, J.


The Department of Transportation (DOT) appeals from a judgment for $189,284 in damages and costs in favor of Nicholas Spitzer, following a jury trial. The trial was held on Spitzer's appeal of an award to him by the Commissioners of Condemnation for Dane County because DOT condemned his two access points to U.S. Highway 12 and the interchange between U.S. Highways 12 and 14 (USH 12 and USH 14).

The issues are: (1) Is Spitzer entitled to compensation if DOT failed to provide reasonable access to Highway 12 by means of a frontage road, even though it took no land with the two access points? (2) Is the question of reasonable access for the jury? (3) Did the trial court properly allow Spitzer's experts to testify to fair market values immediately before and after the taking, using a "cost to cure" analysis? (4) Did the court shift the burden of proof on valuation from Spitzer to DOT? We resolve the issues in favor of Spitzer and affirm.

1. Background

Spitzer sells trailers, truck caps, boats and recreational vehicle items at retail in the City of Middleton at the interchange between USH 12 and USH 14. The south and easterly sides of his business property front on USH 12, and he had access to the highway on each of those sides. Spitzer acquired his property in 1973. In 1950 DOT declared USH 12 a controlled-access highway. In 1986, it upgraded USH 12 to "freeway" status under § 84.295, Stats.

In 1988, DOT filed an award of damages by which it acquired Spitzer's two access points to USH 12 and the ramp leading from USH 12 to USH 14 but took no part of his 3.6 acres. DOT provided access from his property to Murphy Drive to the highway via a new road, Ellefson Court. Murphy Drive runs east and west and intersects with USH 12 about 800 feet north of Spitzer's property. Ellefson Court extends south from Murphy Drive and ends in a cul de sac adjacent to the north boundary of his property.

Section 84.295(5), Stats., provides in relevant part:

Where a state trunk highway is on or along any highway which is open and used for travel and is designated as a freeway or expressway, reasonable provision for public highway traffic service or access to abutting property shall be provided by means of frontage roads as a part of the freeway or expressway development, or the right of access to or crossing of the public highway shall be acquired on behalf of the state as part of the freeway or expressway improvement project.

In its brief, DOT acknowledges that § 84.295, Stats., applies to USH 12. DOT may designate an interstate highway as part of the state trunk system, provided certain conditions are met. Section 84.29(2) and (4), Stats. Section 84.295(5), Stats., required DOT either to acquire Spitzer's existing access rights or to build a frontage road providing his property with reasonable access to USH 12 as part of the freeway development. The jury found that DOT did not provide reasonable access to Spitzer's property by substituting the Ellefson Court access for the access points he lost to USH 12 and USH 14, and the fair market values of the property immediately before and after the taking were $300,000 and $177,000, respectively.

2. Right to Compensation in Absence of Reasonable Substituted Access

DOT contends that its acquisition of an owner's direct access to a freeway, without taking land from the owner, is a valid exercise of the state's police power requiring no further compensation, if it provides a replacement of reasonable access by a frontage road. The contention lacks pertinence. We are beyond the point of discussing police power. This case involves a statute, § 84.295(5), Stats. It is undisputed that all of the conditions for application of the statute have been satisfied. The only issue is whether DOT made "reasonable provision for public highway traffic service or access to abutting property ... by means of frontage roads as a part of the freeway or expressway development...." Id. If it did, then Spitzer is entitled to no compensation. If it did not, then he is entitled to compensation, since in that event the statute provides "the right of access to or crossing of the public highway shall be acquired on behalf of the state as a part of the freeway or expressway improvement project." Id. (Emphasis added

The phrase "shall be acquired on behalf of the state" means shall be acquired by eminent domain with payment of just compensation. Acquisition requiring just compensation is necessary only if the state has failed to provide reasonable substituted access. This is explained in Schneider v. State, 51 Wis.2d 458, 187 N.W.2d 172(1971):

Acquisition of property under the power of eminent domain requires just compensation for the taking of interests in property.... The right of access ... of an abutting property owner is a property right the taking of which requires compensation. However, there was no issue in this case concerning the adequacy of access from the ... property by the frontage road. Since the state provided reasonable access to and from the ... property by a frontage road there was no taking requiring compensation.

If by reason of providing a frontage road, or the existence of a previously existing connecting highway, there is reasonable access to the controlled-access highway, no taking requiring compensation should be held to have occurred....

Deprivation of direct access to a highway does not constitute a taking of property provided reasonable access remains.

Id. at 463, 187 N.W.2d at 174-75 (citations omitted) (emphasis added).

3. Reasonable Substituted Access

Since § 84.295(5), Stats., is applicable, and the jury found that DOT had not provided reasonable access to Spitzer's property, we turn to DOT's second contention: that the court rather than the jury should determine the reasonableness of the substituted access.

Existing precedent is to the contrary. In Seefeldt v. DOT, 113 Wis.2d 212, 220, 336 N.W.2d 182, 186(Ct.App.1983), we held that § 84.295(5), Stats., applied to a particular loss of access resulting from a highway project. We held that:

Since sec. 84.295(5), Stats., is applicable, the question now becomes: Have the appellants lost their reasonable access? This is a jury question. Because the reasonableness of access has been placed at issue in this case, the appellants are entitled to present evidence to the jury on the question of how reasonable their access will be after the highway project is completed.

Id. at 220-21, 336 N.W.2d at 186.

DOT discusses decisions from other states holding that whether a property owner's right of access has been substantially impaired or taken is a question of law. 1 However, because Seefeldt is directly on point and is a published decision by the court of appeals, it binds all panels of the court. 2 In re Court of Appeals, 82 Wis.2d 369, 371, 263 N.W.2d 149, 149-50(1978). 3

4. Valuations

DOT asserts that Spitzer's experts failed to follow § 32.09(6), Stats., in determining valuations. Section 32.09(6) provides that in the case of a partial taking, other than an easement, compensation is the greater of either the fair market value of the property taken as of the date of valuation or the sum determined by deducting from the fair market value of the whole property immediately before the date of the valuation, the fair market value of the remainder immediately after that date, and giving effect, "without restriction because of enumeration," several items of loss or damage to the property. Id.

Spitzer's appraisers gave their opinions regarding the fair market value of the property before and after DOT acquired his access points. They used the market data approach to determine the value of his...

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