In Adams Outdoor Advertising, LP v. City of Madison, No. 2016AP537 (June 19, 2018), the Wisconsin Supreme Court held that the City's construction of a bridge next to -- but not on -- property on which Adams maintained a non-conforming billboard, was not a taking.
There didn't seem to be much of a dispute about the economic impact of the bridge on Adams -- its appraiser testified the before-and-after delta was $740,000, a more than 50% loss. Adams asserted the bridge blocked drivers' views of the west side of its billboard, and that as a consequence, no one wanted to rent space. The other side of the billboard wasn't affected. Adams brought an inverse condemnation lawsuit.
The trial court and the court of appeals agreed with the city that Adams had no claim because it didn't own "property," defined here as an interest in certain views of its billboard from a public road.
The Wisconsin Supreme Court affirmed, holding that under both the Fifth Amendment and the Wisconsin Constitution, Adams did not possess a compensable property interest in the views of its billboard from the public road. Go to page 9 of the opinion for the start of the court's analysis. Like most battles in these kind of cases, this one centered on which party's narrative was more convincing: the city asserted the property at stake was the view of the billboard from the road, while Adams argued the property should be defined as the "preexisting right to the legal nonconforming use of its property." Slip op. at 9. In short, the nonconforming use permit.
That dispute was resolved by the court on a point of appellate procedure: the argument had only been raised in an amicus brief, and not in the lower courts or in Adams' principal briefs on appeal. Thus, the court concluded in an extended footnote, "[c]ertainly Adams has forfeited any claim that the billboard permit constitutes a property interest." Slip op. at 10 & n.8.
The court concluded the loss of visibility was a mere consequential damage resulting from the bridge construction and not a taking for public use. Because there's no private rights in the flow of traffic on a road, "it reasonably follows that it does not have a property interest in the continued visibility of its property from that road." Slip op. at 15.
¶38 In sum, private property owners abutting public roads are aware that public roads are subject to change. See Randall, 212 Wis. at 378. There is an ever-present risk that public roads may be improved in any number of ways. Id. Streets are routinely expanded or relocated and can be elevated or modified by the construction of electrical poles, signage, or pedestrian shelters. Id. at 379-82. Often roads can be closed for an extended period of time due to construction. A myriad of examples exists.¶39 Property owners are on notice that such changes may alter or obstruct the view of their private property from the public road. Id. at 379-81. It is not reasonable for a property owner to rely on the fact that it is located near a public road in a certain condition at a particular moment in time. See Surety Sav. & Loan Ass'n, 54 Wis. 2d at 444.
Slip op. at 16. Footnote 9 on page 17 is the opinion's version of "so say we all," because it runs down how other jurisdictions have adopted the same rule.
A single Justice dissented, and even though her opinion did not carry the day, it's worth reading. Building the bridge "obliterated" the value of Adams' nonconforming use permit, and compensation should have been paid. The denominator here was not some vague right to be seen, but was the west-facing billboard permit, standing alone (citing Murr v. Wisconsin). The dissenting opinion relied heavily on U.S. Supreme Court cases, perhaps inviting Adams to take this issue further up the food chain.
We'll see.
Adams Outdoor Advertising, LP v. City of Madison, No. 2016AP537 (Wis. June 19, 2018)