In 118th Street Kenosha, LLC v. Wisconsin Dep’t of Transportation, No. 2012AP2784 (Dec. 10, 2014), a condemnation case, the Wisconsin Supreme Court considered these three issues:
(1) Is a temporary limited easement compensable under Wis. Stat. § 32.09(6g)?
(2) Assuming that a temporary limited easement is compensable under Wis. Stat. § 32.09(6g), did the circuit court appropriately exercise its discretion when it excluded evidence of the commercial property’s diminution in value from lost direct access and proximity to 118th Avenue because the temporary limited easement did not cause the loss?
(3) Is the LLC barred from recovering compensation for the commercial property’s loss of direct access and proximity to 118th Avenue because the relocation of 118th Avenue was a proper exercise of the DOT’s police power?
The crux of the issue before this court is whether damages under Wis. Stat. § 32.09(6g) for the temporary limited easement include the commercial property’s diminution in value caused by its loss of direct access and proximity to 118th Avenue due to that road’s relocation, although the temporary limited easement did not cause that loss of direct access and
proximity.
Slip op. at 2. Short answer, no:
We conclude that the LLC is precluded from seeking damages under Wis. Stat. § 32.09(6g) for the commercial property’s diminution in value which resulted from its loss of direct access and proximity to 118th Avenue due to the 118th Avenue relocation. The temporary limited easement did not cause the commercial property to lose direct access and proximity to 118th Avenue, so damages under § 32.09(6g) for the temporary limited easement cannot include damages for the loss of direct access and proximity to 118th Avenue. Because the LLC seeks damages for its loss of direct access and proximity to 118th Avenue, the circuit court did not err by excluding evidence of those damages in the § 32.09(6g) claim for taking an easement. Thus, the LLC improperly seeks compensation under § 32.09(6g) for the commercial property’s diminution in value based on its lost direct access and proximity to 118th Avenue when 118th Avenue was relocated. Because our resolution of the narrow issue presented disposes of the LLC’s claim, we need not address the other issues presented.
Slip op. at 3.
118th Street Kenosha, LLC v. Wisconsin Dep’t of Transportation, No. 2012AP2784 (Wis. Dec. 10, 2014)